Com. v. Sones, T.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
TONIA LEE SONES :
:
Appellant : No. 1545 MDA 2021
Appeal from the Judgment of Sentence Entered October 29, 2021,
in the Court of Common Pleas of Northumberland County,
Criminal Division at No(s): CP-49-CR-0001095-2018
BEFORE: DUBOW, J., KUNSELMAN, J., and PELLEGRINI, J.*
MEMORANDUM BY KUNSELMAN, J.: FILED: JULY 8, 2022
Tonia Lee Sones appeals from the judgment of sentence 1 entered
following her jury trial and conviction of aggravated assault (three counts),
simple assault, endangering the welfare of a child, and recklessly endangering
another person.2 We affirm.
I. Background
On August 6, 2018, Pennsylvania State Police Trooper Joshua Kendrick
filed a criminal complaint against Sones, charging her with the above offenses
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* Retired Senior Judge assigned to the Superior Court.
1 An appeal in a criminal case lies from the judgment of sentence. Sones also
included on her notice of appeal the trial verdict and the order denying her
post-trial motion. We have corrected the caption accordingly.
218 Pa.C.S.A. §§ 2702(a)(1), (a)(9), and (a)(8), 2701(a)(1), 4304(a), and
2705, respectively.
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based on Sones leaving her child unattended in a hot car on June 1, 2018.
The trial court rejected a plea agreement for a sentence of county
imprisonment, and Sones rejected a plea offer for a sentence of state
imprisonment. Thus, the case proceeded to trial. At the beginning of jury
selection, the trial court erroneously stated that the child had died:
THE COURT: . . . It is alleged that this occurred back on June 1st,
2018 at -- in Delaware Township. Basically in a nutshell, the case
involves the death of her own child, a one and a half year old, who
was allegedly left inside a car for over five hours. So that is the
context.
[Defense counsel]: May we approach, Your Honor?
THE COURT: Yes.
[At sidebar]
[Defense counsel]: I thought you said the death.
THE COURT: I did. I’m sorry. She is not dead.
[Prosecutor]: She is not.
THE COURT: I’ll say serious injury. Thank you for the correction.
[In open court]
THE COURT: So I misspoke. I had used the term death of a child.
Actually, the child was -- is alive, but had sustained some serious
health problems. So I wanted to make that correction. Thank
you, [Defense counsel].
N.T., Jury Selection, 8/16/21, at 4–5. The parties selected the jury over the
next three hours, and trial began the following week.
The trial court described the evidence at trial:
A.S. was a healthy, happy 21-month-old toddler who lived
with her mother, [Sones], in Watsontown, Pennsylvania. She
could run and play like other children her age, and had been
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reaching age-appropriate milestones. After the incident of June
1, 2018, A.S., who is now 5, is confined to a special stroller chair
and receives her nutrition through a feeding tube in her stomach.
Instead of focusing on preparing for kindergarten and learning
how to count, write, and interact with children her age, A.S. is
continuing to re-learn how to hold her head up, walk, eat and
swallow so that she does not choke or aspirate food into her lungs,
actions that she already learned and had the ability to do, but
must learn again due to traumatic brain injury sustained from her
mother’s actions. Along with seeing many specialists for medical
care, A.S. now requires constant care and monitoring at her
grandmother’s home. All of these changes of A.S. are attributable
to [Sones] leaving her belted in her car seat in a hot car in June
of 2018. [Sones] arrived home at approximately 7:15 AM on that
day after picking the child up from her mother’s home after a ten-
hour shift at Great Dane, where she was employed as a Welder/
Fabricator. [Sones] went inside of her home, inexplicably leaving
the child belted in the car seat with the doors locked and the
windows rolled up allegedly because she didn’t want to disturb the
sleeping child. Once inside, [Sones] fell asleep, along with her
paramour.[fn1] When she woke up nearly 5 hours later, it was
approximately 12:30 PM and 82 degrees Fahrenheit outside.
