Com. v. Wilson, B.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BRANDON EDWARD WILSON :
:
Appellant : No. 732 MDA 2022
Appeal from the Judgment of Sentence Entered March 16, 2022
In the Court of Common Pleas of Union County Criminal Division at
No(s): CP-60-CR-0000143-2021
BEFORE: PANELLA, P.J., BENDER, P.J.E., and NICHOLS, J.
MEMORANDUM BY BENDER, P.J.E.: FILED: MARCH 7, 2023
Brandon Edward Wilson (“Appellant”) appeals from the judgment of
sentence of 9 to 24 months’ incarceration imposed after he was convicted of
one count each of endangering the welfare of a child (“EWOC”),1 simple
assault,2 and harassment.3 Appellant challenges the sufficiency of the
evidence to sustain his EWOC conviction and alleges the verdict on this charge
is against the weight of the evidence. He also challenges the admission into
evidence of out-of-court statements made by the child victim. We affirm.
____________________________________________
1 18 Pa.C.S. § 4304(a).
2 18 Pa.C.S. § 2701(a)(1).
3 18 Pa.C.S. § 2709(a)(1).
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The aforementioned charges stem from a ChildLine4 referral received by
Pennsylvania State Trooper Tyler Arbogast on May 7, 2021, alleging that a
minor victim, N.W.S. (“Child”) (born in April of 2010), was being physically
abused by Appellant.5 Affidavit of Probable Cause, 5/26/21, at 1. In response
to the ChildLine referral, Trooper Arbogast interviewed Child and her biological
father, N.S. (“Father”). Subsequently, on May 7, 2021, the Commonwealth
filed a criminal complaint against Appellant, charging him with the following
offenses: strangulation,6 EWOC, simple assault, and harassment. See
Complaint, 5/26/21, at 1-4. The criminal information indicated that between
January 1, 2020 and May 26, 2021, Appellant “place[d] his hands around the
neck of [Child] … to choke her,” and “on numerous occasions, [Appellant
struck Child,] …, pulled her hair, picked [her] up and slammed her to the
ground, [and] held her hands behind her back while [he] struck her with a
belt[.]” Criminal Information, 6/11/21, at 1.
A jury trial was held on February 11, 2022, at which Child’s mother,
S.W. (“Mother”), grandmother, D.W. (“Grandmother”), and Father testified on
behalf of the Commonwealth. The Commonwealth also produced Trooper
____________________________________________
4 ChildLine operates a statewide system for receiving reports of suspected
child abuse, referring the reports for investigation and maintaining the
reports. 23 Pa.C.S. § 6332.
5 Appellant is Child’s stepfather.
6 18 Pa.C.S. § 2718(a)(1).
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Arbogast, Trooper Jessica Naschke,7 and Union County Children and Youth
Services (“CYS”) caseworker, Megan Jones, as witnesses. Prior to the trial,
the trial court found Child “unavailable as a witness,” pursuant to
Pennsylvania’s Tender Years Hearsay Act (“TYHA”), 42 Pa.C.S. § 5985.1, and
granted the Commonwealth’s motion in limine, permitting certain out-of-court
statements made by Child regarding Appellant’s actions to be admitted at trial.
After considering all of the evidence presented, Appellant was convicted of
EWOC, simple assault, and harassment.8 The trial court sentenced Appellant
on March 16, 2022, to an aggregate term of 9 to 24 months’ incarceration.
Appellant filed a post-sentence motion for relief, which was denied by
the trial court on May 6, 2022. That same day, Appellant filed a timely notice
of appeal, followed by a timely, court-ordered Pa.R.A.P. 1925(b) concise
statement of errors complained of on appeal. The trial court issued its Rule
1925(a) opinion on July 1, 2022, in which it incorporates its May 6, 2022
opinion, as well as the notes of testimony from the February 9, 2022 motion
in limine hearing and the February 11, 2022 jury trial. Appellant now presents
the following claims for our review:
1. Did error occur in granting the Commonwealth’s Motion in
Limine pursuant to 42 Pa.C.S. [§] 5985.1[,] as there was no
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7 Trooper Naschke works with the Criminal Investigative Unit of the
Pennsylvania State Police and assisted Trooper Arbogast with interviewing the
Child in this matter. N.T. Trial, 2/11/22, at 62.
