Com. v. Scholl, M.

J-S79027-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MELISSA ANN SCHOLL :
:
Appellant : No. 1886 MDA 2017
Appeal from the Judgment of Sentence November 20, 2017
In the Court of Common Pleas of Luzerne County Criminal Division at
No(s): CP-40-CR-0001775-2016
BEFORE: SHOGAN, J., OLSON, J., and MUSMANNO, J.
MEMORANDUM BY OLSON, J.: FILED FEBRUARY 28, 2019
Appellant, Melissa Ann Scholl, appeals from the judgment of sentence
entered on November 20, 2017. We affirm.
The trial court ably summarized the underlying facts and procedural
posture of this case:
[O]n December 9, 2015, [Appellant] and her two children
were found sitting in a parked car in a secluded location, with
a hose running from the car’s exhaust pipe into its passenger
compartment. Wilkes-Barre Township police were dispatched
to the scene, [Appellant] was taken into custody, and a
criminal information against [Appellant] was subsequently
filed, charging her with two counts of attempted criminal
homicide. . . .
A jury trial commenced on June 13, 2017. A mistrial was
declared during jury deliberation, however, after it became
clear to the [trial] court that the jury was unable to reach a
unanimous verdict. A second jury trial commenced on
September 12, 2017. Following deliberation, the jury found
[Appellant] guilty of both counts of attempted criminal
homicide.
J-S79027-18
A pre-sentence investigation (PSI) was ordered, and
sentencing was scheduled for November 20, 2017.
At [Appellant’s] sentencing hearing, the [trial] court heard
statements from [Appellant], persons who spoke on her
behalf, and counsel. Based on these statements, and the
[trial] court’s review of the PSI and a letter and a protection
from abuse petition submitted on [Appellant’s] behalf, the
[trial] court sentenced [Appellant] on Counts 1 and 2 to
consecutive terms of [60 to 180 months’ imprisonment,
followed by five years’ probation], for an aggregate sentence
of [ten to 30 years’ imprisonment, followed by ten years’
probation].
Trial Court Opinion, 7/18/18, at 1-2 (internal footnotes and some internal
capitalization omitted).
Appellant filed a timely notice of appeal and now raises ten issues to this
Court:
Is Appellant entitled to a new trial or in the alternative,
dismissal of charges when, applying the applicable
Pennsylvania law, the trial court abused its discretion and/or
misapplied the law by:
a. Permitting into evidence, video interviews of minor
Julian Scholl without proper notice that the
Commonwealth intended to proceed under Rule 5985.1;
b. Permitting into evidence, a screenshot of alleged
smartphone text messages obtained through a third party
to be admitted and said text messages were not properly
authenticated;
c. Permitting into evidence, text messages from
Appellant’s phone obtained through an illegal search and
seizure and which were not properly authenticate[d];
d. Permitting the jury to take copies of all the alleged text
messages into the jury deliberating room which infer a
confession by Appellant;
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J-S79027-18
e. Denying the jury copies of the elements of the crime
after they requested the elements on two separate
occasions and after the judge add[ed] inflammatory and
incriminating words about Appellant’s acts;
f. Failing to give jury instructions and definitions of “intent
to kill” and “transferred intent” and their applicability in
attempt criminal cases;
g. Denying Appellant’s oral motion for dismissal of
criminal charges for the alleged perjury by Detective
Parker at Appellant’s preliminary hearing, when relevant
supporting evidence was discovered and Appellant
requested her counsel to present it to the court;
h. Denying Appellant’s[] November 14, 2016[] motion for
dismissal of charges for lost/destroyed/missing evidence;
i. Denying Appellant’s[] December 12, 2016[] motion for
dismissal of charges for lost/destroyed/missing evidence;
j. Denying Appellant’s[] April 21, 2017[] motion for
dismissal of charges for violating the speedy trial rule
600?
Appellant’s Brief at 12-13 (some internal capitalization omitted).
Appellant’s brief is 145 pages long and exceeds 33,000 words. This is
in flagrant violation of Pennsylvania Rule of Appellate Procedure 2135, which
mandates that “[a] principal brief shall not exceed 14,000 words.” Pa.R.A.P.
2135(a)(1) (emphasis added). Appellant has also violated our Rules of
Appellate Procedure, in that: Appellant’s brief does not contain “a certificate
of compliance with the word count limit,” as required by Rule 2135(a)(1) and
(d), and Appellant has failed to attach the relevant trial court opinions to her
brief, as required by Rule 2111(a)(10) and (b). We note that these errors and
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J-S79027-18
violations are particularly egregious here because Appellant is not acting pro
se – an attorney wrote and submitted this brief.
We have authority to dismiss Appellant’s brief, pursuant to Pennsylvania
Rule of Appellate Procedure 2101. This rule declares:
Briefs . . . shall conform in all material respects with the
requirements of the[ Rules of Appellate Procedure] as nearly
as the circumstances of the particular case will admit,
otherwise they may be suppressed, and, if the defects are in
the brief . . . of the appellant and are substantial, the appeal
or other matter may be quashed or dismissed.
Pa.R.A.P. 2101.
However, we will not dismiss Appellant’s brief on this occasion, as the
violations do not substantially impede our ability to conduct meaningful and
effective appellate review. See, e.g., Commonwealth v. Hardy, 918 A.2d
766, 771 (Pa. Super. 2007) (“when defects in a brief impede our ability to
conduct meaningful appellate review, we may dismiss the appeal entirely or
find certain issues to be waived”). Nevertheless, we caution Appellant’s
counsel against violating our appellate rules in such manner in the future. See
Commonwealth v. Spuck, 86 A.3d 870 (Pa. Super. 2014) (quashing the
appeal due to the appellant’s “flagrant failure to file a brief that conforms to
the Pennsylvania Rules of Appellate procedure”); Commonwealth v.
Stoppie, 486 A.2d 994 (Pa. Super. 1984) (same); see also Commonwealth
v. Briggs, 12 A.3d 291, 343 (Pa. 2011) (the Pennsylvania Supreme Court
declared: “[t]he briefing requirements scrupulously delineated in our
appellate rules are not mere trifling matters of stylistic preference; rather,
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J-S79027-18
they represent a studied determination by our Court and its rules committee
of the most efficacious manner by which appellate review may be conducted
so that a litigant's right to judicial review as guaranteed by Article V, Section
9 of our Commonwealth's Constitution may be properly exercised. Thus, we
reiterate that compliance with these rules by appellate advocates who have
any business before our Court is mandatory”).
We have reviewed the briefs of the parties, the relevant law, the
certified record, the notes of testimony, and the opinion of the able trial court
judge, the Honorable David W. Lupas. We conclude that Appellant is not
entitled to relief in this case and that Judge Lupas’ July 18, 2018 opinion
meticulously and accurately disposes of Appellant’s issues on appeal.
Therefore, we affirm on the basis of Judge Lupas’ thorough opinion and adopt
it as our own. In any future filing with this or any other court addressing this
ruling, the filing party shall attach a copy of Judge Lupas’ July 18, 2018
opinion.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 02/28/2019
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J-S79027-18
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Circulated 02/08/2019 02:36 PM
1 lTH J,. UDIClAL .DISTRICT
� .. OF
. PENNSYLVANIA
.C'OMMONWEALTH OF PENNSYLVANIA : IN THE-COURT OF COMMON
:: PLEAS
: .OF LUZERNE COUNTY
V.
MELISSA ANN SGHOLL 'CRIMINAL .DIVIS.ION
Defendant/ Appellant
· NO. 1775of.2016
/..
OPINION
I. FAC.T.S AND PROCEDURAL HISTORY
This.matter presently comes before the· Court pursuant to the Defendant, Melissa
Scholl's Appeal bf her conviction and judgment of sentence for attempted criminal
homicide.
The record reflects.that on December 9, 2015, the Defendant and her two children
were found sitting in a parked car in a secluded location, with a hose running from the
��r's exhau.st pipe into. its passenger compartment. Wilkes-Barre Township police were
dispatched to the scene, the Defendant was taken into. custody, and. ·a crtminalintormation
aqainstthe Defendant was subsequentlyfiled. charging herwith 1W.9 counts of attempted
ctirnihal homicide, 18. Pa.C;S.A. § 901 (a); 18 Pa . .C.S.A..§ 2501 (a).
A jury trial commenced on June. 1.3, 2017. A mistrial was. declared during ji,lry
deliberation, however, after itbecame.clear tothe.Court that the jury was unable.to reach
·a unanimousverdict. A second jury trial commenced on -se·ptember. 12� 201'7. Followinq
.... "---·-----·--------------------,-----------'----
-------··- ----------------------------------,----
delberation, the 'jury ·found the Defendant guilty of both counts· of attempted criminal
homicide.1 A Pre-Sentence tnvestlqation (PSI) was ordered, and sentencing was
scheduled for November 20, 2017.