[Sones] ran to the car, where she found the child seizing in her
car seat.
1There was conflicting testimony as to whether the [child’s]
grandmother visited the residence after [Sones] arrived
home with the child. [Sones’] paramour at the time and the
grandmother’s testimony reflected that the grandmother
came over [and] talked to [Sones] and her paramour about
a mechanic and an upcoming graduation event. The
grandmother testified that [Sones] was awake and alert.
On August 26, 2021, after a two-day jury trial, [Sones] was
found guilty of [the above offenses]. On October 29, 2021,
[Sones] was scheduled for sentencing at 9:15 A.M., but did not
appear. A bench warrant was issued and [Sones] was found at
her home hiding in a closet with a gun. She was brought into the
courthouse for sentencing that afternoon, and when asked by [the
trial court] why she did not appear, [Sones] stated that she was
going to end her life. The [trial court] subsequently sentenced
[Sones] to an aggregate of 4 ½ to 9 years in a State Correctional
Institution.
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Trial Court Opinion, 1/13/22, at 1–2. Sones did not file a post-sentence
motion. She filed a timely notice of appeal. Sones and the trial court complied
with Pennsylvania Rule of Appellate Procedure 1925.
II. Analysis
Sones raises the following issues for our review:
1. Whether the misstatement during jury selection by the trial
court that the infant was deceased was prejudicial to the
defense?
2. Whether the trial court’s correction of the misstatement during
jury selection that the infant was not deceased “but had
sustained some serious health problems” was prejudicial to the
defense since this was a fact that was to be determined by the
jury not the court.
3. Whether the jury instruction for Aggravated Assault provided
to the jury was insufficient and legally incorrect?
4. Whether the sentence imposed was excessive and greater than
necessary to achieve the purposes of sentencing?
Sones’ Brief at 4.
We find that Sones is not entitled to relief on any of these claims.
A. Sones waived her arguments about the trial court’s statements
during jury selection because she did not request a mistrial.
Sones’ first two issues on appeal concern the trial court’s statements
during jury selection—first that “the case involves the death of” A.S., and
second, after counsel indicated the error at sidebar, that A.S. “is alive, but
had sustained some serious health problems.” N.T., Jury Selection, 8/16/21,
at 4–5. Sones argues that the misstatement prejudiced her, that the curative
instruction was inadequate, and that the only appropriate remedy was to
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replace the panel of prospective jurors. Sones’ Brief at 14–18. She therefore
reasons that the trial court abused its discretion by not declaring a mistrial.
We review a trial court’s denial of a motion for mistrial for an abuse of
discretion. Commonwealth v. Bryant, 67 A.3d 716, 728 (Pa. 2013).
In this case, Sones did not request a mistrial, either in response to the
trial court’s misstatement or to its correction. “When an event prejudicial to
the defendant occurs during trial[,] only the defendant may move for a
mistrial; the motion shall be made when the event is disclosed. Otherwise,
the trial judge may declare a mistrial only for reasons of manifest necessity.”
Pa.R.Crim.P. 605(B). Although Sones’ counsel promptly apprised the trial
court of the misstatement, counsel never moved for a mistrial. Sones “cannot
now complain that the court erred in failing to grant a mistrial when no such
motion was made.” Commonwealth v. Ables, 590 A.2d 334, 340 (Pa.
Super. 1991) (citing Commonwealth v. Tallon, 387 A.2d 77, 82 (Pa. 1978)).
Furthermore, the trial court did not abuse its discretion by failing to
declare a mistrial sua sponte. Our Supreme Court recently affirmed that a
trial court has authority to declare a mistrial sua sponte “only when the
‘interest of justice’ requires it.” Temple v. Providence Care Ctr., LLC, 233
A.3d 750, 765 (Pa. 2020) (quoting Commonwealth v. Powell, 590 A.2d
1240, 1242 (Pa. 1992)). However, “when a party recognizes an error, but
fails to preserve that error,” a trial court should declare a mistrial sua sponte
“only where ‘exceedingly clear error’ results in ‘manifest injustice.’” Id. at
766 (quoting Ewing, 1 Binn. 450, 455–56 (Pa. 1808) (opinion of Tilghman,
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C.J.)). “That ‘exceedingly clear error’ should be of a constitutional or
structural nature, and ‘manifest injustice’ must be of such a magnitude as to
amount to a severe deprivation of a party’s liberty interest.” Id. (applying
this standard to both criminal and civil cases).
