Com. v. Baggetta, N.

J-A14002-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.0.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
NICODEMO M. BAGGETTA
Appellant : No. 892 MDA 2020
Appeal from the Judgment of Sentence Entered January 14, 2020
In the Court of Common Pleas of Lackawanna County Criminal Division at
No(s): CP-35-CR-0001287-2018
BEFORE: BENDER, P.J.E., STABILE, J., and STEVENS, P.J.E.*
MEMORANDUM BY BENDER, P.J.E.: FILED AUGUST 09, 2022
Appellant, Nicodemo M. Baggetta, appeals from the aggregate judgment
of sentence of 54 to 108 months’ incarceration, followed by 6 years’ probation,
imposed after a jury convicted him of institutional sexual assault, 18 Pa.C.S.
§ 3124.2(a.2)(1), endangering the welfare of a child, 18 Pa.C.S. § 4304(a)(1),
corruption of a minor, 18 Pa.C.S. § 6301(a)(1)(ii), and furnishing alcohol to a
minor, 18 Pa.C.S. § 6310.1(a). Appellant raises various issues on appeal,
including challenges to the weight and sufficiency of the evidence, and the
discretionary aspects of his sentence. After careful review, we affirm.
Appellant was convicted of the above-stated offenses based on evidence
that he and his wife sexually abused a minor, female victim over the course
“ Former Justice specially assigned to the Superior Court.
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of several months.! More specifically, Appellant, who was a former substitute
teacher at the victim’s high school, began a sexual relationship with the victim
during her sophomore year in high school. The victim testified that Appellant’s
wife, who was also a teacher and the band director at the school, knew about
the victim’s sexual relationship with Appellant and, on one _ occasion,
participated with the victim in performing oral sex on Appellant. The victim
testified that she regularly stayed overnight at Appellant’s home, sometimes
sleeping in the bed between him and his wife. The relationship culminated
with Appellant, his wife, and the victim getting matching wrist tattoos.
Ultimately, the victim told her psychologist about the relationship, who then
reported it to authorities.
Appellant and his wife were arrested and charged with various offenses.
They were tried as co-defendants before a jury in June of 2019. After a three-
day trial, the jury convicted Appellant of the above-stated crimes, and his wife
of similar offenses. Appellant was sentenced on January 14, 2020, to the
aggregate term set forth supra. He filed a timely post-sentence motion, which
was not ruled on by the court within the requisite 120 days. See Pa.R.Crim.P.
720(B)(3)(a). Consequently, Appellant preaciped the clerk of courts to enter
an order denying his post-sentence motion by operation of law pursuant to
Pa.R.Crim.P. 720(B)(3)(c). Instead of the clerk of courts doing so, however,
1 Appellant’s wife was his co-defendant at trial, and her appeal from the
judgment of sentence imposed after she was convicted is before this Court at
docket number 893 MDA 2020.
-2?-
J-A14002-22
the trial court entered an order on June 25, 2020, denying Appellant’s post-
sentence motion.
Appellant then filed a notice of appeal on June 30, 2020.23 Appellant
also complied with the trial court’s order to file a Pa.R.A.P. 1925(b) concise
statement of errors complained of on appeal. The court filed its Rule 1925(a)
opinion on October 7, 2021. Herein, Appellant states the following issues for
our review:
A. Weight of the Evidence
i. Whether the trial court incorrectly denied Appellant’s
Motion for a New Trial/Judgment of Acquittal when
presented with the following regarding the weight of the
evidence: that the jury’s determination that Appellant
committed the crime of institutional sexual assault, is so
contrary to the evidence presented, or lack thereof, as to
shock the conscience, so as to warrant a new trial, in light
of the fact that there was no physical or corroborative
evidence of sexual activity, no digital evidence suggesting
2 Appellant incorrectly stated in his notice of appeal that he is appealing from
the June 25, 2020 order denying his post-sentence motion. An appeal
properly lies from the judgment of sentence. See Commonwealth v.
Shamberger, 788 A.2d 408, 410 n.2 (Pa. Super. 2001) (en banc). We have
corrected the caption accordingly.
3 Because the clerk of courts never entered an order denying Appellant’s post-
sentence motion by operation of law, and the court’s order was entered
outside the 120-day period, Appellant’s June 30, 2020 notice of appeal could
be considered untimely. However, this Court has held that a breakdown in
the operations of the court occurs when the clerk of courts fails to enter an
order deeming a post-sentence motion denied by operation of law as required
by Rule 720(B)(3)(c). See Commonwealth v. Patterson, 940 A.2d 493,
498-99 (Pa. Super. 2007) (citation omitted). Accordingly, we decline to quash
this appeal.
J-A14002-22
sexual activity, and both [A]ppellant and his co-defendant
denied said sexual activity?
ii. Whether the trial court incorrectly denied Appellant’s
Motion for a New Trial/Judgment of Acquittal when
presented with the following regarding the weight of the
evidence: that the jury’s determination that Appellant
engaged in a course of conduct that violated a duty of care
to the victim, is so contrary to the evidence presented, or
lack thereof, as to shock the conscience, so as to warrant a
new trial, in light of the fact that Appellant repeatedly
encouraged [the] alleged victim to seek psychiatric help,
repeatedly consulted with the alleged victim’s parents
regarding her mental health, took steps to check on the
health and well-being of the alleged victim, and the fact that
although there were thousands of contacts between
Appellant and the alleged victim, none were shown to have
placed her in danger, or were shown to have either
established a duty of care or that duty of care was violated?
iii. Whether the trial court incorrectly denied Appellant’s
Motion for a New Trial/Judgement [sic] of Acquittal when
presented with the following regarding the weight of the
evidence: whether the jury’s determination that Appellant
corrupted the morals of a minor by committing the crime of
institutional sexual assault, is so contrary to the evidence
presented, or lack thereof, as to shock the conscience, so
as to warrant a new trial, in light of the fact that there was
no physical or corroborative evidence of sexual activity,
[and] no digital evidence suggesting sexual activity?
iv. Whether the trial court incorrectly denied Appellant’s
Motion for a New Trial/Judgment of Acquittal when
presented with the following regarding the weight of the
evidence: that the jury’s determination that Appellant
furnished alcohol to a minor, is so contrary to the evidence
presented, or lack thereof, as to shock the conscience, so
as to warrant a new trial, in light of the fact that there was
no evidence of the alleged victim being under the influence
of alcohol, or testimony as to the effects of the purported
alcohol on the alleged victim such that one could infer her
ingestion of an actual alcoholic substance?
B. Sufficiency of Evidence
J-A14002-22
i. Whether the adjudication of guilt for endangering the
welfare of [a] child[] is based upon insufficient evidence
where the Commonwealth failed to prove beyond a
reasonable doubt that there existed a duty of care and
support for the alleged victim and/or that the duty of care
and support was violated?
ii. Whether the adjudication of guilt for furnishing alcohol to
minors is based on_ insufficient evidence where the
Commonwealth failed to establish by either direct or
circumstantial evidence that ... any alcohol was provided to
a minor in that there was no testing of the purported
alcoholic substance, there was no testimony of impact
suffered as a result of substance, nor any testimony
regarding the minor’s prior experience or knowledge of
effects?
C. Denial of pre-trial Motion for Review of Psychological
Records
Whether the trial court erred as a matter of law in denying
Appellant’s request that an in-camera review of [the
victim’s] psychological records be conducted, when there
was no showing that the entirety of the requested materials
would be covered ... pursuant to 42 Pa.C.S.[] § 5944 and
Appellant was therefore denied full and fair cross-
examination?
D. Denial of Request for Mistrial following Pedophile
Comments in Closing
Whether the trial court erred in refusing to grant
[Appellant’s] request for a mistrial, following the prosecutor
twice referring to ... Appellant and his co-defendant as
“pedophiles” during closing arguments; thereby prejudicing
the jury in such a manner as it was impossible for jury
people to render a fair and impartial verdict?
E. Sentencing issues
i. Whether the trial court erred in sentencing Appellant in
the aggravated range and failed to state sufficient reasons
for and/or relied on factors contemplated by the statute?
ii. Whether the trial court abused its discretion in failing to
consider the history, character, and condition of ... Appellant
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J-A14002-22
and imposing a sentence that was not individualized to
Appellant and was excessive?
Appellant’s Brief at 8-11 (Some unnecessary capitalization omitted).
In assessing Appellant’s issues, we have reviewed the certified record,
the briefs of the parties, and the applicable law. Additionally, we have
examined the well-reasoned opinion of the Honorable Michael J. Barrasse of
the Court of Common Pleas of Lackawanna County. We conclude that Judge
Barrasse’s 63-page, comprehensive opinion accurately disposes of the issues
presented by Appellant. Accordingly, we adopt Judge Barrasse’s opinion as
our own and affirm Appellant’s judgment of sentence for the reasons set forth
therein.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Es¢
Prothonotary
Date: 08/09/2022
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COMMONWEALTH OF: . : IN THE COURT OF COMMON PLEAS
PENNSYLVANIA : ‘OF LACKAWANNA COUNTY
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NICODEMA BAGGETTA =
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i. |
|, OPINION
BARRASSE, J.
This opinion is filed pursuant to Rule 1925(a) of the Pennsytvania Rules of Appellate
Procedure and pursuant to the request of the Superior Court. The Appellant’s issues for appeal
are as follows:
1. Whether the trial court incorrectly denied Defendant’s Motion for a New
Trial/Judgement of Acquittal when presented with the following regarding the
weight of evidence and/or whether the jury’s determination is so contrary to the
evidence presented or the lack thereof, shocking the conscience, such as to warrant a
new trial as to the offense of Institutional Sexual Assault when there was no physical
or corroborative evidence of sexual activity, no digital evidence suggesting sexual
activity, and both Defendant and Co-Defendant denied said sexual activity?
Whether the trial court incorrectly denied Defendant’s Motion for a New
Trial/Judgement of Acquittal when presented with the following regarding the
weight of evidence and/or whether the jury’s determination is so contrary to the
evidence presented or the lack thereof, shocking the conscience, such as to warrant a
new trial as to the offense of Endangering Welfare of Children, finding a “course of
conduct,” when the Defendant repeatedly encouraged alleged victim to seck
psychiatric help, repeatedly consulted with the alleged victim’s parents regarding
her mental health, took steps to check on the health and well-being of the alleged
victim, and the fact that although there were thousands of contacts between
Defendant and the alleged victim, none were shown to have placed her in danger, or
were shown to have either established a duty of care or that a duty of care was
violated?
Whether the trial court incorrectly denied Defendant’s Motion for a New
Trial/Judgement of Acquittal when
presented with the following regarding the
weight of evidence and/or whether the
evidence presented or the lack thereof,
jury’s determination is so contrary to the
shocking the conscience, such as to warrant a
new trial as to the offense of Corruption of Minors, finding a violation of a sexnal
offense under the crimes code when there was no physical or corroborative evidence
8,
9.
of sexual activity, no digital evidence suggesting sexual activity, and both Defendant
and Co-Defendant denied sexual activity?
Whether the trial court incorrectly denied Defendant’s Motion for a New
Trial/Judgement of Acquittal when presented with the following regarding the
weight of evidence and/or whether the jury’s determination is so contrary to the |
evidence presented or the lack thereof, shocking the conscience, such as to warrant a
new trial as to the offense of Furnishing Alcohol to a Minor, when there was no
evidence of the alleged victim being under the influence of alcohol or testimony as to
the effects of the purported alcohol on the alleged victim such that one could infer
her ingestion of an actual alcoholic substance?