At the Defendant's sentencing hearinq, the Court heard statements from the
Defendant, persons who spoke on her behalf, and counsel. Based on these statements,
and the Court's. review of the PSI and a lette.r and a protection from abuse petition
submitted on the Defendant's behalf, the Court sentenced the Defendant on Counts t
and 2 to consecutive terms of lrnprisonment of sixty (60) to one hundred eighty (180)
months imprisonment, to be served .in . a state correctional institution, followed by
consecutive periods of five (5) years probation, for an aggregate sentence of ten (10) to
thirty (�O) .years imprisonment followed by a consecutive period of ten (10) years
probation .. N. T. 11 /20/17 at 4-.27,. 28, 30-31. The Defendant filed the instant timely appeal
of her judgment of sentence on December 5, 2017, and, simultaneous.with this appeal,
filed c1 Concise statement of Errors Complained of on Appeal pursuant to Pennsylvania
Rule of Appellate Procedure 1925(b).
II. LAW AND DISCUSSION
The Defen.danrs oonctse Statement of Error� raises eleven (11) allegations of
error.' In. the pursuit of brevity and clarity, we summarize and address the Defendant's
issues as we understand them.
1·Although the Defendant's second jury trial took place. over several days, the trial
transcript consists of a single volume, thus all citations to the jury trialtrarrscript contained
herein will be dated 9/12/17. .
2 The allegations ot-error are contained in paragraphs numbered 2through 12 of the Rule
1925(b) Statement
2
'"'".
A. FIRST ALLEGTION OF ERROR.
The Defendantflrstalleqesthatme trial court erred by"petn:iitting video interviews
of [the Defendant's son] without proper Notice that the Commonwealth intended to
proceed under 42 Pa; C;S,A. § 5985.1." Pa.RAP. 1925(b) Staternent.at 1: Pertinent to
this allegationr Section 5985.1 (b) requires that art adverse party must be notified "of the
proponent's intention to offer the statement and the particulars of the statement
sufficlently in advance of th.e proceeding at which the proponent intends to offer the
statementInto evidence to provide the adverse party with a fair opportunity to prepare to
meetthe statement." 42 Pa. C.$.A. § 5985 .. 1(b).
Here; theCommonwealth filed notice of its intention to proceed pursuant to 42 Pa.
C.$.A. § 5985.1, commonly known as the tender years exception to the. hearsay rule; on
June 8, 2017. Notice was served on the Defendant, and a hearing was. held on June 12,
201.7 ...At the conclusion of the. hearing, the Court ruled the· evidence admissible under
the tender years exception. N.T. 6/12/17 at 7�8. ihe Defehdant's Rule 1925(b)
Statement concedes that notice pursuant to Section 5985.1 was property given prior to
the Defendant's first trial, but it insists that the Court erred in permitting the evidence in
question to. be introduced during the Defendant's re-trlal because the Oornrnonweelth did
not file esecond notice. Rule 1925(b) Statement at 1.
Defendant's argument is waived because at trial, Defense counsel specifically
indicated to the Court that the Defendant did not have an objection to the notice provided
3
by· Commonwealth pursuant to Section 5985.1} Pursuant to Pennsylvania Rule of
Evidence 103, it is clear that error may not be predicated upon a ruling that admits
evidence unless "a timely objection, motion to strike or motion inlimine appears of record,
stating the specificqround of objection, if the specific ground was not apparentfrom the
context." P�.RE. 103(a)(1 ). Further; pursuant to Pennsylvania
. Rule of Appellate
.
Procedure 3.02, "[ilssues. not raised in the. lower court are waived and. cannot be raised
for the first time on appeal." Pa.R.A:P. 302(a). See also .Commonwealth v. Melendez-
Rodiiquez, 856 A..2d 1278, 1287-1289 (Pa. Super. 2004) (en bt:mc) (Generally, an
appellant who fails. to make a specific timely objection waives the.issue.), Hera.because
Defense counsel .speeifically indicated prior to· the Defendant's second trial that he did not
object.to the notice provided by the Commonwealth under Section .5985 .1, this issue has
beenwaived for purposes.of appeal.
Even if the Honorable SuperiorCourt should find this issue preserved, it is without
merit. The plain language of 5885.1 (b) does not require a subsequent notice as
3A review otthe certified record reveals that lrnrnedlatelv prior to voiralre on Septerilper
12; 2017, the following exchange occurred between couneelandtheCourt: · ·
.Ms .. Sperazza: Your Honor; just a brief housekeeping note. As per the
previous trial, I believe there's a stipulation to the authenticity of the GAC
DVDs; and the Court has.already made .a ruling on the tender years motion.
It's my understanding there's been no new challenge to the tender years
motion or the CAC DVDs.
Mr. Kansky: Under the law, is that enough notice?
Ms. Sperazza: It was granted notice before the Court gave defense
counsel until the 30th to file any objection to it, and I have yet to receive any
o bi1ecfion..,;
The Court: Okay .
. Mr .. Kansky: No objection.
N.T. 9/12/17 at 16-17.
4
--.
Defendant contends. In Commonwealth v. James, 506 Pa. 526, 486 A.2d 376 (1980),
the Pennsylvania Supreme Court reasoned that because a mistrial did not bar re-
presecution, the "status of the case is as though a trial had neveroccurred and places
the matter in a· pre-trial context." James, 506 Pa. at 53t 486 A.2d at 379.4 The
Pennsylvania Supreme Court has since consistently held that a trial court's rulings
rel�ting to legc1l questions determinative of the "law of the easel' are riot subject to
relitiqation and should .not be reopened. Commonwealth v. Mulholland, 549 Pa. 634, 652;
702 A.2d 1027, 1036 ( 1997} (citing Commonwealth v. Starr; 541 Pa .. 564, 664 A.2d 1326{1995). As such, even if preserved, the Defendant cannot show that.this Court erred in
admitting the. evidence in question, and she is notentitled to appellate relief on th is issue.
4lri $0 concluding, the Supreme Court cited numerous examples of persuasive authority
on this issue. James, 506 Pa. at l531; fn, 4, 486 A.3<;1 at 379, fnA (citing Harnage v. .State,
290 Ala. 142, .274 So.2d 352 (1972); State v. Neil, 102 Ariz. 110, 425 P .2d 842 (1967);
Tipps v. Mullis, 257 Ark; 622, 519 S.W.2d 67 (1975); People v. Richatd, 85 CaLApp.3d
292 (1978); Ji1 re: Alpine, 203 Cal. 731, .265 P. 947 (1928); Estate of Bartholomae, 261
Cal.App.id 839. 68 Cal.Rptr. 332 (1968); People v. Jamerson, 196 Colo. 63, 580 P.2d
805 (1978); Jamison v. US., 373 A:2d 594 (D.C.App.) (1977); Hess v. State. 146 Ga:
App. 874, 247 S.E.2d 546 (1978); .Baird v. Chicago; 61 Iowa 359, 16 N.W. 207 {1883);
Statev. Talmage. 104 Idaho 249, 658 P.2d 920.(1983); Papageorqioil v. G.W: Woolworth
Co., 66 111.App.3d 873, 23111. Dec: 319, 383 N.E.2d 1346. (1978); Hendrix v. Garret, 203
l438 A.2d 4,54 (Me.1981); Powers v.
State. 285 Md. 269, 401 A.2d 1031 (1979); People v. Hamm, 100 Mich.App. 429, 298
N.W.2d 896 (1980); Storey Ii. Weinberg, 226 Minn; 48, 31 N,W.2d 912(1948); Ad-Art v.
Denison. 94 Nev. 73, 574 P.2d 1016 (1978); Statev. Hale, 127 N.J, SuperiorCt 407, .317
A.2d 731 (1974); Templin v. Mountain Bell Telephone Co�. 97 N.M. 699, 643 p . .zo
263.
(App.19.82); People v. Cipolla. 7 A.D.2d 698, 179 N.Y.S.2d 459 (1958);.State v: Cutshall.
278 N.C. 334, 180 S.E.2d 745 (1971); State v. Youngr :212 N.V\/. 857, 55 N.D. 194 (1927);
Pickle v� Bliss, 418 P.2d 69 (Oklahoma) (1966); State v. Mills, 281 S.C. 60, 314 S.E.2d
324 (1.984); Coronado Oil Company v. Grieves. 642 P.2d 423 (Wyo.1982)). ·
5
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8. SECOND ALLEGATION OF ERROR
The Defendant secondly alleges that this Court erred in permittin� "a screenshot
of alleged srnartphone text messages obtained through a third party to be aomltted."