8 Appellant was acquitted of the strangulation charge.
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way to determine that the possibility of testimony caused the
subject child’s reluctance?
2. Did error occur as the evidence was insufficient to convict,
specifically where the Commonwealth did not establish each
alleged act of violence “on numerous occasions…” as claimed
in Count Two of the Criminal Information?
3. Did error occur as the verdict was against the weight of the
evidence, specifically where the claims of abundant physical
violence did not comport with the minimal examples of
purported injury?
Appellant’s Brief at 5.
I. Motion in Limine
In his first issue, Appellant challenges the trial court’s evidentiary ruling
regarding the Commonwealth’s motion in limine.
A trial court’s decision to grant or deny a motion in limine “is
subject to an evidentiary abuse of discretion standard of review.”
[Commonwealth v. Reese, 31 A.3d 708, 715 (Pa. Super. 2011)
(en banc)].
Questions concerning the admissibility of evidence lie within
the sound discretion of the trial court, and we will not
reverse the court’s decision absent a clear abuse of
discretion. Commonwealth Financial Systems, Inc. v.
Smith, 15 A.3d 492, 496 (Pa. Super. 2011) (citing Stumpf
v. Nye, 950 A.2d 1032, 1035-36 (Pa. Super. [2007])). “An
abuse of discretion may not be found merely because an
appellate court might have reached a different conclusion,
but requires a manifest unreasonableness, or partiality,
prejudice, bias, or ill-will, or such lack of support so as to be
clearly erroneous.” Grady v. Frito-Lay, Inc., … 839 A.2d
1038, 1046 (Pa. 2003).
Keystone Dedicated Logistics, LLC v. JGB Enterprises, Inc.,
77 A.3d 1, 11 (Pa. Super. 2013). In addition, “to constitute
reversible error, an evidentiary ruling must not only be erroneous,
but also harmful or prejudicial to the complaining party.”
Winschel v. Jain, 925 A.2d 782, 794 (Pa. Super. 2007) (citing
McClain v. Welker, 761 A.2d 155, 156 (Pa. Super. 2000)).
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Parr v. Ford Motor Co., 109 A.3d 682, 690-91 (Pa. Super. 2014).
Here, the Commonwealth filed a motion in limine requesting that the
trial court allow for admission at trial certain out-of-court statements made by
Child,9 pursuant to the TYHA, which provides, in relevant part:
(a) General rule.—
(1) An out-of-court statement made by a child victim or witness,
who at the time the statement was made was 16 years of age or
younger, describing any of the offenses enumerated in paragraph
(2), not otherwise admissible by statute or rule of evidence, is
admissible in evidence in any criminal or civil proceeding if:
(i) the court finds, in an in camera hearing, that the
evidence is relevant and that the time, content and circumstances
of the statement provide sufficient indicia of reliability; and
(ii) the child either:
(A) testifies at the proceeding; or
(B) is unavailable as a witness.
…
(a.1) Emotional distress.—In order to make a finding under
subsection (a)(1)(ii)(B) that the child is unavailable as a witness,
the court must determine, based on evidence presented to it, that
testimony by the child as a witness will result in the child suffering
serious emotional distress that would substantially impair the
child’s ability to reasonably communicate. In making this
determination, the court may do all of the following:
(1) Observe and question the child, either inside or outside the
courtroom.
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9 The Commonwealth sought to introduce as evidence statements that Child
made to her Mother and Grandmother, as well as to Trooper Naschke and Ms.
Jones, regarding Appellant’s abusive acts towards her. Motion in Limine,
2/3/22, at 1-2 ¶¶2, 4.
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(2) Hear testimony of a parent or custodian or any other person,
such as a person who has dealt with the child in a medical or
therapeutic setting.