Whether the trial court incorrectly denied Defendant’s Motion for a New
Trial/Judgement of Acquittal when presented with the following regarding the
sufficiency of the evidence and/or whether the evidence was insufficient to support
the jury’s finding of guilt as to the offense of Endangering of Welfare of Children
when the Commonwealth failed to present evidence establishing that there existed a
duty of care and support for the alleged victim and/or that the duty of care and
support was in any way violated?
Whether the trial court incorrectly denied Defendant’s Motion for a New
Trial/Judgement of Acquittal when presented with the following regarding the
sufficiency of the evidence and/or whether the evidence was insufficient to support
the jury’s finding of guilt as to the offense of Furnishing Alcohol to a Minor when
the Commonwealth failed to present sufficient evidence that an actual alcoholic
beverage was furnished to a minor in that there was no testimony regarding victim’s
knowledge of or prior experience with alcoholic beverages, or testimony regarding
any impact suffered as a result of ingesting the purported “alcoholic” beverage?
Whether the trial court erred in failing to grant Defendant’s pretrial motion for
examination or in camera examination of the alleged victim’s psychological records
wher the mental heaith of the victim was at issue in the trial, the records could have
supported elements of Defendant’s defense, and when there would have been no
harm to the victim, as the defense sought an in camera review, and that any
perceived harm to the victim would be substantially outweighed by the harm posed
to the Defendant in not disclosing said records resulting in the abrogation of the
Defendant’s Sixth Amendment confrontation rights under both the United States
and the Pennsylvania constitutions?
Whether the trial court erred in refusing to grant Defendant’s request for a mistrial,
following the prosecutor twice referring to the Defendant as a “pedophile,” during
close arguments prejudicing the jury so as to render a fair and impartial verdict?
Whether the trial court erred in imposing a sentenced and/or erred in failing to
modify its sentenced pursuant to Defendant’s Post-Sentence Motions, when the
sentence was in the aggravated range of the Pennsylvania sentencing guidelines and
the court failed to state sufficient reasons and/or relied on inappropriate and/or
factors already contemplated by the statute under which Defendant was convicted?
10. Whether the trial court abused its discretion in the imposition of a sentence of 4 4 -9
years’ total confinement, which is in the aggravated range of the applicable
Guidelines, in that it was not “necessary” to address the “nature and circumstances
of the crime” in light of the history, character and condition of the Defendant and
was not “consistent with the protection of the public, the gravity of the offense as it
relates to the impact on the life of the victim and on the community and
rehabilitative needs of the defendant?”
11. Whether the trial court erred regarding the sentencing of the Endangering the
Welfare of Children count as a third degree felony, when the Criminal Information
failed to allege a “course of conduct” required for the enhanced grading, regardless
of the specific question posed to the jury on the verdict slip?
12. Whether the trial court erred in denying Defendant’s Motion for Bail Pending
Appeal when there was already a significant amount of time in jail served, and
Defendant presents no threat to the community and/or victim, has both family and |
community support, presents no flight risk, as evidenced by the fact that while
previously on bail he appeared for all required court appearances and committed no
bail violations and desires to both begin the process of rebuilding his life and
actively participate in the preparation of her appeal?
FACTUAL AND PROCEDURAL HISTORY
Appellant, Nicodemo Baggetta, former substitute teacher at Lakeland High School and
husband of Ruth A. Baggetta, band director at Lakeland High School in Scott Township,
Pennsylvania became the focus of an investigation conducted by the Lackawanna County
District Attorney’s Office “Special Victim’s Unit,”’ when eighteen (18) year 1
disclosed incidences of abuse to her counselor. Being a mandated reporter, the counselor
referred the incidences of abuse to ChildLine.? Upon receipt of the ChildLine referral and report,
Lakeland School District resource officer Frank Rapoch of the Scott Township Police
Department contacted Detective Michelle Mancuso of the Lackawanna County District
' The “Special Vietim’s Unit” investigates crimes against children, including physical and sexual abuse against
children.
? ChildLine is a child abuse hotline that provides a means for mandated reporters to report child abuse in
Pennsylvania.
|
Victim |
Attorey’s Office, “Special Victim’s Unit.” Detective Mancuso extensively interviewed Sa
who provided detailed descriptions beginning in 2015 through 2018 of a manipulative and
intimate sexual relationship involving the Appellant, and the Appellant’s wife, Ruth A. Baggetta, |
her band teacher.’ As a result of the investigation, on March 29, 2018, through Criminal i
Information, the Commonwealth charged the Appellant with the following offenses: one (1)
count of Institutional Sexual Assault, 18 Pa. C. S. §3124.2; one ( 1) count of Endangering the
Welfare of Children- Parent/Guardian, 18 Pa. C.S. §4304(a)(1); one (1) count of Corruption of
Minors- Defendant age 18 or above, 18 Pa C.S. §6301(a)(1)(i); and one (1) count of Furnish
Liquor or Malt Beverage to a Minor, 18 Pa. C.S, §6310.1(a), On June 10, 2019, the
Commonwealth amended the Criminal Information to the following offenses: School-
Intercourse/Sexual Contact with Student, 18 Pa. C.S. §3124.2 (a.2)(1); Endangering the Welfare
of Children- Parent/Guardian, 18 Pa, C.S. §4304(a)(1); one (1) count of Corruption of Minors-
Defendant age 18 or above, 18 Pa C.S. §6301(a)(1)(ii); and one (1) count of Furnish Liquor or
Malt Beverage to a Minor, 18 Pa. C.S, §6316.1(a).
Subsequently, the Appellant proceeded to a three (3) day jury trial’ on each of the above-
cited offenses, (Notes to Testimony hereinafter, “N.T.” June 17, 2019- June 19, 2019).
During irial, the Commonwealth presented five (5) witnesses and admitted multiple exhibits,
including a voluminous Pen-Link database report documenting text and call frequencies and
Viet Vichm
times between SHMIMB and the Appellant, and @—B and the Appellant’s wife, Ruth Baggetta. At
the conclusion of the Commonwealth’s evidence, counsel for the Appellant made an oral motion
3 The Commonwealth also charged Ruth A. Baggetta with the following offenses: School-Intercourse/Sexual
Contact with Student, 18 Pa. C.S, §3124.2(a.2)(1); Endangering Welfare of Children- Parent/Guardian, 18 Pa, C.9,
§4304{a)(1); Corruption of Minors- Defendant age 18 or above, 18 Pa. C8, §6301(a)(1 tH); Furnish Liquor or Malt
Beverage to a Minor, 18 Pa, C.S. §6310.1(a); and Failure to Report/Refer, 23 Pa. C.S. §6319(a)(1), (2) (Hi). Ruth
A Bageetta is the listed Appetlant in Commonwealth vy. Ruth A. Baggetta, 2020 MDA 893.
4 This Court granted the Commonwealth's Motion for Joinder and joined for trial the above-captioned Appellant
with his wife, Ruth A, Baggetta on November 9, 2018.
for judgment of acquittal, which this Court denied, (N.T. June 18, 2019- p.m. p. 13-14), ‘The*
Appellant testified as well as the Appellant’s wife, Ruth Baggetta, and four (4) character
witnesses testifying jointly as to both the Appellant’s character and his wife, Ruth A. Baggetta’s
character.
Accordingly, after observing all testimonial evidence and exhibits presented, including
receiving several instructions provided by this Court, the jury found the Appeilant guilty on all
four (4) Counts of the Criminal Information, Relative to the grading of the Endangering Welfare
of Children offense, the jury found the additional fact that the Appellant engaged in a “course of
conduct.” Also, relative to the grading of the Corruption of Minors offense, the jury found the
additional fact that the Appellant engaged in a “course of conduct,” To that end. this Court
requested a pre-sentence investigation report (hereinafter “PS1”) as well as an assessment by the
Pennsylvania Sexual Offenders Assessment Board. In preparation for sentence, this Court
thoroughly reviewed the Sentencing Guidelines, as well as the PSI, a Sentencing Memo dated
September 27, 2019, the Pennsylvania Sexual Offender’s Assessment Board report, including all
mhitigating and aggravating factors, as well as the victim impact statement, and oral statements by
the Appellant and the Appellant’s parents, including several letters authored by extended family
members and friends. Additionally, this Court carefully considered the Appellant’s underlying
criminal conduct, manipulation, seriousness, and, frequency of the Appellant’s offenses, as well
as the particularized facts associated with the Appellant’s conduct, placing a minor at risk. This
Court stated: “you’ve taken a young woman, who, by everyone’s testimony, had mental health
issues and emotional issues, and you were able to basically target her, groom her, and abuse her.
What you did, and the power that you had, in your position, these vulnerable—All children. It’s
not just the one, It’s all. And she will be scarred [ . . . } for the rest of her life.” (N.T. January
14, 2020 p. 16-17). Therefore, articulating the following aggravating factors: “based upon the
Se Se nr ereerteneinn:
facts, the number of text messages, the length of period of time, and the actions that were
committed by you,” this Court sentenced in the aggravated range on three offenses’ for an
aggregate sentence of fifty four(54) to one hundred and eight (108) months in a state correctional
with six (6) years’ special probation.‘ Id. at 17.
Subsequently, on January 24, 2020 the Appellant filed a Post-Sentence Motion
challenging the weight and sufficiency of the evidence, evidentiary rulings, and discretionary
aspects of sentencing. The Appellant requested a reduced sentence, visitation with his child, and
bail pending appeal. This Court held a hearing on the Appellant’s Post-Sentence Motions on
March 10, 2020. Subsequently, this Court denied the Appellant’s Post- Sentence Motion on June
25, 2020, and the Appellant timely filed a Notice of Appeal to the Pennsylvania Superior Court.
DISCUSSION
1. Whether the trial court incorrectly denied Defendant’s Motion for 2 New
Trial/Judgement of Acquittal when presented with the following regarding the
weight of evidence and/or whether the jury’s determination is so contrary to the
evidence presented or the lack thereof, shocking the conscience, such as to warrant a
new trial as to the offense of Institutional Sexual Assault when there was no physical
or corroborative evidence of sexual activity, no digital evidence suggesting sexual
activity, and both Defendant and Co-Defendant denied said sexual activity?
2. Whether the trial court incorrectly denied Defendant’s Motion for a New
Trial/Judgement of Acquittal when presented with the following regarding the
weight of evidence and/or whether the jury’s determination is so contrary to the
evidence presented or the lack thereof, shocking the conscience, such as to warrant a
new trial as to the offense of Endangering Welfare of Children, finding a “course of
conduct,” when the Defendant repeatedly encouraged alleged victim to seek
psychiatric heip, repeatedly consulted with the alleged victim’s parents regarding
her mental health, took steps to check on the health and well-being of the alleged
victim, and the fact that although there were thousands of contacts between
Defendant and the alleged victim, none were shown to have placed her in danger, or
* Institutional Sexual Assault, 18 Pa. C, S. §3124,2; Endangering the Welfare of Children- Parent/Guardian, E8 Pa.
C.S, §4304(2)(2); and Corruption of Minors- Defendant age 18 or above, 18 Pa C.S. §6301(a)(1}iD.
® Relative to the offense of Furnish Liquor or Malt Beverage to a Minor, 18 Pa, C.S. §6320.1(a), this Court
sentenced the Appellant within the statutory maximum to one (1) year probation consecutive to Count L
were shown to have either established a duty of care or that a duty of care was
violated?
3. Whether the trial court incorrectly denied Defendant’s Motion for a New
Trial/Judgement of Acquittal when presented with the following regarding the
weight of evidence and/or whether the jury’s determination is so contrary to the
evidence presented or the lack thereof, shocking the conscience, such as to warrant a
new trial as to the offense of Corruption of Minors, finding a violation of a sexual
offense under the crimes code when there was no physical or corroborative evidence
of sexual activity, ne digital evidence suggesting sexual activity, and both Defendant |
and Co-Defendant denied sexual activity?