Pa.RA.P, t925(b) Statement at 2. In addressing this claim, we initially note that the Rule
1925(b) Statement-does not specifically identify the "screenshot" in question by reference
to its exhibit number or by citation to the location in the certified record where it was
admitted. Further, the Rule 1925(b) Statement does not cite to the location in the certified
record where the Defendantobjected to the admission .of this screenshot. We>are thus
left to determine for.ourselves which piecesof evidence the Defendant is referencing, and
when the objection to this evidence was made.
To do so, we have. examined the five.hundred thirty-nine ( 539) pa_ge trial transcript,
in conjunction With the Rule. 1925(b) Statement's indication that "Defendant's mother
[Angela Stanton] was shown a series of text messages that was to represent the text
messages on her phone;" and its indication that Mrs. Stanton made statements with
regard to these messages •. Id. As with ltsuncited reference tome "screenshot," the Rule
1925(b) Statement does not provide citation to the record where the "series of text
rnessaqes" were shown to the witneee or where the wltneas testified to the messages.
Id. We believe. however, that this allegation of error must pertain to Commonwealth
Exhibits #44 and #45, as our review of the record shows thatthose are the only exhibits
thatcan be viewed as pertaining to the Defendant's references to"a screenshot of alleged
smartphone text messages obtained through a third party," and "text messages on
[Angela Stanton's} phone." N.T. 9/12117 at 251-252. As such, we. construe the
6
Defendant's allegation of error to be that thi$ Court erred in admitting Commonwealth
Exhibits#44·and #45 into evidence.
In purported support of the allegation that the Court erred in admitting· this
evidence, the 1925(b) Statement nonsensically asserts that "Pennsylvania Rules of
Evidence provides [sic] that evidence must introduce sufficient evidence that the matter
is what it purports to be. Rule 1925(b) Statement at 2 (citing '' In the Interest of PP.. a
Minor, supr« and Commonwealth v. Cruttendon, .976 A.2d 1116, 1181 (Pa. Super2009)").
/d;5 The Rule 1925(b) further states: "[i]n .Commohwealth v: Koch, No, 1669 MDA, 201 t
Pa. Super. Lexis 2716 (Sept. 16, 2011), the unauthenticated texts were inadrnlssible as
they were merely hearsay evidence." Id. Although the statement does not relate the
finding in Koch to the matter at hand. its citation to Koch suggests that the Defendant
wishes to assert to the $uperior Court that this Court erred inadmittinq Commonwealth
Exhibits #44 and.#45 without proper authentication.
With regard to Exhibit #44, this allegation of error is without merit. A review of the
trial transcript reveals that the Commonwealth sought to admit Exhibits #44 and #45
(which the Commonwealth indicated were depictions of the· text messages between the
5 Although the Rule 1925(b) Statement references the "Pennsylvania Rule.s of Evidence,"
it does not cite to a particular Rule, of Evidence. Rule. 1925(b) Statement at 2.
Additionally, although the statement provides the case name "In the Interest of F;P;, a
Minor,"· it does not provide a case citation, and no such citation appears anywhere in the
Rule 1925(b) St�tement. Finally, with regard to the Defendant's citation to Cruttendorl,
Which involves violations ·of the Pennsylvania Wiretapping and Electronic Surveillance
Ad, 18 Pa.C.S.A. § 5701, et seq; our review of the specific page cited by the Defendant
reveals that it contains no reference to any Rule of Evidence, or in anyway supports the
Defendant's assertion that the Rules of Evidence provide that "evidence must introduce
sufficient evidence thatthematter is what it purports to.be." · · ·
7
parties in "thread" form, the way they would appear on a smart phone}, .but Defense
counsel objected based on Jack of foundation, and the objection was sustained, thus
Exhibits #44.and #45 were not admitted at that time. N.T. 9{12/17 at 251-253. The gist
of the contents of these exhibits was later testified to by Angela Stanton herself, however.
who identified a text thread containing the text messages she and the Defendant sent to
each. other prior to the incldent leading to the Defendant's. arrest. N.T. 9/12/17 at 462-
464. Defense Counsel eventually objected to this line of questioning (after the witness
had already identified a series of the texts between herself and the Defendant), but the
Commonwealth pointed out that the witness had acknowledged that the messaqes were.
hers and the objection was overruled. Id. at 462464'.
As the record clearly reflects that Exhibit#44 was not admitted into evidence, this
Court cannot be found to have erred as the Defendant alleges.. Commonwealth v. Roles;
116 A.3d 122, 130 (Pa. Super. 2015). With rega.rd to Exhibif#.45, the Commonwealth
later sought to introduce itInto evidence after both parties had rested, to which Defense
counsel indicated that he had "no objection." Id. at 470. Because the. Defendant did not
object to the admission of Exhibit #45, there is no basis for the.Defendant to asserUhat
this Court. erred in admitting it. Commonwealth v. Bomar, 6�9 Pa. 136, 182, 104 A.3d
1179, 1207 (2014); Commonwealth v. Robinson, 543 Pa. 190; 201, 670 A.2d 616; 621
(1995); Pa.RAP .. 302(a) ('ilssuesnot raised in the lower court are waived and cannotbe
raised for the firsttime on appeal:'}:6
6If we are incorrect in our assumption that the Defendantfs asserting error with regard to
Exhibits #44 and #45, and .she is instead asserting that this Court erred irr admitting
Exhibits #32, #33, #36, #37, #38, #39, #40, #41 and/or #42 (which are photoqraphic
8
·�------------------------------------··-·--·-·--···-·-··-·
C. THIRD ALLEGATION OF ERROR.
The Defendant's third allegation of error asserts that th is Court erred. in "permitting
text messages from Defendant's phone obtained through an illegal search and seizure,"
and argues that although the Defendant's· phone was seized pursuant to a Detemoer
2015 search warrant; an additional search warrant was necessary prior to a manual
examination of the phone.performed by Officer Daniel Lewis ln June 2017. Rule 1925(b)
Statement at 273, The Rule 1925(b} Statement indicates that the Defendant made ail
"oral motion in limine.; .objecting to "the said evidence prior to the evidence being offered
attrial," and suggests that "in the interest of justice, this Court" should have considered
this said oral motionin limine." Id. at.3.
In addressing this allegation of error, we initially note that the Defendant's Rule
1925(b) Statement does not specifica(ly identify the' text messages in question by
reference to their exhibit number or by citation to. the location in the certified record where
they were
. admitted. Further,
. the Rule 1925(b) Statement asserts that. the Defendant
.
"objected to the said evidence" via an "oral motion in timine" but it does not· provide
citatlonto the location in the certified record wherethls motion was made. We are thus.
images 9.bt�ined during the manual examination of the Defendant's own flip-style cell
phone: See. N.i. 9/12/17 at 244-250), such an allegation has been waived for purposes
of appeal by Defense Counsel's failure to. object at trial. . A review of the record dearly
reveals. that Defense Counsel specifically indicated that he had "no objection" to the
admission ofExhibits #32, #36, #37, #38; #39, #40, #41.and #42 .. N.T. 9/12/17 at242,
244;, 247-249. With regard to Exhibit #33, Defense counsel did not object pr otherwise
respond to the Commonwealth's request for admission. Id..at 245. As such, the
Defendant has waived errors in admission of these exhibits by failing to object to their
admission during trial. Bomar, supra; Robinson, supra; Pa.R.A.P. 302(a). ·
. 9 .
again left · to determine for · ourselves which pie.ces of evidence the Defendant is
refer�ncing, arid when an objection.to this evidence was made.
Front our review of the trial transcript, we believe this allegation of error pertains
to Exhibits #32, #33; #36, #37,.: #.38, #39,·#40, #41 and/or #42, as these exhibits consist
.of photographic images of the text rnessages obtained from the manual examination of
the Defendant's phone. N.T. 9/12/17 a.t243�247. Additionally, the record shows that on
the third day of the Defendant's second Jury trial Defense counsel "objecljed] to the
admission of any text messages extracted and photographed by [Officer] Dan Lewis in
June of [2017l'' Id. at 233.7 We thus construe the Defendant's third allegation of error to
be that this Court erred in denying her mid-trial request to suppress .Cornmonwealth's
Exhibits #32, #33; #36, #37, #.38, #39, #40, #41 and #42. A review ofthe record and
pertinent case law suggest that this allegation of error is Without merit, and that the
Defendant is· not entitled to appellate relief on th is ground.
7 In response to the Defendant's objection, the Cornrnonwealth pointed out tothe Court
that D.efense counsel had been aware of the manual examination of the Defendant's
phone for months, thus the Defendant's objection was essentially an untimely motion to
suppress. N.T -. 9/1.2/17 at 2;33. The. Commonwealth further asserted that even if the
suppression request was timely, the Defendant was not entitled to suppression of the text
messages because the phone. was obtained pursuant to a valid search warrant and had
been in the Commonwealth's possession since that time, obviating the need for an
additional search warrant. Id. at 233-234. Lastly, the Commonwealth opined that even if
there had been a violation; the remedy would not be suppression of the evidence. Id. at
234.