42 Pa.C.S. § 5985.1(a), (a.1).
Appellant claims that the trial court misapplied the TYHA in granting the
Commonwealth’s motion in limine and that, in doing so, denied Appellant the
opportunity to confront his accuser. Appellant’s Brief at 10. He argues:
While the … [C]hild was undeniably recalcitrant, there was no way
to determine that the possibility of testimony caused her
reluctance. Based on [Mother’s] testimony, the [Child] was
reluctant to interact with anyone. Testimony would not cause
serious emotional distress and impair her ability to communicate;
that was her very nature. While that fact may be uncomfortable,
it is not something that should preclude an accused from a fair
opportunity to confront his accuser.
Id. at 9-10. No relief is due on this claim.
As our Supreme Court explained in Commonwealth v. Walter, 93 A.3d
442 (Pa. 2014):
Under the TYHA, an out-of-court statement of a child … victim or
witness who is [sixteen] years old or younger,[10] is admissible
into evidence in a criminal or civil proceeding if two requirements
are satisfied. First, the trial court must find that the evidence is
relevant and that the time, content, and circumstances of his
statement provide sufficient indicia of reliability. Second, the child
must either (1) testify at the proceeding, or (2) be deemed
unavailable as a witness. 42 Pa.C.S.[] § 5985.1(a)(2)(i), (ii). In
order for the child to be deemed unavailable to testify as a
witness, “the court must determine, based on evidence presented
to it, that testimony by the child as a witness will result in the
child suffering serious emotional distress that would substantially
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10 At the time of the Walter decision, the TYHA applied to child victims 12
years of age or younger. The TYHA was amended effective August 30, 2021,
to include child victims 16 years of age or younger. See 2021, June 30, P.L.
172, No. 29 § 1.
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impair the child’s ability to reasonably communicate.” [42
Pa.C.S.] § 5985.1(a.1). In making this determination, the court
may (1) observe and question the child, either inside or outside
of the courtroom; and (2) hear testimony of the child’s parent or
custodian or any other person who has dealt with the child in a
medical or therapeutic setting. [42 Pa.C.S.] § 5985.1(a.1)(1),
(2). The TYHA does not require that a trial court’s determination
of unavailability be supported by expert testimony.
Walter, 93 A.3d at 454.
In the case sub judice, Appellant does not contest Child’s qualifying age
under the statute or the reliability of her statements. Rather, Appellant only
attacks the trial court’s determination that Child was unavailable as a witness.
See Appellant’s Brief at 8-10. Thus, our analysis is limited to the trial court’s
finding that Child’s statements were admissible at trial under the TYHA, “as …
[C]hild was totally uncommunicative during the [c]ourt’s in camera review
with her.” Trial Court Order, 2/9/22 (single page).
At a hearing on February 9, 2022 (“TYHA Hearing”), the trial court heard
testimony from the victim’s Mother and CYS caseworker, Ms. Jones, which the
Commonwealth summarizes as follows:
[Mother] testified first at the hearing…. [She] explained that
[Child] was an 11-year-old with expressive language disorder,
which affected [her] ability to learn and express herself.
According to [Mother], [Child] became “stressed out” and
experienced “anxiety” when [she] knew she had to come to the
courthouse and exhibited other physical mannerisms that
indicated to [Mother] that [Child] was experiencing stress. While
leaving the courthouse after meeting with attorneys for the
Commonwealth and a [CYS] worker, [Child] was crying in the
elevator. When asked about the likely effect on [Child] of
testifying, [Mother] thought [Child] would have an “anxiety
attack” and a “meltdown.” [Mother] did not think that [Child]
would be able to communicate with a jury. When questioned by
the court about whether [Child] could come into the courtroom
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and function, [Mother] testified: “I really don’t think she’ll be able
to come in here in front of everybody and sit here and answer
questions.”
[CYS] caseworker[,] Megan Jones[,] testified next at the
hearing…. [Ms.] Jones was familiar with [Child] and spoke to [her]
at the family home on May 5, 2021[,] … for approximately 15
minutes…. [Ms.] Jones also spoke to [Child] a few weeks after
the May 5, 2021 meeting. [Ms.] Jones further explained that
[Child] was “not forthcoming with information at all” during a
recent meeting with [Child] and a prosecutor in the courthouse in
preparation for trial. [Ms.] Jones thought that [Child’s] testifying
would be “traumatic” and did not believe [Child] could
communicate with a jury and answer questions.