4, Whether the trial court incorrectly denied Defendant’s Motion for a New
Trial/Judgement of Acquittal when presented with the following regarding the
weight of evidence and/or whether the jury’s determination is so contrary to the
evidence presented or the lack thereof, shocking the conscience, such as to warrant a
new trial as to the offense of Furnishing Alcohol to a Minor, when there was no
evidence of the alleged victim being under the influence of alcohol or testimony as to
the effects of the purported alcohol on the alleged victim such that one could infer
her ingestion of an actual alcoholic substance?
The Appeilant’s claims one (1) — four (4) challenge the weight of the evidence and have
been consolidated herein, by this Court. The weight of the evidence supports the jury's verdict as
to all offenses charged, including the additional “course of conduct,” factors that impact offense
grading, See Commonwealth v. Sanders, 42 A.3d 325, 331 (Pa. Super. 2012)(quoting
Commonwealth v. Diggs, 949 A.2d 873, 880 (Pa. 2008)(“[A] trial court's denial of a post-
sentétice motion “based on a weight of the evidence claim is the least assailable of its rulings.”).
The determination of whether to grant a new trial because the verdict is against the weight of
the evidence rests with the discretion of the trial court and will not be disturbed unless the trial
court has abused its discretion. Commonwealth v. Pronkoskie, 445 A.2d 1203, 1206 (Pa.
1982). A claim that the evidence presented at trial was contradictory and unable to support the
verdict requires the grant of a new trial only when the verdict is so contrary to the evidence as to
shock one’s sense of justice. Commonwealth v. Sakgek, 522 A.2d 70, 72 (Pa. Super. 1987).
Moreover, the weight to be accorded conflicting evidence is exclusively for the fact finder,
whose findings will not be disturbed on appeal if they are supported by the record.
Commonwealth y, Zapata, 290 A.2d 114, 117 (Pa, 1972); See also Commonwealth y.
Hamilton, 546 A.2d 90, 95-96 (Pa. Super. 1988), allocator denied, 558 A.2d 531(1989)(holding that the scope of review for a claim that a verdict is apainst the weight of the
evidence is very narrow, especially where issues of credibility are concerned, it is not the
function of the appellate court to substitute its judgments based on a cold record for that of the
trial court); Commonwealth vy, Champney, 832 A.2d 402,408 (Pa. 2603)(the weight of the
evidence is exclusively for the finder of fact who is free to believe all, part, or none of the
evidence and to determine the credibility of the witnesses [...] an appellate court's role is not
to consider the underlying question of whether the verdict is against the weight of the evidence.
Rather, appellate review is limited to whether the trial court palpably abused its discretion in
ruling on the weight claim); Commonwealth y, Sanders, 42 A.3d 325, 331 (Pa. Super.
2012)(“A jury decision to credit certain evidence and reject other testimony is appropriate;
therefore, the trial court did not abuse its discretion in concluding that its sense of justice was not
shocked by the verdict.”).
Applying the above standards to the instant case, the Appellant’s guilty verdict does not
shock one’s sense of justice such that it is against the weight of the evidence. The record
supports the jury’s finding of guilt, including the additional “course of conduct” factor. In this
case, the Commonwealth presented five (5) witnesses, including the victim. At trial, the jury
heard detailed, and traumatizing testimony from QM the victim, who revealed an
inappropriate, manipulative, abusive, and intimate sexual relationship with the Appellant, and his
wife, Ruth A. Baggetia, her teacher and band instructor fueled by vulnerabilities and positions,
corroborated by twelve thousand (12,000) phone contacts via text or call over five (5) months,
and ultimately, matching tattoos.
iam
testified that during her sophomore year at Lakeland High School, in the spring of
2016, she assisted with the school’s production of “Annie” as a member of the lighting crew.
ionm
(Notes to Testimony, June 17, 2019 p. 28, 66). recalled knowing the Appellant as a
substitute teacher, who assisted with the play’s production. Id. at 29-30, 66. She testified that
during this time, her relationship with the Appellant developed. Id. at 31. She stated:
“Throughout the Annie play I started talking to Nick more outside of school usually through
Vichm
Snapchat.” Ed. at 31, 67. At the same time, MBMB, described a “hectic,” home life with her
Vichw
parents, who decided to divorce. Id, MMM testified that she communicated privately with the
Appellant through talking and texting on his cellphone and through Facebook messenger. Id, at
32, 70, Vit noted: “the more personal things that we talked about were usually through
Snapchat.” Id. at 33. Notwithstanding, Wika ‘adioated that the private texting increased in
frequency when the Appellant coaxed her into breaking- up with her boyfriend. Id. at 33-34, 42-
43, pie cad: “the day that we — that I broke up with Pete, I have been in contact with
[Nick] for pretty much that whole day. And he kind of walked me through breaking up with
him, kind of telling me that it was my chance to do it, and that, like, I shouldn’t stay with him.”
dd. at 33. The Appellant expressed that “nobody was going to be able to treat ea sc than
he would.” Id. at 43. .
By the play’s conclusion eine entitiet that she had dinner my the Appellant and his
wife, and while only sixteen (16) years old, the Appellant suggested that Vignn their wedding
photographer, among other things. Id, at 35-36, 74. Shortly thereafter, the Appellant and his
wife would randomly visi aad at her jobs. She stated: “I do know that they did visit me at
Vici
pretty much every job that { had.” Id. at 38. Indeed, foam recalled a time when the Appellant
appeared alone, and she showed the Appellant around her job site. Id. at 39. The Appellant
View's aos 3 ™
waited until shift concluded and invited her to his wife’s apartment. Upon arrival,
described that the Appellant’s wife appeared unaware and “surprised,” by ata < presence. Id.
Vichn
at 40. The Appellant continued to invite to his wife’s apartment, including occasions in
his wife’s absence since the Appellant ee with his parents. Eventually, the Appellant invited
Vichn Vigan
SHIR to the couple’s house. Id, at 38, 41. testified: “I mean, once I started seeing them
outside of school it was probably weekly that I was there or that we went to dinner ot that I saw
them outside school.” Id. at 41.
Vicim
At the same time, @IM recalled that the Appellant began to privately communicate with
her often. She noted that the Appellant privately communicated with her “pretty much around
e
the clock. It didn’t really matter what time of day that it was.” Id. at 42. From these
iki
communications, believed that the Appellant held “some sort of feelings towards fher],”
Vierm *
Id. at 43. QB explained that the Appellant admitted he discussed his “feelings” towards her
Victim
with 7 wife, her teacher and band instructor. The Appellant reiterated to {iM that his wife
recommended him and at" “act on those feelings so to kind of sweep them under the rug {...]
kind of kiss and get over it.” Id. at 43-44,
To that end, the Appellant began a sexual relationship wih a approximately two
(2) years. The sexual relationship initiated with “sexual” Snapchats from the Appellant, who
diveoted Aa to delete the chats. id at 67; (N.T. June 18, 2019 a.m. p. 6). ap testified
“he didn’t want anybody to know abolt what was going on in the Snapchats [. . . ] like anything
we talked about regarding anything sexual.” Id. at 6. She explained: “Nick was always prompt
about making sure that I didn’t save anything.” N.T. June 17, 2019 p. 68.
Vicrim
GMB testified that the relationship became physical in May 2016, when she arrived at
10
the Appellant’s wife’s apartment to find the Appellant alone. He began kissing her, pulling
down her pants and touching the outside of her vagina, Id. at 44-45, MiiiMexplaincd that the
kissing and touching started on the couch and then progressed to a spare bedroom. Id. at 45. At
the end of the evening, the Appellant’s wife returned to her apartment. QR explained: “onte,
I was there Ruth had kind of said that there was not to’be anything more than kissing, So when
that was happening Nick was kind of like, well, why should there be boundaries on emotions or
feelings [ ... ] why don’t you let me, [... ] make you feel bétter.” Id, at 45.
Subsequently, S33MM testified to at least ten (10) additional sexual incidences with the
Appellant, including digital penetration, performing oral sex on the Appellant, receiving oral sex
from the Appellant, and engaging in anal sex with the Appellant. Id. at 46-50, 78. She
described the first occasion when oral sex occurred. Silly testified: “I was sitting on one of the
couches and Nick was sitting on another couch [. . . ] and then he was kind of like, Why are you
sitting on that couch when you can come over and sit here with me? And then it was kind of,
like, you know, you shouldn’t be wearing pants [. . . ] that day he also touched me, and then I
did oral on him that day.” Id, at 47, Similarly, SHINN recalled that the Appellant pressured her
into having anal sex stating that “it was something that Ruth wouldn’t do with him and that he
had never done that with anybody and that I was his last chance [...] it was a first that he
wanted to have with me; and I believed that at the time.” Id. at 49. Additionally, Gi recalled
that the Appellant’s wife also engaged in sexual activity with her, wherein, the Appellant’s wife
and Joella both performed oral sex on the Appellant. @MIB stated: “I had stopped there to visit
before I was going to hang out with friends [. . . ] Ruth and Nick were supposed to go to dinner
with Ruth’s parents. And when I got there, she had told me that she told Nick that if he went to
her parents’ house for that dinner that we would both give him oral.” Id, at 50. WHER testified
il
83. wim explained that she would regularly sleep at the Appellant’s house overnight. Id. at
51, 75. She stated: “I wouldn't be able to remember how many times, It was often. Like, if I
was seeing them, usually I ended up sleeping there quite a bit [... ] Pusuatly would sleep in their
bed with them [... ] there were a few times where I slept in the middle between the two of
them.” Id. at 58. Wiction explained that on some occasions, the Appellant groped her on the
outside of her clothes and underneath her clothes, all over her stomach, butt, and in between her
legs, while she slept next to him and his wife. Id. at 58-59. Vic discussed moving into
the couple’s house. Id, at 57 . She recalled other occasions wherein the Appellant’s wife would
be downstairs while wal ood marijuana with the Appellant upstairs. Id. at 59, wa
noted several occasions when the Appellant provided her with wine or liquor and weed. Id. The
Appellant also provided her with a vibrator that he utilized oe. she came to his house.
Id. at 60. She testified that the vibrator was kept in the Appellant’s house “upstaits in one of the
bathroom drawers.” Id. at 60.
Finally, to solidify and symbolize the intimate and sexual relationship that transpired, the
couple and a ined matching wrist tattoos. Id. at 54-57. She described previously
tesearching a particular tattoo with the Appellant and the Appellant’s wife, and then traveling to
Electric City Tattoo, whereupon they obtained a tattoo with three birds on a branch, Id. at 57,
Vidnin | a
As result of SEER disclosures, Detective Michelle Mancuso, employed by the
ane County District Attorney’s Special Victims Unit since 2007, conducted interviews
mM Vichm
with Vege She testified that $M consistently provided the same information during each
imi
interview, and nate reported additional information regarding anal sex with the Appellant
Vian
as well as a sex toy that the Appellant gifted to WB and “had used on her.” (N.T. June 18,
12
dictten
2019 a.m. p. 44-45, 83, 102). Detective Mancuso testified that and the Appellant
frequently communicated via text or Snapchat, Id, at 54, 56.
The Commonwealth also produced evidence that Wit tended Lakeland High School
through her sophomore year, during which the Appellant was employed as a band and drama
volunteer. Id. at 19-20, Lakeland School District superintendent, William King, testified that as
a volunteer, the district required the Appellant to “go through the same process as regularly hired
paid employees.” Id. at 20. Superintendent King further explained: “all employees and
volunteers are required to get a child abuse background check, which is Act 151. They ‘re
required to get a state police background check, which is Act 34, and they’ re required to have
FBI fingerprint checks { .. . ] whether you’re an employee hired and paid or you’re a volunteer [ |
..+ ] they all have to — they’re all required to get the background checks,” Id. at 21-22.