In response, Oefense counsel acknowledged that as far back as December 2015.,
a discovery report indicated that a ma nual examination of the phonewould be. necessary;
and Defense counsel further acknowledgeo that the Defendant had been provided with
the resulting text messages in June of2017. Id: Defense counsel did. not dispute that his
objection should be considered a suppression request; nor did counsel provide any
explanation for the delay in making that request Id. As such, fhls Court denied the
Defendant's untimely request to suppress the text messages. ta. at 235.
· · ro ·
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"""·
As the Commonwealth suggests, the Defendant's objection to the evidence was.
properly considered a motion to suppress. See Commonwealth v. Marconi, 996 A.2d
1070, 1071 (Pa. Super; 2010), aff'd, 619 Pa.401, 64A.3d 103.6 (2013).8 Fµrther, as the
Commonwealth pointed out, the motion was not timely made. "Under Pennsylvarua Rule
of Criminal Procedure 5781 unless otherwise required in the interests ofjustice, all.pretriai
requests, including a request for suppression of evidence, must be included in one.
omnibus pretriatmotion." Commonwealth v. Borovichka, 18 A.3d 1242, 1.248 (Pa. Super.
2011) (citing Pq.R.Crim.P.; 578, Comment). Such omnibus pre-trial motions must be filed
within thirty (30) days of arraignment. Pa. R. Crim. P. 579(A). Here, the Defendant did not
file a timely omnibus pre-trial motion requesting the suppression of the exhibits i.i1 question.
on the grounds currently asserted. Further, although the Rules of Criminal Procedure
provide four exceptions to the Omnibus Pretrial Motion filing deadline, as discussed
below, the Defendant has not. argued,. rnuchIess proven, that any of those exceptions.
apply to her.
Pursuant to Rule 579, a motion must be "filed and served within 30 days after
arraignment, unless opportunity therefor did not exist, or the defendant or defense.
attorney, or the attorney for the Commonwealth, was not aware of the grounds for the
motion, or unless the time for filing has been extended by the court for causeshown."
Pa.R'Cnm.P. 579(A). Rule 581 provides an exception to the thirty (30) day period "where
8 Although the Defendant's Rµle 1925(b) Statement now characterizes her objection as
.an "oral motion in limtne" ft was not so characterized atthe time it was made, and, as
noted above, Defense counsel .did not dispute the Commonwealth's position at trial that.
the objection constituted.a suppression request. N�T. 9/12/17 at233.
11
.........
the interests of justice otherwise require/ Pa.R..Crim.P. 581 (B). Whether the opportunity
did not previously "exist" or the "interests otjustice" otherwise. require is a matter for the
discretion of the trial judge. Commonwealth v. Sodomskv, 137 A.3d 620, 626 (Pa. Super.
2016), appeal denied 638 Pa, 753, 158 A.3d 1236 (2016}, cert. denied, 137 S.Ct. 1205,.
197 LEci.2d 247 (2017); Marconi, 996 A.2d at 1072;
With regard to the applicability of the firstand second exceptions (pertaining to the
opportunity to make the motion and the awareness of the defendant/defense counsel of
the grounds for the motion), by Defense counsel's own admission he was aware of the
date of the issuance of the search warrant and the date.of the manual examination of the
Defendant's phone at least as early as June 2017, if not earlier. f\LT. 9/13/17 at 233-234.
As such. the Defendantcould have challenged the evidence obtained through the manual
examination of the phone on these grounds weli before: September 14, 2017, when the
jury had been empaneled and the Defendant's trial had reached its third day. As the
Superior Court has stated in slrnilar situations, "[tlhis is not a ·case Where there was no
opportunity to learn the facts which might possibly have formed the basis of a suppression
request Instead, it is a simple case of counsel's failure to act, forwhatever reason."
·commonwealth v. Duhaan, 3.90 A.2d .$2Q, 823'. (Pa. Super. 1978) (finding nothing to
indicate that defendant.lacked the opportunity to learn facts necessary to file. a timely pre-
trial suppression motion, and concluding that simple failure to apprise oneself of such
facts does. not entitle one. to relief from the time requirements of the Rules of Criminal
Procedure). As such, the first and. second exceptions do not apply here to excuse
Defendant's failure to comply with the applicable time requirements. See Borovichka, 18
A.3d .at 1248 (A suppression claim raised for the first time in a motion in. limine;
12
unaccompanied by an explanation for its untimeliness, does not fall under any of Rule
579{A)'s. filing exceptions and should be deemed waived).
With regard to the third exception, pertaining to a court-ordered extension of time
for cause shown, this exception is inapplicable here because no request was made to
extend the time for filing.
With regard to the fourth exception, pertaining to the interests oflustice, Defense
counsel wholly failed to articulate, and this Court did not find, any circumstance with
regard to this allegation that. would render it ir, ·the interest of justice to excuse the
Defendant's failure to make the suppression request prior to the third day of her second
jury trial.
Because the Defendant failed to file-a timely motion to suppress the .evidence in
quesfion, and because she has not shown that any of the exceptions to the-applicable
time requirements apply, she has waived the issue of suppression and it was well within
this Court's discretion to refuse her relieton this issue. Pa.R'Crim.P. 581 (B) ("[i]f timely
motion is not made hereunder, the issue of suppression of such evidence shall be.
deemed to be waived."). See also Commonwealth ·v. Bauiiihammers, 960 A:2d 59, 76--·
7.7 (P�. 20Q8) (Indicating that the Court has consistently affirmed the principle that a
defendant waives the ground of suppressibillty as a basis for opposition to the
Commonwealth's introduction of evidence when he or she faiis to file a suppression
motion pursuant to our rules of criminal procedure.") ..
Even if the Defendant had made a timely suppression request, however; there is
no merit to her assertion that a second warrant was necessary . prior to the manual
examination other phone. As.the record clearly reflects, and as the.Defendant does not
13
·-·--"-·········-·--------·--·----------------- ..-------·--
---- ·--------·--------------------------·--·---·--
·
dispute, hercell phone was seized pursuant to a validly issued search warrant. Following
the execution of that warrant, Officer Daniel Lewis of the Plains Township Police
Department was tasked with .examininq the phone. N-.T. 9/1.2/17 at 237. Officer Lewis
testified that ln the case of a flip phone like the Defendant's, a forensic extraction is initially
conducted; and, if that process does riot yield the information sought, a manual
examination is then conducted. Id at 240. ln this ease, the forensic extraction was
conducted in December2015, resulting in the recommendation that a manual extraction
would be necessary. /di at 260, 271. The mariuai examlnatlon was eventually conducted
in June 2017. Id. at 260. It is uncontested that the Defendant's cell phone was in the
Oommonwealth'scustody at all. times from the time lt was seized pursuant to the valid
search warrant to the time it was. manually examined, Further. Officer Lewis confirmed
that the text messages discovered· as the result of the manual. examination in June 2017
were the same as those that would.have been discovered had the examination occurred
in December 2015 .. /d. at 272�273,
Under these circumstances, it was not necessary for the Commonwealth to secure.
a second search warrant priorto conducting the manual examination of the phone. See
Commonwealth v. McEnany, 667 A.2ci 114$., 1149 (Pa, Super. 1995) (citing
Commonwealth v. Copenhefet, 526 Pa. 555, 587 A.2d 1353, 1356 (1991) abrogated on
other grounds by Commonwealth v. Rizzuto, 566 Pa. 40, 777 A.2d 1069 (2001 ). 9 Thus,
9
In McEnany, supra, the Superior Court found that ho additional warrant was necessary
to search the memory chip of a validly seized cellular telephone. In Copenhefer; supre,
the Pennsylvania Supreme Court held that a warrant authorizing the seizure of a personal
computer authorizes .reproduction. of the documents stored withiri without the necessity
of a second warrant.
14
-------------------------------------·····················-··-·,· · ·········-····.
even if raised in a timely suppression motion. the Defendant would 'not be entitled to relief
on a claim that the 'lack of a second warrant required· suppression of the evidence in
.quesfion.