Here, the trial court misspoke while describing the general nature of the
case to the prospective jurors. Once Sones’ counsel indicated the error and
the court corrected itself, the case proceeded to jury selection. “[T]he purpose
of voir dire is solely to ensure the empaneling of a competent, fair, impartial,
and unprejudiced jury capable of following the instructions of the trial court.”
Commonwealth v. Delmonico, 251 A.3d 829, 839 (Pa. 2021) (quoting
Commonwealth v. Knight, 241 A.3d 620, 640 (Pa. 2020)). The trial court
and attorneys fully questioned the prospective jurors in this case about
possible bias. The trial court readily excused numerous prospective jurors
who indicated that they would not be able to be fair. In its trial instructions,
the court correctly informed the jury that the Commonwealth had the burden
to prove all the elements of the offenses, including that A.S. had sustained
serious bodily injury. This process ensured that the selected jurors were fair
and were correctly informed as to the law. Therefore, the trial court did not
abuse its discretion when it did not declare a mistrial sua sponte.
Because Sones did not preserve a challenge to the trial court’s
misstatement or to its correction, and because the trial court acted within its
discretion by proceeding with jury selection, Sones is not entitled to relief on
her first two issues.
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B. Sones waived her challenge to the adequacy of the trial court’s
instruction on of the malice required for aggravated assault.
Sones next challenges the trial court’s instructions on the three counts
of aggravated assault. Sones’ Brief at 18–25. She argues that aggravated
assault requires malice, which goes beyond ordinary criminal recklessness,
and she alleges that the trial court’s instructions were deficient in describing
this element. Id. However, Sones’ only objections to the court’s instructions
concerned causation, not malice. Therefore, she waived this specific
challenge.
Regardless, the trial court’s instructions adequately apprised the jury of
the elements of aggravated assault.
Generally, in an appeal challenging jury instructions following a
conviction and the imposition of sentence, our standard of review
is for an abuse of discretion or an error of law controlling the
outcome of the case. In such circumstances, a jury charge “will
be found adequate unless the issues are not made clear, the jury
was misled by the instructions, or there was an omission from the
charge amounting to a fundamental error.”
Commonwealth v. Stone, 273 A.3d 1163, 1169 (Pa. Super. 2022) (en banc)
(citing and quoting Commonwealth v. Williams, 241 A.3d 1094, 1109 (Pa.
Super. 2020)). “The trial court is not required to give every charge that is
requested by the parties[,] and its refusal to give a requested charge does not
require reversal unless the Appellant was prejudiced by that refusal.”
Commonwealth v. Sandusky, 77 A.3d 663, 667 (Pa. Super. 2013) (quoting
Commonwealth v. Thomas, 904 A.2d 964, 970 (Pa. Super. 2006)).
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Relevant here, police charged Sones with violating three distinct
subsections of the aggravated assault statute. First, Section 2702(a)(1)
provides that a person commits aggravated assault by “caus[ing serious
bodily] injury intentionally, knowingly or recklessly under circumstances
manifesting extreme indifference to the value of human life.” 18 Pa.C.S.A.
§ 2702(a)(1). Second, under Section 2702(a)(8), a person over 18 commits
aggravated assault by “intentionally, knowingly or recklessly caus[ing] bodily
injury to a child less than six years of age.” Under Section 2702(a)(9), a
person over 18 commits aggravated assault by “intentionally, knowingly or
recklessly caus[ing] serious bodily injury to a child less than 13 years of age.”