Additionally, Principal of Fell Charter Elementary School, Mary Jo Walsh testified that she
personally hired the Appellant as a full-time learning support teacher in the special education
department. Id. at 26-27, 30. She echoed Superintendent King’s testimony, and explained that
prior to hiring the Appellant, the school required the Appellant undergo background checks and
complete a child abuse history verification. Id. She confirmed that the Appellant completed
training for mandated reporters regarding child abuse and neglect. Id. at 27, 33-34,
Hypothetically, Ms. Walsh noted that if she were to become aware of a teacher having any type
of inappropriate sexual conduct with a student, she would “absolutely” report the abuse. Id. at
39. Similarly, Detective Mancuso testified that anyone under the age of eighteen (18) is
considered a child. Id. at 43,
Moreover, the Commonwealth also produced extensive evidence corroborating the
Victim
magnitude of communications between the Appellant and Qi. Detective Mancuso testified
13
that she obtained @3—8 cellphone number, the Appellant’s cellphone number, and the
Appellant’s wife’s cellphone number. Id. at 46. Detective Mancuso confirmed the authenticity
through the respective cellphone providers. Id. at 47-48, 50-53. She related that she obtained a
“voluminous” amount of &@MBB phone records for the five (5) month period of June 11, 2016
through November 12, 2016. Id, at 48. Although unable to retrieve the content of the
communications, Detective Mancuso testified that she employed a software program named Pen-
Link, which parsed out times, dates, and frequency of communications. Id. at 53-54, 87.
Accordingly, Detective Tom Davis employed by the Lackawanna County District
Attorney’s Office for approximately twenty (20) years and certified in the use of Pen-Link
software, testified that he utilized SMMMIB phone records to create a “frequency hot number list.”
Id. at 106. Detective Davis explained that “frequency” connotates incoming and outgoing calls
as well as text messages. Id. He further explained how he parsed out the “frequency” into time
of day, day of week, and incoming or outgoing calls. Id, at 117, 119. Detective Davis noted an
inability to examine any content or relevance of the contacts, but just “there was a message sent
or received.” (N.T. June 18, 2019 p.m. p. 9,12).
Detective Davis testified that the frequency between the Appellant and SB for the
period of June 11, 2016, through November 11, 2016 totaled 12,122 contacts either voice or text.
(N.T. June 18, 2019 a.m. p. 110-111,115). Detective Davis noted that a contact occurred every
day of the week with the most contact occurring on Saturdays and at most frequently at night, “8,
9, 10 p.m.” Id. at 117-118. He stated: “there are some during every hour of the day. You're
starting on the left side, which would be midnight, and goes from one, two, three, four, five, 6
am.” Id.
14
Notwithstanding, the Commonwealth’s inability to retrieve the content of the
communications, the Appellant provided Detective Mancuso with approximately 2500 pages of
text message content between Wen and the Appellant, agin and the Appellant’s wife as
well as text message content between the Appellant and the current Lakeland High School band
director, Bryan Brophy. Id. at 59, 61-62, 78. The text message content reflected a period.
beginning in 2017 through March 19, 2018, the day before BS osure. Id. at 59,
Detective Mancuso explained the Appellant’s ability to extract his own cell-phone data versus a
cell-phone provider's retention of data. Id, at 60. She explained nave had no text
messages on her phone and at the direction of the Appellant, had deleted all the text messages
between her and the Appellant and the Appellant's wife. Id. at 79. She confirmed the accuracy
of the content provided by the Appellant, given her review of the conversations that occurred and
knowing the characteristics of everyone’s life, which she indicated was consistent with en:
testimony. Id, at 63, 99, 101. She also noted that the Appellant invited mein his house on
several occasions, which corroborated a closures Id. at 66. The Appellant also told
a love you” and recollected “I still see the sixth grader at my school when I student
taught.” Id. at 77, 98. Ultimately, Detective Mancuso opined: “there were not any mentoring
texts that I had seen, Just the contrary. He was very derogatory towards her, very dismissive
towards her, at some point calling her pathetic.” 1d, at 66. To that end, the Commonwealth
published a series of text message content reviewed by Detective Mancuso. For example,
Detective Mancuso referenced text messages that the Appellant sent ro WN hich stated:
No, this is the thing you do. I’ve notice any time someone has shit
going on you need to be involved, like the new gitl, like this. Do
your own shit, kid, because no one else gives a fuck about you but
you and us [ ... ] I’m telling you the truth and you don’t want to hear
it because you love to fuck yourself and worry about everyone else
[. .. ] Don’t want to hear it. You have gotten so close to me in two
15
years, then you're just going to stand around and be sad and not say
what’s going on, like I’m going to beg you. Get the fuck out of here. t
You talk to Josephine because she asked you to live with her. Go tell
her all your shit. Let her help you out.’
id. at 69, 75, 92, 94,97.
Detective Mancuso corroborated the Appellant’s decision to obtain matching tattoos. She
Viet
referenced a text conversation between the Appellant andi wherein the Appellant sends a
Cae
photograph of the tattoo to , indicating that he likes it best and where the tattoo will be
placed, on their wrists. Id. at 73, 96-97.
Moreover, Detective Mancuso referenced a text conversation between the Appellant and
Mr. Brophy, which occurred on July 17, 2018, wherein the Appellant stated: “even if 1 did do
shit with her, which we all know 1 didn’t, what motherfucker has the right to make a law saying
it was wrong [ . . . ] they say the age of consent is 16, but for me it’s not because of my
profession.” Id. at 65, 89,91.
ictin S .
Lastly, the Appellant’s wife, Ruth ara and teacher and band director did
itl
not dispute that she initiated communication with MMB through her husband, the Appellant.
(N.T, June 18, 2019 p.m. p. 39, 71). Mrs. Baggetta testified: “I was talking to her through my
husband because I knew he was speaking to her and then yes, I did speak to her.” Fd.
Throughout the entirety of Mrs. Baggetta’s lengthy testimony, she characterized each response
with “we,” and “us’® indicating that Mrs. Baggetta and the Appellant held mutual conversations
7 The Appellant admitted he sent such text messages verbatim. (N.T. June 19, 2019 p, 28-29).
* For example, Mrs. Baggetta testified to generalized statements such as: “Yes, we did, We talked to her parents
about it... ] we did{...] Yes, because it came out to us that she was having lots of other issues with herself [. . .
] she would tell us about how she felt about herself and she was not — she did not like herself and she -- we became
very concerned [...] we told her parents so that they would know [... J it was much more than we could handle
[...] we wanted her to keep telling us so that we could tell her mother [...] we found out that she was cutting
and she wouldn’t show us but she had told us [.. . ] later when she was at our house and she had started doing it
again and we told her she needed to start talking to her therapist {.. . ] we had told her mother so we didn’t think
we needed to tell anybody else [. . .] we would just ask her about what her hobbies were and she told us she liked
photography so then we asked her if she had a portfolio and she showed us some stuff on Facebook and we asked
16
yichn
and made mutual decisions regarding their interactions, manipulation, and abuse of GMB, Id. at
38-48,54-56-66, 80-81. In fact, Mrs. Baggetta shifted responsibility, feigning ignorance of all
mandated reporter policy, and testified that her and the Appellant did not refer inilate ideas to
ChildLine or guidance counselors because “we told her parents.” Id, at 80.
Mrs. Baggetta also corroborated that the Appellant visite ; oa her employment,
without her, and afterwards had invited Samy ts their residence to sleep over. Id. at 52, 72-73.
On another occasion, Mrs. Baggetta testified that ean Nayed at their residence, while the
couple vacationed for their honeymoon, Id. at 54, Further, Mrs. Baggetta testified that they all]
stayed together overnight at the residence in November 2016 and “a few more times,”
approximately “a dozen.” Id. at 56, 59, 62, 73. Importantly, Mrs. Baggetta did not dispute that
the Appellant volunteered at Lakeland High School, especially in the production of “Annie,” and
interacted with Weer during that production. Id. at 69-70. Nor did Mrs. Baggetta dispute that
“constant” communication “around the clock or all the time,” occurred among them, and would
be atypical for other students. Id. at 71-72. Finally, Mrs, Baggetta did not dispute that they all
received “matching tattoos.” Id. at 74.
Lastly, the Appellant testified that he substituted day- to- day at Lakeland High School in
2012 and long-term in 2014 until 2016. Id. at 114-115. He admitted to “always,” being
involved at Lakeland, despite his employment at Fell Charter. Id, at 118. Specifically, the
Appellant testified that he assisted with the drama club as a pseudo “stage manager,” for the
Vien
production of “Annie,” Id. at 119. At this time, the Appellant testified he met Si,’ however
her to take our engagement pictures [ . . .] we had offered to buy that lens for her to take our pictures [. . . ] we were
close with her because we had been talking to her making sure she was okay so she helped us to move into the house
when we were moving ail of our stuff... } when she stayed over we would be watching TV, we would play
games, we would feed her dinner [. . . } we saw her again in February.” (N.T. June 18, 2019 p.m. p. 39, 40, 42, 43,
44, 45, 47, 54, 56-61, 63-66, 80-81),
* Contrastingly, throughout the Appellant’s testimony, the Appellant testified in generalized statements of “1.” For
example, “I was very surprised because I had known her so little so it was kind of strange for someone that I had
17
the Appellant admitted he did “see” her before as a substitute teacher but did not “know” her.
~
\ nv \ wl
Id. at 119-120. The Appellant shifted responsibility on and testified that initiated
contact by untying his shoe to be funny. Id. at 120. He testified that their communications
increased at the conclusion of “Annie,” via text messages “non-stop,” and at the direction of
, who created his Snapchat. Id. at 122-124, 126, 130. Although, he conceded that he often
instructed Wa tn text messages to “check her Snap,” (N.T, June 19, Z019 p, 8).
The Appellant also testified that he visited IMO voverat times at her employment. Id.
at 129. On one occasion, the Appellant testified that he confronted 2 mane at
JCPenney’s for “the way he had looked at her and some of the things that he had said to her.”
Id, at 144. The Appellant testified that of his own accord, he went to JCPenney’s and pretended
Vi in'¢
to be GMB brother, He stated: “I told the manager if you make my sister feel uncomfortable
then the next time that I come back it’s going to be with the police.” Id. at 144-145.
Vin
He also testified to occasions where @HEEB “stayed,” at his residence “several times,” and
my \ 1 ob mM
occasions where he drove WA around, The Appellant admitted he texted : “You should
visit today, Shh.” Ed. at 131, 133,142-143; N.T. June 19, 2019 p. 16-17, 27. The Appellant
Vidaam
corroborated that he employed @ito photograph his engagement as well as stay at his
residence during his honeymoon, and help move into his new residence. Id. at 138-141. He
rans Vicon
testified that he often spoke negatively about father, and agreed he commented to SRR
that: “Doug Leader [ . . . ] only cares about himself and having a place to stick his dick.” (N.T,
LAM
June 19, 2019 p. 29-30). Finally, the Appellant testified nated initiated the “matching
very little contact with to just begin opening up {.. . ] J was telling her that she was struggling with self-image
issues [...] I was very concerned about some of the stuff that she was saying [...] it finally got to the point
where it was way too much for me to handle [.. . ] I tofd her that I would always be there for her, she could always
Open up to me and I would always be willing to listen to her [.. . ] it was just wearing on rie emotionally te the
point where I wasn’t sleeping [ . .. } I would try to reach out because those were the days that I was most concerned
_{..-] I would mostly start conversations if I had not heard from her ail day just to check in[...] I was very upset
for her [.., ] we ended the night civilly, but I felt like there was no chance at having the relationship that 1 believed
we could at one point.” (N.T. June 18, 2019 p.m. p. 121-124, 127-128, 130, 141, 145, 147).