D. FOURTH ALLEGATION OF ERROR
The Defendant's fourth allegation oferror asserts that this Court erred in admitting
"text messaqes with no time stamp." Rule 1925(b) statement at 3. As With the prior
allegations of error, this allegation does not specifically identify which text messages it
pertains to by use of their exhibit number or by citation to the· location in the certified
record where:they were admitted, We are thus left to assume the.Defendantchatlenges
all of the text messages involved here. Of greater significance than the failure to
specifically identify the text messages, however, is the.Rule 1925(b) Statements failure
·to cite to the. location in the. record where the Defendant objected to the admission ofthe
text messages on the ground that they lacked a timestamp. Our independent review of
the record confirms that no such objection was made, and the Defendant has thus waived
this allegation of errerfor purposes of appeal, Bomar, supra; Robinson, supra: PaR.A.P:
302 (a).10·
Even Jf this allegation had been preserved for review, lt is without merit. Tlie
Oefendant suggests that the text rnessaqes were introduced. without confirmation ·of the
time frame in which they were sent, or "even who sent the text messages." Rule 1925(b ).
Hi Additionally as we noted above, the record clearly shows that Defense Counsel
specifically indicated that he had "no objection" to the admission. .of Exhibits #32, #36,
#37, #38, #39, #40, #41, #42, and #45, and that he did not objector otherwise respond
tothe Commonwealth's request toadmit Exhibit #33. N.T. 9/12/17 at 242, 244, 247�249,
470.
15
..........':,
Statement at 3 (citing Commonwealth v. Koch, 1669 MDA 2010 (Pa Super. 2011);
Commonwealth v. Sherlock, .2069 MDA 2013 (Pa. Super 2014).11 Contrary to this claim,
however, the record confirms that the Commonwealth introduced detailed and specific
testimony from Officer Daniel Lewisthat the text messages in question were sent between
the Defendant's phone and .a contact labeled "mom" on the. night of December 9, 2015.
N.T. 9/12/17 at 237, 243-:250. Further, Angela Stanton, the Defendant's rnother,
. .
specifically identified the text messages as being those exchanged between herself and
the Defendant durinq the time period in question. Id: at 449, 462':464 .. As. such,.even if
preserved, this allegation of error is without merit and entitles the Defendant to norelief.
E. FIFTH ALLEGATION OF ERROR
The Defendant next asserts that this Court erred in aUoWing the Jury to take copies
of "the alleqedtexts" into the 1'jury deliberating room." Rule 1925(b) Statement at 3. As
with its prior allegations of error, the Rule 1925(b) Statement fails to cite to specific exhibit
numbers and falls to cite to the location in the certified record where the Court permitted
the jury to take such written material into the. deliberation room. We note; however, that
the statement cites Pennsylvania Rule of Criminal Procedure 646(C)(2) to support the
allegation that jurors are. strictly prohtbited from "posaeeetnq any written or otherwise
·11Because Koch and Sherlock are unpublished memoranda of the Superior Court. it is
improper for the Defendant to .elte to or rely· upon them. See I. O. P. Ru ie 65.37(A) of the
Superior Court of Pennsylvania ("An unpublished memorandum decision shall not be
relied upon or cited by a Court or a party in any other action or proceeding, exceptthat
such ..a memorandum decision may be relied upon or cited (1) when it is relevant under
the doctrine. of law. of the case; res judicata, or collateral estoppel, and (2) when the
memorandum is relevant to a criminal action or proceeding because it recites issues
raised and reasons for a decision affecting the same defendant in ·a prior action or
proceeding.").
16
recorded confession by the defendant.'; Id. Further. the statement complains that the
jurors were permitted to take copies of the texts indicating that the Defendant "wanted to
kHI herseif" and that she "couldn't do it alone anymore." Id. We thus b�lieve that this
allegation oferror pertains to Commonwealth Exhibits #32 and #33, as those are the
exhibits pertaining to the text messages "Going to kill myself" and •i1 can't do it alone no
more," sent from the Defendant's cell phone to the contact "morn." N.T. 9/13/17 at24q,
246. Therefore, we construe this allegation or error to be that this Court violated Rule
646(C)(2) when it permitted the jury to take CommonwealthExhibits #32 and .#33. into the
deliberation room.
As with each of its previous allegations, the Defendant's Ru.le 1925(b) Statement
falls to point to. the location in the record where the Defendant objected to the Court
allowing the jury to take these exhibits Jnto the deliberation room on the ground that doing
so would violate Rule 646. Our examination of the record confirms that the Defendant
did not.object to the jury taking these exhibits into the deliberation room on thlstor any
other) ground, she has waived this allegatibh of error for purposes of appeal. Bomar,
supra; .Robinson, siux»; Pa.R.A.P. 302(a).
Even if preserved, however, there is no merit to the allegation that allowing thejury
to have these exhlbits during deliberation violated Rule 646{C)(2). That Rule specifies
that during deliberations, thejury shall not be permitted to have 11a copy of �ny written or
otherwise recorded. confession by the defendant." Pa.R.Ciim.P. 646(C)(2V2 Here, by
12. Black's Law Dictioriary·ctefiries confession as follows:
Confession; n. A criminal suspect's oralor written acknowledqrnentof guilt,
often including
.. details about the crime .. Cf. admission;
. . . . . . statement.
�- .
17
···-·-· ···-·····---·-·······---·----------------------------------
·----·----·------·----------------------------
the Defendant's own admission, see Rule 1925(b) Statement at 3, the texts in question
are not "confessions," as they are not an acknowledgement of, or even pertaining to, the
Defendant's guilt with regard to the attempted murder of her children, the crimefor which
she was charged. Because :they are not confessions for purposes of Rule 646(C)(2), it
·was within this Court's discretion to allow them into the deliberation room. Pa:RCrim.P.
646 (A) ("Upon retiring, the jury may take with it such exhibits as the trial judge deems
proper, except as provided in paragraph (C)."); Commonwealth v. Parker, 104 A.3d 17;
27 (Pa. Super. 2014) (citing Commonwealth v. Barnett, 50 A.3d 176, 194 (Pa. Super,
2012), appealdenied, 619 Pa. 684, 6.3 A.3d 772 (2013) (''[C]ourts [in this Commonwealth]
have rareJy found that materials given to juries during deliberations constitute. reversible
error."), As such, the Defendant cannot show a Violation of Rule 646(C)(2),, and it was
not reversible. error for the Court to allow the jury to view Exhibits #32 and #33 while
deliberating.
F. SIXTH ALLEGATION OF ERROR
The Defendant's sixth allegation of error also raises a Rule 646 claim, asserting
that this Court erred in not allowing the jury to have copies of the elements.of the crime
"A confession is an acknowledgment in express words; by the.
accused in a criminal case, of.the truth of the main fact charged or of some
essential partof it." John H. Wigmore, Eviden.ce in Trials at Common Law
§ .821, at 308 (James H. Chadbourn ed., 4th rev. ed. 1970).
"The dlstlnctlon between admissions in criminal cases and
confessions by the accused is. the ·distinction in effect between admissions
of fact from which the guilt of the. accused may. be inferred by the jury and
the express admission.of guilt itself." William P. Richardson, The Law of
Evidence§ 394, �t268 (3d.ed. 1928).
Black's Law Dictionary (10th ed. 2014).
18
�-------------·------·-·--··-····-··-····--···· ·····
charged. Rule 1925(b) Statement at 4. Again! the Rule 1925 Statement does not
specifically identify the location in the certified record where this information was
requested by the jury, where the Court addressed the request! or where the Court's
determination was challenged by the Defendant .. Based on our own review of the record,
however, we· have confirmed that the jury requested copies of the· elements of the crime
after deliberating for approximately two hours. N.T, 9/12/17 at 529. In response, the
Court indicated to the parties that it intended to reread the instructions pertaining to the
elements ofthe crime and to provide some examples of the facts that were alleged by the
Commonwealth. Id. Defensecounseldidrrot object to this resolution of thejury's.request.
and thus the Defendant has waived her right to appellate relief on the claim, Bomar;
supra; Robinson; supra; Pa.R.A.P. 302(a),
Even if preserved, this. allegation wouid not entitle theDefendant to relief. As-the
Defendant herself acknowledges, see Rule 1925(b) Statement at 41 under Rule 646, the
trial judge may permit the jury to have for use during .deliberatlons written copies of the
portion of the judge's charge on the elements, of the offenses upon which the jury has
been instructed, Pa.RCrim.P. 646(8). Here, if was well with.in this Court's discretion to
decline to provide a copy ofthe charge on the elements, and to instead reread the charge
to the jury.13
1.3The R1.1le 1925(b) Statement .also indicates that uthe Court read the instructions and
added words such as "strapping the children in the backseat," "driving to a secluded lot,"
an.d "packing a.green garden hose." RUie 1925{b) Statement at 4 (no citation to transcript.
provided). A review of the transcript revea.ls that the Court did not include the above.