Commonwealth’s Brief at 6-7 (citations to record omitted).
The Honorable Dudley N. Anderson then conducted an in camera
evaluation of Child in the jury room, after which he stated from the bench:
[Child] represented, I believe, as difficult a situation as I have
ever seen. I think there was one verbal response, and it was
almost non -- it was very, very softly spoken, and it was the name
of her school. She did nod her head at a couple of things that I
said; but as soon as I turned to anything having to do with talking
about things, she stopped communicating. There was no
communication. Even when I asked her, “Do you want to leave?”
she wouldn’t communicate. I think she was probably dying to say,
yeah, get me out of here; but she wouldn’t communicate it to me.
Now, I don’t think that anybody that was in there has any doubt
that if we brought her in here Friday and put her on the stand that
anybody would get an answer out of her. And I believe, and I
don’t think it’s a stretch, that she is unavailable as a witness; and,
therefore, I believe that the statements qualify under 42 Pa.C.S.
[§] 5985.1[,] as admissible.
N.T. TYHA Hearing, 2/9/22, at 36-37. See also id. at 33 (Judge Anderson’s
describing Child as “practically catatonic” and explaining that she meets the
definition of “unavailable as a witness” under the TYHA). We conclude that
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the record contains sufficient evidence to support the trial court’s
determination, and we discern no abuse of discretion.
II. Sufficiency of the Evidence
In his second issue, Appellant challenges the sufficiency of the evidence
to sustain his EWOC conviction.11 Our standard of review is well-settled:
In reviewing the sufficiency of the evidence, we must determine
whether the evidence admitted at trial, and all reasonable
inferences drawn from that evidence, when viewed in the light
most favorable to the Commonwealth as verdict winner, was
sufficient to enable the fact finder to conclude that the
Commonwealth established all of the elements of the offense
beyond a reasonable doubt. The Commonwealth may sustain its
burden by means of wholly circumstantial evidence. Further, the
trier of fact is free to believe all, part, or none of the evidence.
Commonwealth v. Taylor, 137 A.3d 611, 614 (Pa. Super. 2016) (citation
omitted).
Section 4304 of the Crimes Code defines the crime of EWOC and
addresses the grading of this offense, in relevant part, as follows:
(a) Offense defined.—
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11 We deem any sufficiency claim regarding Appellant’s simple assault and
harassment convictions to be waived. See Pa.R.A.P. 2116(a) (“No question
will be considered unless it is stated in the statement of questions involved or
is fairly suggested thereby.”); Wirth v. Commonwealth, 95 A.3d 822, 858
(Pa. 2014) (“[Rule 2116(a)] is to be considered in the highest degree
mandatory, admitting of no exception; ordinarily no point will be considered
which is not set forth in the statement of questions involved or suggested
thereby.”).
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(1) A parent, guardian or other person supervising the
welfare of a child[12] under 18 years of age … commits
an offense if he knowingly endangers the welfare of
the child by violating a duty of care, protection or
support.
…
(b) Grading.—
(1) Except as provided under paragraph (2), the following
apply:
(i) An offense under this section constitutes a
misdemeanor of the first degree.
(ii) If the actor engaged in a course of conduct
of endangering the welfare of a child, the
offense constitutes a felony of the third
degree.
…
(2) The grading of an offense under this section shall be
increased one grade if, at the time of the commission
of the offense, the child was under six years of age.
18 Pa.C.S. § 4304(a)(1), (b). Section 4304 is to be given meaning by
reference to the common sense of the community and the broad protective
purposes for which it was enacted. Commonwealth v. Vela-Garrett, 251
A.3d 811, 815 (Pa. Super. 2021) (citation omitted).
Here, Appellant’s claim is limited to a challenge of the sufficiency of the
evidence to support the grading of his EWOC conviction as a third-degree
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12“[T]he term ‘person supervising the welfare of a child’ means a person other
than a parent or guardian that provides care, education, training or control of
a child.” 18 Pa.C.S. § 4304(a)(3).