18
tattoos,” without her parents’ knowledge. Id. at 151. Later, on cross-examination, the Appellant
conceded that he planned the tattoo, and that he sent the photograph of the “matching tattoo,”
indicating that he “liked it best.” (N.T. June 19, 2019 p. 34-35). The Appellant did not dispute
Vichm
that he characterized his interactions with Ql as “our relationship” nor did he dispute that he
“looks out for the problem students,” and that he “loved” oan -b. June 19, 2019 p. 5-7,
36). He acknowledged prior experience with ChildLine and child abuse trainings that
discouraged private interactions with students as well as private communications with students.
Id, at 12, 36. He admitted that a teacher should not be alone with a student. Id. Also, the
Appellant testified that he did not contact Lakeland School District, or Commonwealth
Vichm
Connections, or any administrative staff to voice his concerns about MMM. Id, 18-19. The
Appellant also did not dispute that approximately 12,000 frequency contacts(equals 80 phone
yi an Nlicnm
contacts per day) occurred with , anid that he initiated innumerable visits with (il and a
dozen overnights, even showering at his residence. Id. at 21, 24-25, 39.
Nevertheless, the Appellant challenges the weight of the evidence by arguing that there is
no physical or corroborative evidence of sexual activity regarding Count I, Intercourse/Sexual
connet _ Student, 18 Pa. C.S. §3124.2 (a.2)(1). Upon review, this Court found the victims]
testimony to be credible, and reliable enough for the jury to return a verdict of guilty on
CountL As within its province, the jury believed that the Appellant and WNC sae in oral
sex, digital penetration, anal sex, and utilized a vibrator on = as simultaneous oral
iam
sex on his penis with the Appellant’s wife, during a time in which was a student and the
Appellant volunteered at Lakeland. The jury heard Detectives Mancuso and Davis testify about
Vidi
the frequency of contact between the Appellant and Sagi, Ee 12,000 contacts within
iam
a five (5) month period, In fact, the Appellant testified that knowing @NB was only sixteen
19
V chy Vicnim
(16), he told he loved her, he visited at work, drove her around, invited her to stay
overnight at his residence, invited her to “hang” at his residence on numerous occasions. The
Appellant isolated Wagan om her family and coaxed her into a sexual relationship, reiterating to
Vict
@M that no one else cared about her. The jury was well aware of the unusual circumstances
and inappropriate grooming behaviors initiated towards a minor student, i.e. ie
Appellant admitted to purchasing a camera lens as a gift, dinners, invitations to “hang out,”
approximately a dozen or more sleepovers, obtaining matching tattoos, visits to oo ob,
confrontations with her manager, exchanging Christmas gifts vith a The jurors listened to
the Appellant tell them that he did not notify administration, nor refer wa the guidance
counselor despite being concerned about waa S mental health or suicidal ideations throughout a
two (2) year period. While the Appellant’s wife testified that the couple voiced their concerns
about St es parents, the Appellant testified to a soured and strained relationship between
him ni ee ts 10 (N.T. June 18, 2019 p.m. p. 142,146-148). The Appellant engaged in
derogatory commentary abou WAS parents to the point siicec etal seve that in the
Appellant’s words: “the only two people that were ever there for her were my wife and myself.”
(N.T. June 19, 2019 p. 29-31, 43-44).
A such, the jury was well within its province to decide how much weight to give all
the evidence presented at trial. Conflicts between the testimonies of the victim and the Appellant
are for the jury to resolve and not for the trial court to undertake. A new trial should not be
granted because of a mere conflict in the testimony. Commonwealth v Widmer, 744 A.2d 745,
751-52 (Pa. 2000). The jury weighed the evidence presented, evaluated the testimony of the
victim and the witnesses, and made a determination thereupon. It was entitled to believe the
10 The Appellant explained tha Ne vould have arguments with her mother about him. He stated: “Mom did not
wish to talk to me and she was basically condemning me.” (N.T. June 19, 2019 p. 43). The Appellant also testified
that he banned SM from his residence after arguing With MMB father. Id. at 26.
Viva Vicin'r
20
victim and to find the Appellant incredible. Although the Appellant’s version of events denies
sexual activity, the jury found wa” and her testimony credible and discredited that of the
Appellant’s and his wife. While the Appetlant denied a sexual relationship with ans his
iam
testimony does not require the conclusion that the Appellant nee did not engage in oral
sex, digital penetration, anal sex, use of a vibrator, or simultaneous oral sex on his penis with his
wife. The frequency of private contact, the content of the text messages, and the numerous
occasions in which the Appellant maw” were intimately together and intimately together in
the Appellant’s wife presence as well as the Appellant’s wife’s blatant motive and biased
testimony to protect her husband, led the jury to believe otherwise,
Finally, the lack of corroborating physical evidence does not undermine Walia” so
testimony, found to be credible by the jury. i ied in detail to at least ten (10) additional
sexual incidences with the Appellant, including digital penetration, performing oral sex on the
Appellant, receiving oral sex from the Appellant, and engaging in anal sex with the Appellant,
(N.T. June 17, 2019 p.m. p. 46-50, 78). She described the first occasion when oral sex
occurred, Me. aa “T was sitting on one of the couches and Nick was sitting on another
couch [... ] and then he was kind of like, Why are you sitting on that couch when you can come
over and sit here with me? And then it was kind of, like, you know, you shouldn’t be wearing
pants [.. -] that day he also touched me, and then I did oral on him that day.” Id. at 47.
Similarly, ee oi that the Appeliant pressured her into having anal sex stating that “it was
something that Ruth wouldn’t do with him and that he had never done that with anybody and that
I was his last chance [...] it was a vod “hin he wanted to have with me; and I believed that at
the time.” Id. at 49. Additionally, Na ed that the eee wife also engaged in
sexual activity with her, wherein, the Appeilant’s wife and both performed oral sex on the
21
‘chm
Appellant. stated: “I had stopped there to visit before I was going to hang out with friends
[... ] Ruth and Nick were supposed to go to dinner with Ruth’s parents. And when I got there,
she had told me that she told Nick that if he went to her parents’ house for that dinner that we
Viehm
would both give him oral.” Id. at 50. Silillibtestified that she and the Appellant’s wife
simultaneously performed oral sex on the Appellant. Id. at 51, 83. ie seined that she
would regularly sleep at the Appellant’s house ovemight. Id. at 51,75. She stated: “I wouldn’t
be able to remember how many times, It was often, Like, if I was seeing them, usually I ended
up sleeping there quite a bit [. .. ] I usually would sleep in their bed with them { ... ] there were
a few times where I slept in the middle between the two of them.” Id. at 58. wr also
explained that on some occasions, the Appellant groped her on the outside of her clothes and
underneath her clothes, all over her Some butt, and in between her legs, while she slept next
to him and his wife. Id. at 58-59, icin even discussed moving into the couple’s house. Id. at
57. She recalled other occasions wherein the Appellant’s wife would be downstairs aie
smoked marijuana with the Appellant upstairs, Id, at 59. a several occasions when
the Appellant provided her with wine or liquor and weed. Id. The Appellant also provided her
Vickm
with a vibrator that he utilized on WH when she came to his house. Id. at 60. She testified
that the vibrator was kept in the Appellant’s house “upstairs in one of the bathroom drawets.”
Id. at 60.
Indeed, Pennsylvania courts have “long-recognized that the uncorroborated testimony of
a sexual assault victim, if believed by the trier of fact, is sufficient to convict a defendant, despite
contrary evidence from defense witnesses.” Commonwealth y. Charlton, 902 A.2d 554, 562
(Pa. Super. 2006). The jury wed ee testimony as truthful and did not believe the
Appellant’s claim that the allegations against the Appellant and the Appellant's wife were
22
NRTA
fabricated. See Commonwealth v. Small, 741 A.2d 666, 672 (Pa. 1999)}(Notably, the jury as
the fact finder “is free to believe all, part or none of the evidence and to determine the credibility
of [the] witnesses.”’). Also, medical evidence is not required if the fact finder believes the victim.
Commonwealth y. Jette, 818 A.2d 533, 534 (Pa. Super. 2003) citing Commonwealth v,
Owens, 549 A.2d 129, 133 (Pa. Super. 1994); Commonwealth y. Castelhun, 889 A.2d 1228,
1232 (Pa. Super, 2005).
This Court did not abuse its discretion by denying the Appellant’s Post-Sentence Motion
for an acquittal or for a new trial based on the weight of the evidence regarding Count I.
Similarly, the Appellant challenges the weight of the evidence regarding Count II-
Endangering the Welfare of Children- Parent/Guardian, 18 Pa. C.S. § 4034(a)(1), by arguing
that the Appellant’s actions were proactive and did not place in danger or violate a duty of
care as no duty of care existed. This Court is unconvinced by the Appellant’s argument, which is
Vienm
based upon the Appeilant’s testimony that he directed (EB to seek counseling. This is outside
the purview of this Court as the jury is free to believe all, part, or none of the evidence and to
determine the credibility of the witnesses. Here, the fact finder was free to believe the testimony
Vighim
of SEP, who recalled that the Appellant began to privately communicate with her often. She
noted that the Appellant privately communicated with her “pretty much around the clock. It
didn’t really matter what time of day that it was.” (N.T. June 17, 2019 p.m. p. 42). From these
communications, WO believed that the Appellant held “some sort of feelings towards [her].”
Id, at 43. A snot that the Appellant admitted he discussed his “feelings” towards her
with his wife, her teacher and band instructor. The Appellant reiterated to ae his wife
recommended him and pun on those feelings so to kind of sweep them under the rug [. . .]
Vik
kind of kiss and get over it.” Id. at 43-44. Subsequently, GNI testified that she began a sexual
23
relationship with the Appellant for approximately two (2) years. The sexual relationship initiated
Wich
with “sexual” Snapchats from the Appellant, who directed aM to delete the chats. Id. at 67;
‘N. T. June 18, 2019 a.m. p. 6). Sita tie: “he didn’t want anybody to know about what
was going on in the Snapchats [ . . . ] like anything we talked about regarding anything sex
Id. at 6. She explained: “Nick was always prompt about making sure that I didn’t save
anything.” N.T. June 17, 2019 p. 68. ois ed that the relationship became physical in
May 2016, when she arrived at the Appellant’s wife’s apartment to find the Appellant alone. He
began kissing her, pulling down her pants and touching the outside of her vagina. Id. at 44-45.
Wan
GBB explained that the kissing and touching started on the couch and then progressed to a spare
bedroom. Id. at 45. explained “once, I was there Ruth had kind of said that there was not
to be anything more than kissing. So when that was happening Nick was kind of like, well, why
should there be boundaries on emotions or feelings [...] why don’t you let me, [...] make
you feel better.” Id. at 45. Subsequently WON stifed to at least ten (10) additional sexual
incidences with the Appellant, including performing oral sex on the Appellant, receiving oral sex
from the Appellant, and engaging in anal Sex with the Appellant as well as use of a vibrator on
her. Id. at 46-50, 78. On one occasion, stated: “I had stopped there to visit before I was
going to hang out with friends [...} Ruth and Nick were supposed to go to dinner with Ruth’s
parents. And when I got there, she had toid me that she told Nick that if he went to her parents’
house for that dinner that we would both give him oral.” Id. at 50 are that she and
the Appellant simultaneously performed oral sex on the Appeliant’s husband. Id. at 51, 83.
gay ‘either explained she saw the Appellant weekly, and that she would regularly sleep
at the Appellant’s house overnight. The Appellant provided her access to “hang” in the house
\
ofien and initiated visits. The Appellant even allowed WY shower at the house. Id. at 41,
24
chin
51, 75. Qa stated: “I wouldn’t be able tc remember how many times. It was often. Like, ifI
was seeing them, usually I ended up sleeping there quite a bit [. . . } I usually would sleep in their
bed with them [...] there were a few times where I slept in the middle between the two of
them.” Id, at 58. also explained that on some occasions, the Appellant's groped her on
the outside of her clothes and underneath her clothes, ail over her stomach, butt, and in between
her legs, while she slept next to him and his wife. Id. at 58-59.