quoted words or phrases.in rereading the elements of the crime charged. The Court did,
however, use as examples of theacts all�ged by the Commonwealth ''puUing the children
in the car," i•driving to the Williams bus lot," and "putting a hose in the tailpipe of the
1.9
G. SEVENTH ALLEGATION OF ERROR
The Defendant's seventh allegation of error assertsthatthe Court erred in failing
to give "a Jury instruction and definition of 'Intent to Kill' .and failed to give jury instruction
and definition of transferred intent and 'its' applicability in attempt cases:" Rule t925(b)
Statement at 4. Yet again, the Rule 1925(b) Statement does not provide the location in
the certified record where the Defendant requested these specific jury instructions, or
objected to the jury instructions as given, and our own review of the record shows that no
such objection was .made. At the conclusion of testimony, the Court explained to the
parties that it intended to give thesamejury lnstructions used during the-Defendant's first
trial, and it requested the parties to provide any additional jury instructions. that would
differ from those previously given. NT. 9/12/17 at 470. The Commonwealth specifically
stated that it did not object to the instructions as previously given. Jd. at 471. Defense
counsel did not voice an objection
.
to the use of the . previously given instructions, and did
not provide the Court with any additional proposed instructions. Id. at 470-471.14 As the
result ot the Defendant's failure to cite to the place in the certified record where the
vehicie/' N.T. 9/12/17 at .53'1 as is contemplated by and set. forth· in Pennsylvania
Suggested Standard Criminal Jury lnstructicn 12.901 A 1 for Attempted Murder where it
states " ... that the defendant did a certain act that is; [he] [she] [describe act]: ... "
Regardless, the Defendant did. not object at trial to the use ofthese examples, and the
Defendant's Rule · 1925(b) Statement does not assert that it was error for the Court to
employ them.thus.they are not at issue for purposes of the current appeal.
14
As the record confirms, the Court instructed the jury with regard to .atternpted murder
in accordance with the current edition of the Pennsylvania Suggested Standard Criminal
Jury Instructions. N.T. 9/12/17 at 518.. The jury charge given included the instruction that
in order to find the Defendant guilty of attempted murder; the jury must find, among other
things, that the Defendant "had the specific intent to kill [her children]. That is, she had a
fully formed intent to kill,.and. was consciousof her own intention." Id,
20
·-----------------------------------------·····
referenced instructions were requested, coupled with our confirmation that no such
request was made, the Defendant has waived the right to object to the instructions as
given, or the Court's failure to gJve the specific instructions now referenced. See
Pa.R.Crim.P. 647(0) ("No portions ofthe charge nor omissions from the charge may be
assigned as error, unless specific objections are made thereto before the jury retires to.
deliberate."): Commonwealth v. Walter,. .632 Pa. 174, 233, 119 A.3d 255, 290 (2015)
(finding that appellant who failed· to request a particular instruction at trial, and made no
objection to the charge actually given, waived challenge to failure to give particular
instruction) (citing Pa.RAP. 302; Pa.R'Crirn.P. 647(8); Commonwealth v.. Pressley. 584
Pa,.624, 887 A.2d 220, 223-225 (2005)).15
H. EIGHTH.ALLEGATION OF ERROR
The Defendant next asserts that the trial court erred when it denied "the
Defendants · Oral Motion for Dismissal of Charges For Alleged Perjury By Detective
Parker, at Defendant's Preliminary Hearing." Rule 1925(b) Statement at 4. As With all
prior allegations, the Rule 1925(b) Statement does not provide citation to the· certified.
record with regard to this claim of error. Reviewing the jury trial. transcript; we are able to
15
Even if preserved, this allegation of error is without merit. As iioted above, the record
clearly reflects that the Court properly instructed the jury as. to the required intent.
Additionally, the Defendant's citation to Commonwealth V; Griffith, 456 A:2.d 171 (Pa.
Super 1983) is unavailing. Rule 1925(b) Statement at 4. Griffin, which involved the
specific allegation that the lower court erred ln instructing the jury thatthey could find the
defendant. guilty of attempted m urder if they found that he attempted to commit murder of
the second or third degree, is factually distinguishable from the instant case, which did·
not involve such an instruction, Griffin, 456A.2d.at 176 (emphasis added). Further; with
regard to. an insfructlon on transferred intent, the Rule 1925(b) Statement wholly fails to
address that doctrine, and fails to explain how the doctrine applies to this matter.
21
· ··-· --·---·---·-------------------------------
·
confirm that on September 12 i 2017, .after the jury was sworn and instructed and the day's
luncheon recess was completed, Defense counsel made an oral rnotlon to dismiss all
charges against the Defendanton the grounds that Detective Deborah Parker perjured
herself at the Defendant's May 12, 2016 preliminary hearing before Magisterial District
Judge Detzel, N.T. 9/l2/17 at 17. The. Commonwealth objected to the motion, asserting
that the allegation should have been raised ih a habeas hearing long before the start of
the. Defendant's second jury trial. Id, at 18. Following Defense counsel's detailed
explanation of the basis for the motion, the. Commonwealth responded that Defense
counsel had grossly misunderstood the testimony offered at the preliminary hearing and
had totally misconstrued and· misunderstood the discovery materials sent to the
Defendant. Id. at 23�26, 27. In denying the Defendant's motion to dismiss, this Court
noted thatthe Defendant had ample opportunity to file a timely written motion raising such
an allegation, but failed to do so. Id. at 19-20.16
Examining the Defendant's current claim that the Court erred .in denying her Motion
to Dismiss, we opine that this allegation of error provides no relief on appeal. Initially, it
is clear to the Court that the Defendant's motion (made long after the alleged perjury
occurred, after the Defendant's first trial, and after the time for pre-trial motions in the
second trial had passed) was. properly denied. Further, as observed by the
16 We note with displeasure that the. Rule 1925(b) Statement incorrectly states that this
court denied the motion because the Court "never had not heard' of such a thing." Rule
1925(b) Statement at 4 (no citation to the. certified record provided for the quotation
attributed to the Court). This Court goes to great .lengths to ensure that it does not
misquote counsel or the parties to anyproceedinq, and it expects the same consideration
from counsel. ·
· 22
Commonwealth .in its response to the Defendant's Rule 192�(b) Statement, errors at a
prelihlinary hearing are cured if·the defendant is found guilty at trial. Commonwealth's
Answerto Defendant's.Rule 1925(b).Statement at 7 (citing Commonwealth V; Sanchez,
623 Pa. 253, 82 A. 3d 943 (2013); Commonwealth v. Tyler,. 581 A,2d 326 (Pa. Super.
1991)). As explained by the Sup�rior Court in Commonwealth v. Fewell:.
Appellant's allegation oterror at.the preliminary hearing is moot. In
Commonwealth v. Tyler, 402 Pa. Super. 429, 587 A.2d 326 (1991), this
Court held that "[ o[nee appellant has gone to trial arid been found guilty ot
the crime, any defect in the preliminary hearing is rendered irnrnatenall.]"
Id. 587 A.2d at 3.28.. In Tvlef, the appellant appealed from a Judgment of
sentence entered after a jury convicted him.of possession and delivery of a
controlled substance. The appellant claimed that the Commonwealth:
established its prirna facie case at the preliminary hearing by the hearsay
testimony· of a confidential police informant, thus viobating his constitutional
right to confront his accuser. This Court rejected the appellant's claim arid
held that "[slince the Commonwealth met its burden of proving appellant
guilty·beyond a reasonabte doubt at trial, even if the Commonwealth had
failed to establish a prirna fade case at the preliminary hearing, it is
immaterial." Id. (citations .omitted).
Commonwealth V; Fewell, 654 A.2d 1109, 1112 {Pa. Super. 1995). Thus, even if the
Defendant had raised the alleged perjury in a timely fashion, that issue has been rendered
immaterial because she has since been found guilty following a jury trial. As such. she is
nbtentitled to.appellate relief on this allegation:
I. NINTH ANDTENTH AL,LEGATIONS OF ERROR
The Defendant's next two allegations of error relate to this Court's denial of the
Defendant's motions to dismiss based on allegations that the Commonwealth lost,
destroyed and/or tampered with evidence material to this case.
Speciffcally; the. Defendant's ninth allegation of error claims that th is Court erred in
denying a "Motion for Dismissal of Charges for Exculpatory Lost/Destroyed/Missing
23.