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felony, pursuant to Section 4304(b)(1)(ii).13 The crux of his argument is that
the Commonwealth failed to meet its burden to establish that each alleged act
of violence occurred “on numerous occasions[.]” Appellant’s Brief at 10-11
(emphasis added). In support of his position, he states:
Count Two of the [c]riminal [i]nformation filed against Appellant
alleges that he “did on numerous occasions, strike [the] victim, …
pulled her hair, picked the victim up and slammed her to the
ground, held her hands behind her back while [Appellant] struck
her with a belt…[.]” In reviewing the actual phrasing of the
Commonwealth[, Appellant] was accused of committing all these
acts on multiple occasions. This required testimony that all of
these acts occurred more than once. That was not attested to by
any of the witnesses.
Id. at 11-12 (citations to record omitted). Appellant’s claim lacks merit.
The phrase “course of conduct” is used in the EWOC statute to
differentiate the penalties for single and multiple endangering acts.
Commonwealth v. Kelly, 102 A.3d 1025, 1031 (Pa. Super. 2014) (noting
that the use of the phrase “course of conduct” imposes a requirement of
multiple acts over time). In reviewing Appellant’s claim, the trial court
expressly concluded that “[t]he evidence presented at trial was sufficient to
demonstrate [Appellant’s] actions occurred on multiple occasions.” Trial Court
Opinion (“TCO I”), 5/2/22, at 2. In support of its determination, the trial court
noted, “Trooper … Arbogast testified to abuse occurring on multiple occasions
as reported by the victim.” Trial Court Opinion (“TCO II”), 7/1/22, at 2
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13 As Appellant does not contest the sufficiency of the evidence to establish
any of the elements of EWOC under Section 4303(a), we deem any such claim
to be waived. See Pa.R.A.P. 2116(a).
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(unnumbered). See also N.T. Trial at 74-75 (Trooper Arbogast’s referencing
his notes in which he documented Child’s report of abuse on approximately
ten occasions).
Moreover, Mother testified to witnessing Appellant’s choking Child “three
times” and described two of the incidents in detail. See id. at 26-29. See
also id. at 38 (Mother’s stating, “I stopped him every time”). She further
testified that Child would periodically be left home alone with Appellant on the
weekends when she was working as a wedding photographer and that Child
would tell her after Appellant went to sleep about “what happened.” See id.
at 31 (Mother’s explaining what Child told her: “That he smacked her and just
about smacking her in the face and that kind of stuff.”). When asked whether
she ever saw any physical evidence of Appellant smacking Child, Mother
replied: “I took pictures of the marks that were made on her face every time
I came home from like an event that I was doing.” Id. at 31-32.
Additionally, the Commonwealth entered into evidence four pictures of
Child’s face taken by Mother. See id. at 13; Commonwealth’s Exhibits 1-4.
The trial court found these pictures “especially compelling” in considering the
sufficiency of the evidence. TCO II at 2 (unnumbered). “The pictures
evidenced injury to the victim.” Id. Father acknowledged that Child was
wearing four different outfits in the four pictures. N.T. Trial at 15. We agree
with the Commonwealth that the jury could have reasonably concluded that
each of the pictures was taken on a different day after a separate incident.
See Commonwealth’s Brief at 10.
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The Commonwealth also entered into evidence Mother’s written
statement given to the police regarding Appellant’s abuse of Child. See N.T.
Trial at 39; Commonwealth’s Exhibit 6. Mother’s statement contained
references to numerous incidents which took place on separate occasions.
See N.T. Trial at 53-54 (Mother’s reading her statement on the stand, e.g.,
Child told Mother that Appellant smacked her “a couple times in 2020[;]”
Mother saw Appellant slam Child down on the floor “about a handful of
times[;]” Appellant choked Child “two times this year, one time last year[;]”
“Around the end of January, beginning of February this year, [Appellant]
smacked [Child] with an open fist[;]” Appellant smacked Child with a belt “two
times this year … [and] pulled her hair in front of me once this year”). Trooper
Naschke also testified regarding her interview with Child and recalled Child
describing multiple incidents of abuse. See id. at 63-64 (Trooper Naschke’s
recounting that Child indicated Appellant smacked her in the face and pulled
her hair “specifically whenever her mother would leave”); id. at 65 (Trooper
Naschke’s recalling Child’s claims that Appellant strangled her “approximately
ten times”). Finally, Ms. Jones testified that she asked Child whether Appellant
hit her on one occasion or more than one occasion and that Child replied,
“[Appellant] hits her a lot.” Id. at 81.