Comparingly, the j jurors listened to the Appellant tell them that he did not notify
gs yiciin Victi's
administration, nor refer to the guidance counselor despite being concerned about
mental health or suicidal ideations throughout a two (2) year period. (N.T. June 19, 2019 p. 18-
Vien
19). Moreover, while the Appellant threatened to cease communications with (MMB if she did
VicAM
not seek therapy and testified to ensuring @—B had _ contact” with her therapist, at no
time did the Appellant testify that he notified i S coania of suicidal ideations, cutting, or
the “dark things” es saying about herself to him. (N.T. June 18, 2019 p.m. p. 124,127-
428). Instead, the Appellant's testimony reveals that he withheld this information and spoke
derogatively of AMS ity to her. In addition, the jury implicitly found that the Appellant
provided control and supervision ore assuming such a status relationship esti’, as to
impose a duty to act. The Appellant admitted that aM a “hang” at his residence, that she
stayed overnight on several occasions, that he drove (MB around, provided her dinner, made
plans to visit colleges together, and that he even confronted her manager for alleged
inappropriate conduct. They exchanged ch gifts and obtained matching tattoos. The
(Ws
Appellant initiated approximately a dozen of (EIN visits to his house. Id. at 138, 143-146;
N.T. June 19, 2019 p. 21,24, 27,34-35). The Appellant admitted he texted Was “You should
25
Vichy
visit today. Shh.” (N.T. June 19, 2019. p. 26-27). The Appellant also admitted he texted qi:
“I love you,” and then incredulously explained, “I love all of my students.” Id. at 36-37.
The Appellant, and the Appellant’s wife testified to providing on with a home
| environment, responsible for the welfare o ia . Therefore, the Appellant held a duty to act
and did more than merely forego notifying administration or a guidance counselor of igi ;
suicidal ideations. Indeed, the Commonwealth presented exhaustive evidence that the Appellant
encouraged an intimate and sexual relationship, possessing awareness ofa ung age,
personal vulnerabilities, and family separation. The Appellant befriended fon and exploited
the teacher/student relationship he had win wa especially any trust and competence Yooper ns
family ns bestowed upon the Appellant and his wife due to their positions, He privately
communicated with Wisi equently and inappropriately, instructing her to delete conversations,
admonished her decisions, blurring boundaries between a teacher and student by coaxing aaah”
into a sexual relationship, and shifting blame on his wife, At times, the Appellant would involve
his wife, and his wife would knowingly participate. On other occasions the Appellant concealed
his “visits” or “hangs” with , arriving at her place of employment alone or initiating visits
‘chm i)
and telling to “shh,” Most egregiously, the Appellant gifted with a vibrator and then
kept the vibrator located in the bathroom at his residence. The Appellant and his wife permitted
unrestricted access to their personal life and home, separate from school activities, family, or
peers. In fact, the “pray initially raniuttea Wa break-up with her boyfriend, and then
perpetuated the notion naar could only rely on the Appellant. (Notes to Testimony, June
17, 2019 p. 33-34, 42-43). The Appellant expressed that “nobody was going to be able to treat
[Joelia] better than he would.” Id. at 43. Oddly, the Appellant confronted i KS na ger
accusing him of inappropriate conduct, dishonestly playing the role of her “brother,” and
26
threatening police intervention when, the Appellant was engaged in even worse sexual behavior
— Vichm Vian
with ben" Obsessively, when the Appellant did not have contact with 4B, he would initiate
contact for a response and/or berate her until he received the reaction he sought, isolation from
others and reliance on the Appellant. Ultimately, the Appellant failed to take protective action,
instead he fostered opportunities for sexual activity to occur within his home, and during
overnight stays, including in the presence of his wife. He knowingly placed in
circumstances where she would be alone with him on several occasions, or in circumstances
icin
where despite his wife’s presence, he knew and ke knew that the Appellant’s wife would
Vichy (
conceal the occurrences of sexual activity. The Appellant manipulated relationship with
\ichyn
his wife to the point that SMB knew she could not rely on the Appellant’s wife to protect her
from the abuse or to notify law enforcement. The Appellant’s wife held an apparent motive to
keep her marriage intact, as well as her teaching position and reputation.
The jury’s verdict and finding ofa course of conduct as to Count II was clearly not
against the weight of the evidence, especially considering the inherent bias woven throughout the
Appellant’s wife’s testimony.
This Court did not abuse its discretion by denying the Appellant’s Post~Sentence Motion
for an acquittal or for a new trial based on the weight of the evidence regarding Count IL.
The Appellant’s challenge to the weight of the evidence regarding Count IN-Corruption
of Minors -Defendant age 18 or above, 18 Pa C.S, §6301(a)(1)(ii), also lacks merit, despite no
physical corroborative evidence as the Appellant alleges. Upon review, this Court found the
testimony oman to be credible and reliable enough for the jury to return a verdict of guilty and
a finding of a course of conduct. Ma ed with significant specificity concerning the
sexual encounters with the Appellant occurring over two (2) years. As previously cited above,
27
\achm
the uncorroborated testimony of if believed by the trier of fact is sufficient to support a
conviction of a sexual offense. See Commonwealth y. Bishop, 742 A.2d 178, 189 (Pa. Super.
1999); Commonwealth v. Davis, 650 A.2d 452, 455, 477 (Pa. Super. 1994)(uncorroborated
testimony of sexual assault victim, if believed by the trier of fact, is sufficient to support
convictions even if the defense presents countervailing evidence); Commonwealth v, Trimble,
615 A.2d 48, 50 (Pa. Super. 1992) (testimony of child victim alone sufficient to support
conviction for sex offenses). Also, medical evidence is not required if the fact finder believes the
victim. Commonwealth vy. Jette, 818 A.2d 533, 534 (Pa. Super. 2003) citing Commonwealth
¥. Owens, 549 A.2d 129, 133 (Pa, Super. 1994); Commonwealth v. Castelhun, 889 A.2d
1228, 1232 (Pa. Super. 2005).
Additionally, the definition of the corruption of minors, includes, “[actions that] would
offend the common sense of the community and the sense of decency, propriety and morality,
which most people entertain.” Commonwealth y. Leatherby, 116 A.3d 73, 82 (Pa. Super.
2015). Pennsylvania courts have determined that acts of sexual abuse fall under this definition of
actions that would offend “the sense of decency, propriety and morality, which most people
entertain.” Id.Vicnm
In the instant case, (MP established that the Appellant initially encouraged her to act on
vo. , ,
urges and feelings. stated: “he had told me [. . . ] that at some point that we should kind of
act on those feelings [ . . . ] that we should just kind of kiss and get over it.” (N.T. June 17,
2019 p. 44). She noted that the Appellant privately communicated with her “pretty much around
the clock. It didn’t really matter what time of day that it was.” Id. at 42. From these
Vichm
communications, Qi believed that the Appellant held “some sort of feelings towards {her'.”
Vict
id. at 43. Thereafter, testified to at least ten (10) additional sexual incidences with the
28
Appellant, including performing oral sex on the Appellant, digital penetration, receiving oral sex
from the Appellant, and engaging in anal sex with the Appellant. Id, at 46-50, 78. She
| described the first occasion when oral sex occurred. testified: “I was sitting on one of the
couches and Nick was sitting on another couch [ . . . ] and then he was kind of like, Why are you
sitting on that couch when you can come over and sit here with me? And then it was kind of,
like, you know, you shouldn’t be wearing pants [... ] that day he also touched me, and then I
did oral on him that day.” Id, at 47. Similarly, ae" ted that the Appeltant pressured her
into having anal sex stating that “it was something that Ruth wouldn't do with him and that he
had never done that with anybody and that I was his last chance [... ] it was a first that he
wanted to have with me; and I believed that at the time.” Id. at 49. Additionetly Wa scaled
that the Appellant’s wife also engaged in sexual activity van her, wherein, the Appellant’s wife
and' Woh performed oral sex on the Appellant. Denes: “I had stopped there to visit
before I was going to hang out with friends [. . . ] Ruth and Nick were supposed to go to dinner
with Ruth’s parents. And when I got there, she had told me that she told Nick that if he went to
her parents’ house for that dinner that we would both give him oral.” Id. at 50. Via" sed
that she and the Appellant’s wife simultaneously performed oral sex on the Appellant. Id. at 51,
83. ua explained that she would regularly sleep at the Appellant’s house overnight. Id. at
51, 75. She stated: “I wouldn’t be able to remember how many times. It was often. Like, if I
was seeing them, usually I ended up sleeping there quite a bit [. . . ] Lusually would sleep in their
bed with them [... ] there were a few times where I slept in the middle between the two of
them.” Id. at 58. Wagan also explained that on some occasions, the Appellant groped her on the
outside of her clothes and underneath her clothes, all over her stomach, butt, and in between her
ich"
legs, while she slept next to him and his wife. Id. at 58-59. pane even discussed moving into
29
the couple’s house. Id. at 57. She recalled other occasions wherein the Appellant’s wife would
yw
be downstairs while smoked marijuana with the Appellant upstairs. Id, at 59. Joefla
noted several occasions when the Appellant provided her with wine or liquor and weed. Id. The
Appellant also provided her with a vibrator that he utilized on Joella when she came to his house.
Id. at 60. She testified that the vibrator was kept in the Appellant’s house “upstairs in one of the
bathroom drawers.” Id, at 60. The Appellant admitted that he cote’ love you,” and
instructed her when to “check her Snap.” The Appellant admitted to over 12,000 contacts with
Me ave (5) month period and revealed that he frequently initiated contact and often
\
invited QM to his residence sometimes with his wife’s knowledge and sometimes when he was
A
alone. Geip testified that the Appellant instructed her to delete any contact of a sexual nature
Vicnin
either message or Snap, wherein complied and was unable to provide any content to the
Commonwealth. She testified that the Appellant would know if she saved a Snap and he was
prompt about making sure that content became deleted.
The Appellant provided a parallel timeline and account of events, yet denies ny sexual
ihn
activity, and this does not necessitate a finding of not guilty. The jury chose to credit GE
testimony and her testimony alone establishes a corruption of minors conviction. It is clear that
nM
the Appellant’s actions encouraged , a sixteen (16) year old girl to engage in sexual
conduct with an adult couple, the Appellant and his wife, and to hide any evidence of this sexual
activity, a ae people would find offensive to their common sense of decency.
B tcstimony revealed that the Appeliant’s actions and the Appellant's wife’s
actions, especially their daily communications conditioned a accept the sexual couduce
and be deterred from reporting the abuse. This Court does not find that any of SS siechy
was contradicted in a manner that would cause this Court to find the verdict is against the weight
30
A147 G02- 3
Circulated 07/20/2022 09:28 A
post
of the evidence, Therefore, this Court did not abuse its discretion by denying the Appellant’s
Post-Sentence Motion for an acquittal or for a new trial based on the weight of the evidence
regarding Count I.