--·--·----·-----------------------------------
·-
Evidence," filed "when her car (material evidence) was destroyed and two (2) green
garden hoses were tampered with and manipulated while they were in the possession of
the Commonwealth." Rule 1925(b) Statement at 5.17 The Defendant's tenth allegation
of error assails. the denial of a "Motion for Dismissal of Charges for
Lost/Destroyed/Missing Evidence" filed "when a packed suitcase and pillows (material
evidence) was destroyed while it [sic] was in the possession of the Commonwealth:" Id.Although the Rule 1925(b) Statem�ntdoes not cite to the location in the certified
record where these motions were made and addressed by the court, our review of the
record confirms that on November 14, 2016, the Defendant. filed a motion titled
"Defendant's Motioh to Dlsmlss All Criminal Charges Because Material Evidence is
Missing Tampered With, Or Not Preserved," which raised .allegations pertaining to the
Defendant's car arid two green garden hoses. Motionfned 11/14/16. The Commonwealth
filed an answer to the motion, and theissue wasaddressed ata hearing; Following the
hearing, the parties were permitted to file additional briefs. which they did on November
28, 2016. Before .the Court decided the Defendant's motion to dismiss, however, the
Defendant filed an additional motion on December 11, 2016; tifl€!d.''Defendant'.s Second
Motion To Dismiss All Criminal Charges Because. Additional Material Exculpatory
Evidence is Missing; Destroyed, Or Not Preserved," raising allegations with regard to
'Defendant's packed suitcase, two (2) pillows, and blanket" Motion filed 1.2/11/16. The
11With regard to the hose observed running from the tailpipe of the Defendant's car into
the passenger compartment through the driver's window, we note that testimony and
evidence introduced at trial established that what initially appeared to be a single hose
was, in fact, two hosesjotned together. N.T 9/12/17 at 179.
24
........................,- ,._,..• , , ,,,._,.--,.- ·-----------------------�
Commonwealth answered the Defendant's additional motion, and on May 15, 2017, the
Court filed an Opinion and Order denyihg both of the Defendants motions. We rely on
the analysis and reasoning contained therein in response to both of the. Defendant's
current allegation's error;
To briefly summarize. with regard to the Defendant's car, we recognized that the
car had been destroyed by a third party, 'withoutpermissicn of the Commonwealth, the
vehicle's owner, or the proceeding required by law." .and that such destruction was under
investigation by the Pennsylvania State Police." Opinion filed 5/15/17, at 2. (citing
Oornmonwealth's Answer 11/15/16; N.T. 11/15/16 at26.:-27). Further, we determined that
there is no evidence of record. that the vehicle's disappearance and destruction was the
result of any bad faith on the part of the Commonwealth. Id. at 3, 6. Finally, we concluded
that the Defendant's vehicle constituted only "potentially useful evidence," no.t"materially
exculpatory evidence." Id. at 6.18 Therefore, we concluded · that the failure to preserve.
such evidence did not constitute the denial of due process. Id. at 3, 6 (Citing.Arizona v.
Youngblood, 188 u.s.·51, 58 (1998) (holdinp that "unless.a criminal defendant canshow
bad faith on the part of the. police; failure to preserve potentially useful evidence does not
constitute a nerrlal · of due process of law."). See .also Commonwealth v. Snyder, 599 Pa.
656, E>72, 963 A:2d 396, 406 (2009) (finding "potentially exculpatory" soil samples to be
"textbook case of potentially useful evidence:');
is In doing so, we specifically noted the Defendant's acknowledgement that the vehicle
constituted only "potentially eX.culpatory evidence." Opinion filed .5/15/17 at6 (citing N.T.
11115/16 at 18, 29).
25
With regard to the .garden hoses, as addressed above, when the.Defendant and
her children were found.seated in her parked car on the night of December 9, 2015. the
hoses were found running from the tailpipe of the car, throuqh.the driver's window, into
the. passenger compartment. N. T. 9/12/17 at 133, 135;.135, 149. The Defendant's Motion
to Dismiss asserted that on November 1, 2016, the date Defense counsel inspected and
photographed the evidence, Detective Parker and Assistant District Attorney Sam
Sanguedolce "liberally touched and handled [the] physical evidence.with their bare hands,
(never wearing gloves), thereby contaminating or tampering with if" Motion filed 11 /14/16
at 4. The Motion further asserted that the. hoses. appeared to Defense counsel to have
been "washed or otherwise cleaned.'; ld: at 5. The Motion to Dismiss asserted that the
Commonwealth's conduct "violates PA Rule 901 of Criminal Procedure because the
Commonwealth is required to produce. evidence sufficient to support a finding that the
item is what the proponent claim it is, and .thls again is imposslble." Id. at 5�6 (citing
Pa.R.Crjm.P. 901).19 Finally, the motion stated that "no forensic inspection/ an!'.J/or
testing" was conducted on the evidence from December 9, 2015 through the time the
Commonwealth allegedly "mishandled, wrohgfuUy manipulated, and washed or cleaned"
it. to. at 6,
19
Pennsylvania Rule pf Criminal Procedure 901 pertains to "Initiation of Post-Conviction
Collateral Proceedings. Defendant' Motion to Dismiss obviously intended to cite to
Pennsylvania Rule of i=vidence 9d1(a), which provides that "[t]o satisfy the requirement
ofauthenficatinq or identifying an item of evidence, the proponent must produce evidence
sufficient to support a finding that the item is what the proponent claims it is," Pa.RE.
901 (a).
26
In response to the Defendent's request to dismiss the charges against her based
on her allegations that the hoses were cleaned and that Detective Parker and Assistant
District Attorney Sanguedolc.e touched the hoses Without wearing gloves, the
Commonwealth indicated to the court that the hoses had not been washed, and were in·
'.
the same condition they were in when initiaily collected. N.T. 9/12/17 at 25-:26. The.
Commonwealth further suggested that because the Defendant was charged with
attempted murder, the absence. of exhaust remnant in the hoses would not serve to
exonerate her ... Id.In denying the Defendant's request to dismiss the charges against her based on
her allegations that the hoses were cleaned and that Detective Parker and Assistant
District Attorney Sanguedolce touched the hoses without wearing gloves we noted that
there was no credible evidence presented that the hoses were cleaned. Opinion filed
5/15/17 at 4. We additionally pointed out that the. hoses are in the possession of the
Commonwealth, weretnspected by the Defendant, ·and remained available for further
inspection. Id. Further, we found that the Defendant failed to Show how the alleged
handling of the hoses without gloves would ln any way alter the evidentiary value of
whatever tests the Defenda.nt might conduct on them. Id. atfi. FiriaUy, we concluded that
the.Defendant wholly failed to show that the hoses, or any findings that might be obtained
through testing ofthe hoses.are plainly exculpatory. Id. at 4. Because all that was shown
with regarc:i to the hoses is that they could have been subject to tests which might have
provided exonerating evidence, they: are at most 'potenttally useful" evidence, not
"materially.exculpatory evidence;" such that the Defendant.hadto demonstrate. that the
Commonwealth acted in bad faithin its preservation and handling of the hoses, Id. at 5
27
..-....
(citing Atiiona v. Youngblood, supra).20 This the Defendant did not do. There is simply
no evidence indicating that evidentiary material relative. to the hoses was destroyed and.
even if it were, the destruction of evidence involved only potentially useful evidence and
did not involve bad faith,
Similarly, with regard to the "packed suitcase and pillows" referencedby the Rule
1925(b) Statement's tenth ailegatioh of error! we denied the Defendant's request to
dismiss the. charges against her based· on her allegation that the Cernmonwealth tailed to
preserve such evidence because there is nothing of record to suggest that. these items
are anything more than potentially useful tothe Defendant. She has not established that
they constitute materially exculpatory evidence, and she has Wholly failed to show that
there was any bad faith. on the part ofthe Commonwealth with regard to the handling of
this evidence."
20 lnceed, with regard to the. alleged "cleaning" ofthe hoses, Defense counsel. specifically
indicated to the. Court that.he was not allegiog "intentional malfeasance or wrongdoing:"
{N.T. 11115/20,16 at 20). . . . . .
21 Further, to the extent that the Defendant's motions to dismiss relied on Brady v.
Maryland, 373 U.S. 83 (1963), we note that such reliance is misplaced .. As the Superior
Court.explained in Commonwealth v. Free, 902 A.2d 565, 573 (Pa. Super. 2006):
[M]atters such as .this one are not to be analyzed under Brady, as made
clear by the United States Supreme Court:
The Due Process Clause of the Fo1..1rte'enth Amendment, as
interpreted in Btadv, makes the good or bad faith of the State
irrelevant when the State fails to disclose to the defendant
material[,] exculpatory evidence. But we think the. Due
Process Clause requires a different result when we deal with
the failure of the State to preserve evidentiary matenar of
which no more can be said · then 'that it could have been
subjected to tests, the results ofwhich might have. exonerated
the defendant
Youngblood, supra at 57, 109 S.Ct. 333.
28
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The Defendant's two Motions to Dismiss were properly denied. As such, the
Defendant is. not entitled to appellate. relief based on her claim that.this Court erred in
denying the motions.
J. ELEVENTH ALLEGATION OF ERROR
The Defendant's Rule 1925(b) Statement lastly asserts that this Court erred in
denying her '!Motion for Dismissal of Charges for Violating the Speedy Trial Rule 600.''