Aggravated assault under Section 2702(a)(1) requires malice;3 “mere
recklessness is insufficient to support a conviction for aggravated assault.”
Commonwealth v. O’Hanlon, 653 A.2d 616, 618 (Pa. 1995).
[F]or the degree of recklessness contained in the aggravated
assault statute to occur, the offensive act must be performed
under circumstances which almost assure that injury or death will
ensue. The recklessness must, therefore, be such that life
threatening injury is essentially certain to occur. This state of
mind is, accordingly, equivalent to that which seeks to cause
injury.
Id. “[T]he mens rea required for a conviction of aggravated assault, like third-
degree murder, is malice; only the result of the crimes differ.”
Commonwealth v. Packer, 168 A.3d 161, 168 (Pa. 2017). For both crimes,
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3Section 2702(a)(8) and (a)(9) do not require malice. Commonwealth v.
Widger, 237 A.3d 1151, 1157 n.4 (Pa. Super. 2020).
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a defendant has acted with malice if he or she “did not have an intent to kill,
but nevertheless displayed a conscious disregard for ‘an unjustified and
extremely high risk that his [or her] actions might cause death or serious
bodily harm.’” Id. (quoting Commonwealth v. Santos, 876 A.2d 360, 364
(Pa. 2005)).
Notably, we have found the standard instruction for aggravated assault
to adequately express the concept of malice—as long as it states that the
defendant must act recklessly “under circumstances manifesting extreme
indifference to the value of human life.” Commonwealth v. Myers, 722 A.2d
1074, 1077–78 (Pa. Super. 1998) (distinguishing Commonwealth v.
Nichols, 692 A.2d 181, 187 (Pa. Super. 1997)).
Here, during trial, the parties and the trial court had an ongoing
discussion about the charges of aggravated assault. At a sidebar during the
redirect examination of Sones, the court indicated that it did not intend to
charge the jury on malice, and it precluded Sones’ counsel from using that
term. N.T., 8/26/21, at 247. Later, after reviewing cases and argument from
the parties, the trial court ruled that counsel for the parties could argue that
“there is a higher standard here with regard to malice.” Id. at 252–260.
Counsel for Sones then requested an instruction under 18 Pa.C.S.A.
§ 303(c). Id. at 260. That section provides: “When recklessly . . . causing a
particular result is an element of an offense, the element is not established if
the actual result is not within the risk of which the actor is aware . . . .”
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The trial court provided the standard instruction for each count of
aggravated assault to the jury. After charging on Count 1, aggravated assault
under 18 Pa.C.S.A. § 2702(a)(1), the court provided the requested instruction
under Section 303(c): “When recklessly causing a particular result is an
element of an offense, the element is not established if the actual result is not
within a risk of which the actor is aware.” N.T., 8/26/21, at 277–278.
However, the trial court did not provide the Section 303(c) instruction after
charging on the other counts of aggravated assault. Id. at 278–279. And,
when the jury asked to hear the definitions again, the trial court did not
provide the Section 303(c) instruction at all. Id. at 294. Sones’ counsel
objected to these omissions. Id. at 290–291, 296–297. Counsel did not
otherwise object to the court’s instructions.
Sones’ objections preserved a challenge to the trial court’s omission of
the Section 303(c) instruction. See Pa.R.A.P. 302(b); Pa.R.Crim.P. 647(C).
However, this provision pertains to causation, not malice. These are separate
elements that the Commonwealth must prove to sustain a conviction of
aggravated assault. That is, a person could cause serious bodily injury without
acting maliciously. And a person acting with malice could set forth a chain of
events leading to injury, the chain being so attenuated that the person did not
“cause” the injury for purposes of criminal law.