The Appellant challenges the weight of the evidence regarding Count IV- Furnish Liquor
or Malt Beverage to a Minor, 18 Pa. C.S. §6310.1(a), by arguing that there was no evidence of
chins Vichm
influence, ingestion or effects of alcohol. @NBMB testified that the Appellant and the
Appeilant’s wite “usually” provided wine or liquor as well as “weed.” (N.T. June 17, 2019 p.m.
p- 59). ait ad that she smoked marijuana with the Appellant at his residence. Specifically,
she described smoking marijuana upstairs in a spare room in the Appellant’s residence, Id.
Likewise, the Appellant testified that he smoked marijuana several times in his residence. (N.T.
June 15, 2019 p. 38). He admitted to drinking alcohol and being familiar with the effects of
alcohol. Id. at 38-39.
The facts elicited by the Commonwealth reveal that mowing WO underage, the
Appellant provided wine or liquor and weed rowan allowed consumption on several
occasions. In suc Oa tized the term “usually,” which a reasonable jury could infer that the
Appellant and the Appellant’s wife provided yo alcohol and weed on more than one
occasion. Proof of influence, ingestion or effects of alcohol oma not required for a jury .
to convict the Appeliant under 18 Pa. C.S. §6301.1(a). The jury’s finding was supported by the
factual record.
Therefore, this Court did not abuse its discretion by denying the Appellant’s Post-
Sentence Motion for an acquittal or for a new trial based on the weight of the evidence regarding
Count IV.
Ultimately, this Court will not substitute its judgement for the finder of fact, who is free
31
to believe all, part, or none of the evidence, and assess the credibility of the witnesses. See
Commonwealth y, DeJesus, 860 A.2d 102, 107-108 (Pa. 2004)(holding that questions
concerning inconsistent testimony trigger the credibility of the witnesses). Clearly, the jury
found the testimony of the Commonwealth’s witnesses, including the Victim, to be
cousistent, credible and reliable enough to return a verdict of guilty on all charged offenses.
As such, the jury’s decision to credit the witnesses’ respective statements does not render
the verdict contrary to the evidence presented. A review of the record does not indicate that the
verdict is “so contrary to the evidence as to shock one’s sense of justice.” Accordingly, this
Court concludes that the Appellant’s claims are without merit as this Court did not abuse its
discretion. See Commonwealth v. Cramer, 195 A.3d 594, 601 (Pa. Super. 2018) (when trial
court finds verdict not against weight of evidence, appellate court must give gravest
consideration to trial court's conclusion because it had opportunity to hear and see evidence
present).
5. Whether the trial court incorrectly denied Defendant’s Motion for a New
Trial/Judgement of Acquittal when presented with the following regarding the
sufficiency of the evidence and/or whether the evidence was insufficient to support
the jury’s finding of guilt as to the offense of Endangering of Welfare of Children
when the Commonwealth failed to present evidence establishing that there existed a
duty of care and support for the alleged victim and/or that the duty of care and
Support was in any way violated?
6. Whether the trial court incorrectly denied Defendant’s Motion fer a New
Trial/Judgement of Acquittal when presented with the following regarding the
sufficiency of the evidence and/or whether the evidence was insufficient to support
the jury’s finding of guilt as to the offense of Furnishing Alcohol to 2 Minor when |
the Commonwealth failed to present sufficient evidence that an actual alcoholic
beverage was furnished to a minor in that there was no testimony regarding victim’s
knowledge of or prior experience with alcoholic beverages, or testimony regarding
any impact suffered as a result of ingesting the purported “alcoholic” beverage?
The Appellant’s claims five (5) and six (6) contend that there is insufficient evidence to
sustain his convictions on Count Ii, Endangering the Welfare of Children- Parent/Guardian;
32
Count IV, Furnish Liquor or Malt Beverage to a Minor. The standard of review in assessing
whether there was sufficient evidence to sustain Appellant's convictions is well settled:
in reviewing the sufficiency of the evidence, [the Court] must determine
whether the evidence admitted at trial and all reasonable inferences
drawn therefrom, viewed in the light most favorable to the Commonwealth
as verdict winner, is sufficient to prove every element of the offense beyond
a reasonable doubt [ .. . ] [the Court] may not re-weigh the evidence
and substitute our judgment for that of the fact-finder. Any question of
doubt is for the fact-finder unless the evidence is so weak and inconclusive
that as a matter of law no probability of fact can be drawn from the combined
circumstances,
Commonwealth vy. Thomas, 988 A.2d 699, 670 (Pa, Super. 2009), appeal denied 4 A.3d
1054 (Pa. 2010); Commonwealth v. Woods, 638 A.3d 1013, 1015 (Pa. Super. 1994)(“The
entire trial record must be evaluated and all evidence received must be considered.”)
Viewing all evidence in the light most favorable to the Commonwealth, the verdict
winner, this Court finds that there was sufficient evidence from which the jury could conclude
that the Appellant was guilty as to Count i and Count IV. As such, this Court incorporates the
aforementioned reasoning for the Appellant’s weight of evidence claims in issues two, and four
in this section, respectively.
Endangering the welfare of a child, which is defined, in relevant part, as follows:
§ 4304, Endangering Welfare of Children
(a) Offense Defined. —
(1) A parent, guardian or other person supervising the welfare of a
child under 18 years of age, or a person that employs or supervises
such a person, commits an offense if he knowingly endangers the
welfare of the child by violating a duty of care, protection or support.
18 Pa. C.S. § 4304,
| An individual is not required to be a parent or legal guardian of a child to be found guilty of
endangering the welfare of a child. Commonwealth v. Trippett, 932 A.2d 188, 195 (Pa.
Super. 2007). “The language of the statute indicates that any ‘other person’ who supervises the
33
ST
child is eligible to be charged and convicted under the statute.” Id. Under the supervision
element of the statute, it is not the child that the appellant must have been supervising but, rather,
the child's welfare, and the requirement of supervision of a child's welfare ig not limited to only
certain forms of supervision, such as direct or actual, but, by its plain terms, the statute
encompasses all forms of supervision of a child's welfare. Commonwealth y. Lynn, 114 A.3d
796 (Pa. 2015). Pennsylvania courts have established a three-part test that must be satisfied to
prove Endangering the Welfare of Children:
(1) [T]he accused [was] aware of his/her duty to protect the child;
(2) {T]he accused [was] aware that the child [was] in circumstances that could
threaten the child's physical or psychological welfare; and
(3) [T]he accused has either failed to act or has taken action so lame or meager
that such actions cannot reasonably be expected to protect the child's welfare.
Commonwealth v. Pahel, 689 4.2d 963, 964 (Pa. Super. 1997)(quoting
Commonwealth v, Cardwell, 515 A.2d 311, 315 (Pa. Super. 1986).
In Commonwealth v. Taylor, 471 A.2d 1228 (Pa. Super. 1984), the Pennsylvania
Superior Court discussed the legislature's intent in enacting section 4304 and its broad statutory
purpose:
The Supreme Court has said that {s]ection 4304 was drawn broadly to
cover a wide range of conduct in order to safeguard the welfare and
security of children. It is to be given meaning by reference to the common
sense of the community and the broad protective purposes for which it was
enacted. Commonwealth vy, Mack, 359 A.2d 770, 772 (Pa. 1976).
Thus, the “common sense of the community, as well as the sense of
decency, propriety and the morality which most people entertain is
sufficient to apply the statute to each particular case, and to individuate
what particular conduct is rendered criminal by it.” Id., quoting
Commonwealth y. Marlin, 305 A.2d 14, 18 (Pa. 1973).
After a review of the record, the Commonwealth presented sufficient evidence which, if
34
believed, would support the jury's Endangering Welfare of Children verdict. Although the
. * ‘
iiw's
Appellant claims to have violated no duty of care, testimony as well as the Appellant
Yi hm
himself, and the Appellant’s wife established that spent innumerable meals and nights at
the Appellant’s house including over a dozen sleepovers, attending events together, visiting
Vin
Joeha, iE job, exchanging gifts, and joining on a trip together, as well as obtaining matching
Vl
tattoos. am testified while under the supervision of the Appellant and the Appellant’s wife,
\y hyn
and the Appellant would engage in sexual activity, and on one occasion the Appellant’s
a wa
wife participated in the sexual activity. explained she saw the Appellant and the
Appellant’s wife weekly, and that she would regularly sleep at the Appellant’s house overnight.
The Appellant provided her access to “hang” in the house often. The Appellant even allowed
m
to shower at the house. (N.T. June 17, 2019 p. 41, 51, 75). She stated: “I wouldn’t be
able to remember how many times. It was often. Like, if I was seeing them, usually 1 ended up
sleeping there quite a bit [. . . ] l usually would sleep in their bed with them [...] there were a
few times where I slept in the middle between the two of them.” Id. at 58.
\ (hn ichvyh
Initially, recalled a conversation with the Appellant, wherein he told that his
am
wife believed him nd Yuta act on thet urges and kiss. The Appellant manipulated
‘ . 1. i
i yin Vics
into thinking that his wife, SMM tcacher and band instructor, approved of the sexual
Vi ch
activity. Id. at 43. testified: “he had told me that they had kind of talked about it and that
she said that at some point that we should kind of act on those feelings [ . . . ] that she had said
that we should just kind of kiss and get over it.” Id. at 44. Afterwards, when the Appellant’s
am
wife returned to the apartment, learmed: “once, I was there Ruth had kind of said that there
‘was not to be anything more than kissing. So when that was happening Nick was kind of like,
35
well, why should there be boundaries on emotions or feelings [ .. . ] why don’t you let me, [... ]
make you feel better.” Id, at 45.
Vichn
WERE also recalled conversations wherein the Appellant would instruct her to delete
anything of a sexual nature. (N.T. June 18, 2019 a.m. p. 6). ea tie: “he didn’t want
| anybody to know about what was going on in the Snapchats [ . . . } like anything we talked about
regarding anything sexual,” Id, at 6. She explained: “Nick was always prompt about making
sure that I didn’t save anything.” (N.T. June 17, 2019 p, 68). Clearly, the Appellant's
instructions were not for the purpose of safeguarding or protecting the welfare oft hn was
the initial sexual encounter authorized or recommended by his wite.
Since that initial sexual encounter, however, Wal titted to “more than ten” other
sexual encounters with the Tea husband, involving oral sex, digital penetration, and anal
Ay
sex. Also, an occasion where §§illand the Appellant’s wife both performed oral sex on the
Appellant at his wife’s design and direction, in furtherance of a bribe she employed to coerce her
Vichm
husband into attending a family dinner. Id. at 46-56. Moreover, WOM testified that the
Vien
Appellant’s husband purchased a vibrator for Joella and operated the vibrator on . She
noted that the vibrator was kept in the Appellant’s upstairs bathroom drawer. Id. at 60.
It is apparent that the Appellant took actions that cannot reasonably be expected to
chm
protect the welfare of , knowing she was “at-risk,” and susceptible to improper influence.
(N.T. June 19, 2019 p. 11-12, 15). Instead, the Appellant facilitated “non-stop” conversations
(approximately 12,000 phone/text contact at all hours = 80 phone/text contact per day), living
Vichm
arrangements, and situations that fostered inappropriate sexual activity with HER, while also
Vieim
instructing $B to conceal this activity, and discouraging her from having any meaningful or
36
Vichmn
motional relationships with her family and her peers. At times, @iMB would have to defend the
Appellant’s control over her, especially to her mother and father. Id. at 43.
Consistent with Detective Mancuso’s testimony, and publication of the text content to the
jury, revealed an obsessive, abusive, secretive, and controlling intimate relationship at the hands
of the Appellant. (N.T. June 18, 2019 a.m. p. at 66, 69, 75, 92, 94,97). The Appellant texted
y EY Do your own shit, kid, because no one else gives a fuck about you but you and us.”