1925(h) Statement at 6.. Although the Rule 1925(b) Statement does not cite to the location
in the certified record where the motion in question was made by the. Defendant or
addressed by this Court, our review of the record reflects that the Defendant filed a Rule
600 motion on April 21, 2017, asserting a violation of Rule 600(A)(2)(a).22
Pertinent to the Court's eventual denial. of the motion, the Defendant alleged
therein thatpursuantto Rule 600(A)(2), she should have been broughtto trial=on or about
April 4, 2017;" Motion filed 4/21/17 at 2;23 The motion went on to describe what the
Like the Court in Youngblood, we ate confident that Brady does not present
the properanalysis in this case. Instead, [California v: Trombetta, 467 U;S.
479 (1984)], and.its progeny in the federal courts and in this Commonwealth
apply. ·
.Commonwealfhv. Free, 902 J\:2d 565, 573 (Pa; Super. 2006) {italics added).
�� Pursuant to Rule 600(A)(2){a), trial in a court case in which a written complaint is filed
against t.he defendant must commence Within 365 days from the date on which the
complaint is filed. Pa.R'Crirn.P. 600(A)(2)(a); Further:
(1) For purposes of paragraph (A), periods of delay at any stage of the
proceedings caused by the Commonwealth when the Commonwealth has
failed to exercise due diligence shall be included in the computation of the
timewithin which trial must commence. Any other periods of delay shall be
excluded frorri the computation.
Pa.R.Crim.P. 6Q.O(C)(1).
23 The motion indicated thatthis date takes into account eighty-five (85) days that she
acknowledges are. attributable to. defense continuances. Motion filed 4/21 /17 at 2. The
motion did not provide any other specific time periods, but lndicated that "each and every
29
Defendant termed as the repeated "de-listing" of her case from the "'trial ready/trial
standby' list," which the moflon-asserted amounted to "untairly grant[ed] continuances" to
the Commonwealth. Id. at 3, The motion urged the Court to find that because the
Commonwealth did hot exercise due .diligence by "ehrontcally remov[iilg]"the Defendant's
case from the trial list," all computatlon.ottlme should run against the Commonwealth for
Rule 600 purposes. Id. at 4. The motion further asserted that mere assertlons of due
diligence and unsupported facts are insufflclent to "rneet the burden of a 'preponderance
of evidence' necessary to prove the existence of due diligence in bringing .a defendant to
trial, Id. at4 .. 5 (citing Commonwealth v. Caden 487A.2d
1
t, 4 (Pa.Super.1984)).
The Commonwealth filed an Answer and supporting brief to the Defendant's
motion to dtsmlss, .specitlcally addressing each delay in the case and the party the
Commonwealth betieved sho.lJl.d be held responsible for the. delay. Brief filed 4/26/17 at
3�7.24 Thereafter, the Commonwealth urged the Court.find that it has acted With due .
. diligence in bringing. the Defendant to trial. td. at 8. Additlonally, the Commonwealth
disputed the Defendant's claim thatthe time during which motions were pending before
· the Court is attrioutable.to the Commonwealth. Id.
A hearing on the Defendarifs Rule eoomcnon was conductedon May, 19, 2017,
after which the. Defendant's Rule 600 motion was denied. In addressing and denying the
motion. we acknowledged the Defendant's reference to "de-listtmqs," Which she believed
month" since "at least October2016," the Luzerne County District Attorney's office "de-
listed'; the Defendant's case from a "trial ready/trial standby list.'! Id: at 3..
:i4 We note that we are in agreement with the time periods and attribution of delay to the
parties set.forth in.the Commonwealth s April 26, 2017 brief.
1
30
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+-,
constituted "continuances" attributable to the Commonwealth for purposes ofcomputation.
of time for Rule 600. We opined, however. that this characterization was the result of
Defense counsel's misunderstandinq of the manner in which criminal cases are listed for
trial in Luzerne County. N.T. 5/19/17 at 8-9. We specitically explained that while not
every case on a trial list is called tor jury selection on any given Monday of the trial term,
the cases that were not called remain on that trial list, pending trial.. Id. at 8-'9. Despite
Defense counsel's confusion, cases are not "de-listed." Id. We further explained that a.
revlewof the docket in this matter reflects that there is. substantial time·which is excludable
from the Rule 600 computation, including numerous continuances agreed to by the
parties and pending pre-trial motions. Id. at 9. Finally, we explained thatany delay in
bringing the Defendant to. trial was not attributable to the Commonwealth for failure. to
exercise due diligence. Id.
Our denial of the Defendant's Rule 600 motion is fully supported by the record,
and the current allegation of error asserting otherwise is without merit In so suggesting,
we initiafly note that the Defendant's Rule 1925(b) Statement's single specific allegation
accompanying the. claim that her Rule 600 . rnotlon should have been granted is her
assertion that "ta} sign1ficantde1ay in the prcceedtnqs was not due to the unavailability of
the. Defendant, but rather due to the failure .of the Honorable Court to .rule on this said
motion for over 6 months." Id. As noted above, however, the Defendantfiled the Rule
600 motion on April 21, 2017, and the motion was denied by this Court on May 19, 2017.
The record thus beiies the. Defendant's claim that there was a. delay of "over 6 months" in
ruling on the motion.
31
Looking beyond this. confusion on the Defendant's part, a careful review of the
record as a whole confirms that the Defendant's Rule 600 motion was properly denied.
As the Comment to RUie '300 explains:
[T]he.inquiry for a judge in determining whether there is a violation .of the
time periods in paragraph (A) is whether the delay is caused solely by the.
Commonwealth when · the Commonwealth has· failed to exercise due
diligence; .See, e.q., Commonwealth v. Dixon, 58H Pa. 28; 907 A:2d 468
{2006); Commonwealth v: Matis, .551 Pa. 220, 710 A.2d 12 (1998). If the
delay occurred as the result of circumstances beyond the Cornmonwea'th's
control and despite its due diligence,. the time is excluded: See, e.g.
Commonwealth v. Browne, 526 Pa. 83, 584 A2d 902 (1990);
Commonwealth V;. Genovese, 493 Pa. 6.5, 425 A2d 31)7 (1981'). In
determining whether the Commonwealth has. exercised due diligence, the
courts have explained that "[d]ue diligence is faet-speclflc, to be determined
case-by-case; itdoes not require perfect vigilance and punctilious care, but
merely a showing the Commonwealth has 'put forth a. reasonable effort"
See, e.g., Commonwealth v. Selenski. 606 Pa 51, 61, 994 A.2d 1083, 1089.
(Pa. 2010) (citing Commonwealth v. Hilland Commonwealthv. Come/I, 558
Pa. 238;.256, 736 A.2d 578, 588 (1999)). .
Delay in the time for trial that is attributabie to the jiJdicic;1ry may be
excluded from the computation of time. See, e.g., Commonwealth v.
Crowley, 502 Pa, 393, 466 A.2d 1009· (1983). However; when the delay
attributable-to the court is so egregious that a constitutional right has been
impaired, the court.cannot be excused for postponing the defendant's trial
and the delay will not be excluded. See Commonwealth .v. Africa, 524 Pa.
118, .569 A.2d. 9.20 (1990):
Pa.R.Crim.P. 600, Comment. Although "[t]he Commonwealth . has the burden of
establishing by a. preponderance of the, evidence that it exercised due diligence
throughout the prosecution;'.' it is equally clear that "the administrative mandate of Rule
600 was not designed to insulate the. crirnlnally accused from good faith prosecution ·
delayed through no fault of the Commonwealth;" Commonwealth v. McCarthy, 180 A. 3d
368, 374-:375 (Pa. Super: 2018).
Here, the record before the Court clearly supports this Court's determination that
the Commonwealth met its burden of establishing by a preponderance of the evidence
32
-- .-.,,,
that it exercised due diljgence throughout the prosecution, and that no violation of Rule
600(A}(2) occurred. In reaching this conclusion, we note that to the contrary, the record
reflects that any delay that occurred here was the resultof circumstances beyond the
Commonwealth's control and despite. its due diligence.
We respectfully suggest to the. Superior Court that the denial of the Defendant's
Rule 600Motion is supported by the record, and did not representan abuse of discretion
on this Court's part, because the. denial did not override or misapply the law, was not
manifestly unreasonable, and was not the result of partiality, prejudice, bias or ill-will.
Commonwealth v. Bradford,. 616 Pa. 122. 134, 46 A.3d 693, 700 (2012). As such, the
Defendant's. current allegation of error in this reqard does not provide a basis for relief on
appeal.
CONCLUSION
For the foregoing reasons, the Defendant's appeal should be denied in its entirety,
and the Defendant'sjudqment of sentence affirmed.
33.
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