Based on the foregoing evidence, we would conclude that the record
contains sufficient evidence to support a finding that Appellant engaged in a
course of conduct that endangered the welfare of Child and, thus, we would
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discern no abuse of discretion in the Appellant’s third-degree felony EWOC
conviction.
III. Weight of the Evidence
In his third and final issue, Appellant challenges the weight of the
evidence to support his EWOC conviction.14 Appellant asserts that the only
evidence of the alleged abuse produced by the Commonwealth was the four
pictures “purport[ing] to show … [C]hild with a marked face.” Appellant’s Brief
at 13 (citing Commonwealth’s Exhibits 1-4). Referencing Count Two of the
criminal information, he argues that “[t]he dramatic nature of these claims
required dramatic proof.” Id. (citing Criminal Information at 1 (alleging that
Appellant “on numerous occasions, strike [sic] [Child], … pulled her hair,
picked [her] up and slammed her to the ground, held her hands behind her
back while [Appellant] struck her with a belt”)). However, he notes: “There
was nothing presented to verify … [C]hild being pulled by her hair, picked up,
slammed and/or struck with an object. The verdict was clearly against the
weight of the evidence and the shocking disparity between the accusations
and the presentation justify a reversal.” Id. at 14.
We review a weight of the evidence claim according to the following
standard:
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14 We deem any challenge to the weight of the evidence regarding Appellant’s
simple assault and harassment convictions to be waived due to his failure to
include such claims in his statement of questions involved. See Pa.R.A.P.
2116(a); Wirth, supra.
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A claim alleging the verdict was against the weight of the evidence
is addressed to the discretion of the trial court. Accordingly, an
appellate court reviews the exercise of the trial court’s discretion;
it does not answer for itself whether the verdict was against the
weight of the evidence. It is well settled that the jury is free to
believe all, part, or none of the evidence and to determine the
credibility of the witnesses, and a new trial based on a weight of
the evidence claim is only warranted where the jury’s verdict is so
contrary to the evidence that it shocks one’s sense of justice. In
determining whether this standard has been met, appellate review
is limited to whether the trial judge’s discretion was properly
exercised, and relief will only be granted where the facts and
inferences of record disclose a palpable abuse of discretion.
Commonwealth v. Tejada, 107 A.3d 788, 795-96 (Pa. Super. 2015)
(citation and brackets omitted).
Instantly, in response to Appellant’s weight claim, the trial court stated
that it found the pictures of Child “especially compelling” and that, “[c]ontrary
to [Appellant’s] argument, [it did] not find that the examples of physical
violence were minimal.” TCO I at 4. The court concluded that “the verdict in
this matter was not against the weight of the evidence.” Id. Additionally, the
Commonwealth presented testimony from multiple witnesses detailing
numerous accounts of Appellant’s physical abuse of Child. As the
Commonwealth so aptly states, “the pictures … gave the jury a visual depiction
of the consequences of the abuse but were by no means an exhaustive account
of …. Appellant’s abuse of [Child].” Commonwealth’s Brief at 13. The jury
was free to believe all, part, or none of the evidence and to determine the
credibility of each witness. See Commonwealth v. Jacoby, 170 A.3d 1065,
1080 (Pa. 2017) (“At trial, the jury [is] the ultimate fact-finder and the sole
arbiter of the credibility of each of the witnesses.”).
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Assessing all of the evidence according to the governing principles cited
above, we simply cannot conclude that the trial court abused its discretion
when it found that the jury’s verdict did not shock its sense of justice.
Consequently, Appellant’s weight challenge fails.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/07/2023
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