Although Section 303(c) references recklessness (and negligence), its
effect is to limit criminal liability to cases where the result is within the risk of
which a defendant is aware. Commonwealth v. Rementer, 598 A.2d 1300,
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1306 & n.5 (Pa. Super. 1991). We have explained that this requires the result
to be a “natural or foreseeable consequence” of the defendant’s conduct,
which is narrower than the tort concept of proximate cause. Commonwealth
v. Spotti, 94 A.3d 367, 375–80 (Pa. Super. 2014) (en banc);
Commonwealth v. Buterbaugh, 91 A.3d 1247, 1257 (Pa. Super. 2014) (en
banc); Commonwealth v. Nunn, 947 A.2d 756, 760 (Pa. Super. 2008)).
Therefore, the only challenge to jury instructions that Sones preserved relates
to causation, not state of mind.
Because Sones argues on appeal that the trial court’s instructions were
inadequate to describe malice, but her challenged instruction described
causation, she has waived this issue. Regardless, the trial court provided the
standard instruction on aggravated assault, including that the jury had to find
beyond a reasonable doubt that Sones acted “intentionally, knowingly, or
recklessly under circumstances manifesting extreme indifference to the value
of human life.” N.T., 8/26/21, at 277. This adequately apprises the jury of
the malice requirement. Myers, 722 A.2d at 1077–78. Therefore, the trial
court did not abuse its discretion in providing the standard instructions on the
aggravated assault charges, and Sones is not afforded relief on this issue.
C. Sones did not preserve a challenge to the discretionary aspects
of her sentence.
In her final issue, Sones challenges her aggregate sentence of four and
a half to ten years of imprisonment. Sones’ Brief at 25–29. She asserts that
the trial court did not consider her individual characteristics or the presentence
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investigation report, focused only on the severity of the harm to A.S., and did
not set forth its reasoning at sentencing. Id. at 29.
Sones’ claims go to the discretionary aspects of her sentence.
Commonwealth v. Velez, 273 A.3d 6, 9 (Pa. Super. 2022) (claim that trial
court considered only the offense and the victim, not the defendant);
Commonwealth v. Robinson, 931 A.2d 15, 26–27 (Pa. Super. 2007) (en
banc) (claim that trial court did not state adequate reasons on the record).
An appeal raising the discretionary aspects of sentencing is not
guaranteed of right; rather it is considered a petition for
permission to appeal. Commonwealth v. Williams, 562 A.2d
1385, 1368–87 (Pa. Super. 1989) (en banc). Before this Court
can address such a discretionary challenge, an appellant must
invoke this Court’s jurisdiction by: (1) filing a timely notice of
appeal, see Pa.R.A.P. 902 and 903; (2) properly preserving the
issue at sentencing or in a motion to reconsider and modify
sentence, see Pa.R.Crim.P. 720; (3) including in his brief a
concise statement of reasons relied upon for allowance of appeal
pursuant to Pa.R.A.P. 2119(f); and (4) raising a substantial
question that the sentence appealed from is not appropriate under
the Sentencing Code. Id.Commonwealth v. Wallace, 244 A.3d 1261, 1278 (Pa. Super. 2021)
(citation format altered).
Here, Sones did not preserve her sentencing issue either at sentencing
or in a post-sentence motion. “[I]ssues challenging the discretionary aspects
of a sentence must be raised in a post-sentence motion or by presenting the
claim to the trial court during the sentencing proceedings. Absent such
efforts, an objection to a discretionary aspect of a sentence is waived.”
Commonwealth v. Bradley, 237 A.3d 1131, 1139 (Pa. Super. 2020)
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(quoting Commonwealth v. Griffin, 65 A.3d 932, 936 (Pa. Super. 2013)).
Although Sones’ trial counsel filed a post-trial motion before sentencing, this
motion could not alert the trial court to an issue with a sentence that had not
yet been imposed. A review of the sentencing transcript reveals no objection
to Sones’ sentence. And Sones did not file a post-sentence motion before she
appealed. As such, she has failed to preserve a sentencing challenge for our
review.
III. Conclusion
In sum, Sones did not object to the jury selection or request a mistrial.
The trial court properly instructed the jury on aggravated assault and malice.
Sones waived her sentencing claims.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/08/2022
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