(N.T. June 19, 2019 p. 28). Also, the Appellant texted Wish “You should visit today, Shh,”
Id. at 27. He testified that he initiated over a dozen sleepovers with Joella yet acknowledged the
prohibition against a teacher being alone with a student and a teacher texting a student at all
hours of the night. Id. at 12, 24, 36-37. See Commonwealth v. Lynn, 114 A.3d 796 (Pa,
2015); Commonwealth v. Bryant, 57 A.3d 191 (Pa. Super. 2012)(sufficient evidence of duty
of care to the victim and that duty was violated in a sexual abuse conviction where the
defendant, a 34 year old man, and the victim a 13 year old girl were frequently present in the
residence together alone, the defendant was the sole adult present in the home during the sexual
assaults, the victim testified that she considered the defendant a family member, and the
defendant testified that he was at the victim’s home 4-5 days out of the week, occasionally
picked the victim up from school, and was involved in the victim’s care).
In the instant case the Commonwealth proved all three elements of Endangering the
tony
Welfare of a Child beyond a reasonable doubt, The Appellant had a duty of care towards Waa
the sixteen (16) year old student he volunteered with on stage crew and was supervising. Asa
student and minor, it became imperative tha obey and accept the Appellant’s direction
and counsel, including his wife’s hee and counsel, To that end, the Appellant was entrusted
On
with control and responsibility over Waal in her parents’ absence, for hours at a time, even
37
Vichm
overnight. The Appellant violated that duty of care according to the testimony of both ili and
(Ch
the Appellant, when he placed in circumstances that endangered her physical and
icam's
psychological well-being and deliberately acted in a manner that did not protect welfare.
The Appellant’s arguments to the contrary are entirely unavailing, Therefore, this Court
concludes that the evidence was sufficient to find Appellant guilty of Endangering the Welfare of
a Child.
Next, the Appellant challenges the sufficiency of the evidence with respect to his
Furnishing Alcohol to a Minor conviction. “Selling or furnishing liquor or malt or brewed
beverages to minors,” provides in pertinent part:
[A] person commits a misdemeanor of the third degree if
[sjhe intentionally and knowingly furnishes...any liquor or
malt or brewed beverages to a person who is less than 21
years of age
18 Pa, C.S. §6310.1(a).
For purposes of Section 6310.1(a), “furnishing” means “[t]o supply, give or provide to, or allow
a minor to possess on premises or property owned or controlled by the person charged.” 18 Pa.
C.S. § 6310.6. The Appellant contends that there was insufficient evidence as to whether the
beverage served was alcohol given the victim’s lack of experience and lack of physical impact
after ingesting. However, 75 Pa C.S. §6312 (a), provides, in pertinent part:
In an action or proceeding ... in which a material element of the offense is that a
substance is liquor or a malt or brewed beverage, all of the following apply:
(1) Chemical analysis is not required to prove that the substance is liquor
or a malt or brewed beverage.
(2) Circumstantial evidence is sufficient to prove that the substance is
liquor or a malt or brewed beverage.
Id.
am
The evidence reveals shor Waa testified that the Appellant “usually,” provided her with “both”
38
drugs and alcohol. (N.T. June 17, 2019 p.m. p. 59). She stated: “It was usually their wine or
Vichm thi
liquor.” Id. As to what type of drugs, MEMB responded: “Weed.” Id. testified that her
and the Appellant would smoke marijuana in a spare room upstairs while the Appellant’s wife
Vichyn's
was downstairs. Id. testimony and observations, both direct and circumstantial is
sufficient to support the jury’s conclusion that the Appellant furnished alcohol and marijuana to a
minor. See Commonweaith y, Oliver, 693 A.2d 1324, 1326-1327 (Pa. Super. 1997).
Importantly, proof of intoxication, ingestion, or impact of alcohol is not required to sustain a
conviction under 18 Pa, C.S. § 6301.1(a).
7, Whether the trial court erred in failing to grant Defendant’s pretrial motion for
examination or in camera examination of the alleged victim’s psychological records
when the mental health of the victim was at issue in the trial, the records could have
supported elements of Defendant’s defense, and when there would have been no
harm to the victim, as the defense sought an in camera review, and that any
perceived harm to the victim would be substantially outweighed by the harm posed
to the Defendant in not disclosing said records resulting in the abrogation of the
Defendant's Sixth Amendment confrontation rights under both the United States
and the Pennsylvania constitutions?
42 Pa. C.S, § 5944 sets forth the privilege between psychiatrists and patients. It states:
No psychiatrist ... shall be, without the written consent of his client,
examined in any civil or criminal matter as to any information acquired
in the course of his professional services in behalf of such client. The
confidential relations and communications between a psychologist or
psychiatrist and his client shall be on the same basis as those provided
or prescribed by law between an attorney and client.
42 Pa. C.S. § 5944,
The psychiatrist-patient privilege, modeled after the attorney-client privilege, codified a
strong public policy that confidential communication made by a patient to her psychiatrist should
be absolutely protected from disclosure. “Information which is protected by an absolute
statutory privilege is not subject to disclosure.” Commonwealth v, Eck, 605 A.2d 1248, 1252
(Pa. Super. 1992). The privilege afforded by § 5944 intends to inspire confidence in the client
39
and to encourage full disclosure to the psychiatrist, preventing the latter from making public
any information which would result in humiliation, embarrassment or disgrace to the client, the
privilege is designed to promote effective treatment and to insulate the client's private thoughts
from public disclosure. Commonwealth v, Kyle, $33 A.2d 126, 128 (Pa. Super, 1987). To that
end, Pennsylvania courts have unequivocally held that “the statutory privilege pursuant to
Section 5944 is not outweighed by a defendant’s right to cross-examine witnesses or his due
process rights.” Commonwealth v. Dowling, 883 A.2d 576, 575 (Pa. 2005); Commonwealth
v. Segarra, 228 A.3d 943, 957 (Pa. Super. 2020){holding that a criminal defendant accused of
sexual offenses denied access to the alleged victim’s records is not a constitutional violation as
the records are statutorily privileged) citing, Commonwealth vy. Smith, 606 A.2d 939, 942(Pa,
Super. 1992)( [P]sychiatric records [that] are statutorily protected are not subject to discovery);
Commonwealth y. Counterman, 719 A.2d 284, 295 (Pa. 1998)( “The statutory privilege set
forth in Section 5944 is not outweighed by either a defendant's Sixth Amendment right to cross-
examine a witness or his right to due process of law.”); Commonwealth y. Patosky, 656 A.2d
499, 502-03 (Pa. Super. 1995)(citing numerous cases in which a criminal defendant's
constitutional rights to confrontation and due process must yield to privilege, and holding that
the trial court's refusal to allow defendant's attorney to conduct in camera review of sexual
assault victim's psychiatric records under section 5944 did not violate his constitutional rights to
confrontation, compulsory process, and due process).
Victim's
As such, SB communications with her counselor/psychiatrist were protected by the
. 1
\ S
psychiatrist-patient privilege. (iat nmunications with her counselor/psychiatrist were
made in confidence while she sought professional psychiatric help. This Court must preserve the
confidential relationship between the victim, WEB and her psychiatrist in order to promote the
49
essential purpose of the statutory privileze—to encourage and foster full disclosure during
psychiatric treatment. See Commonwealth y. Kennedy, 604 A.2d 1036, 1046 (Pa. Super.
1992)(holding that the trial court's in camera review of these records constituted error);
Commonwealth v. Moore, 584 A.2d 936, 940 (Pa, 1991)(the general powers of courts do not
include the power to order disclosure of materials that the legislature has explicitly directed be
kept confidential, especially statutorily protected records of a victim),
‘%
Thus, because mental health records are not subject to exception or discovery,
and because Bae not consented to the records’ disclosure,'' the Appellant’s constitutional
rights are not violated in protecting the records from disclosure and in camera review. For all of
the aforementioned reasons, the Appellant’s claim is without merit ‘eral health
records are privileged, and cannot be disclosed to anyone, or be subject to an in camera review
by anyone, without S nsent
Notwithstanding, the tecord indicates that the Appellant did have a full and fair
opportunity to cross-examine WAIL s to her mental health, which satisfied the Appellant’s
confrontation rights. Because the privilege only limits access to statements made during the
course of treatment by the psychologist, it does not foreclose all lines of defense questioning,
which did indced occur in this case. Counsel for the Appellant elicited testimony from hv
regarding the encouragement she received from the Appellant about consulting a therapist. (N.T.
June 17, 2019 a.m. p. 71). Counsel for the Appellant also elicited from SM her family
problems were taking a toll on her mentally, and that she suffered from depression and would
engage in self- harm, specifically cutting. Id. at 71-72. Counsel elicited the length of time and
regularity in which ain consulted with the therapist, approximately two (2) years, as well as
*! See Commonwealth v. Askew, 666 A.2d 1062 (Pa. Super. 1995)(finding no waiver where the counselor reports
a victim’s allegations of sexual abuse to the police).
41
the year and month in which Yi closed the sexual abuse to her therapist. Id. at 80-81.
Accordingly, counsel for the Appellant effectively raised inferences helpful to the defense as to
Yi cediblity and ial bi i i i aes
, and potential bias, or motives. Lastly, this Court believes that QM mental
condition was not at issue in this case and was irrelevant to the defense of the charges alleged.
Under these circumstances, this Court properly denied an in camera review of the victim’s
privileged records.
8. Whether the trial court erred in refusing to grant Defendant’s request for a mistrial,
following the prosecutor twice referring to the Defendant as a “pedophile,” during
close arguments prejudicing the jury so as to render a fair and impartial verdict?
A motion for mistrial is within the discretion of the trial court and is required only when
an incident is of such a nature that its unavoidable effect is to deprive of a fair and impartial trial
causing prejudice to the defendant. It is within the trial court’s discretion to determine prejudice.
Therefore, the standard of review is whether the trial court abused that discretion.
Notwithstanding, a prosecutor is permitted considerable latitude during closing arguments, A
prosecutor’s arguments are deemed fair if they are supported by the evidence or use inferences
that can reasonably be derived from the evidence. Closing arguments must be evaluated in the
context, in which they were made and in light of statements made during defense counsel’s
summation to which the prosecutor may respond. Commonwealth v. Ligons,773 A2d 1231,
1238 (Pa. 2801). In advocating their case, “prosecuting attorneys have leeway to present their
arguments with logical force and vigor, and they are permitted a degree of oratorical flair.”
Commonwealth y. Laird, 119 A.3d 972, 1010-11 (Pa. 2015).
Accordingly, prosecutorial misconduct is evaluated under 4 harmless error standard, and
does not does not take place unless the unavoidable effect of the comments at issue prejudiced
the jurors by forming in their minds a fixed bias and hostility toward the defendant, thus
42.
impeding their ability to weigh the evidence objectively and render a true verdict.
Commonwealth v. Caldwell, 117 A.3d 763, 774(Pa. Super. 2015) quoting Commonwealth v.
Judy, 978 A.2d 1015, 1020 (Pa. Super. 2009), A harmless error standard evaluates “whether
a defendant received a fair trial, not a perfect trial.” Judy, at 1019-1020.
Proper examination of the Commonwealth’s comments in closing requires review of the
arguments advanced by the defense in defense summation. As indicated, here, the defense was
based essentially upon the notion nor OD fabricated the allegations against the Appellant and
the Appellant’s wife. The defense actively sought to portray the victim as dishonest and sought
to characterize the Commonwealth's case as based on nothing more than the unsupported
allegations of a troubled child, The defense closing included argument in the following
particulars: that the case centered around the uncorroborated allegation of one girl, (N.T. June,
1 19, 2019 p. 51-54); not recounted the allegations of abuse in an unbelievable and
inconsistent manner; Id. at 51-54, 57-58; ae particularly troubled and particularly
likely to lie. Id. at 60, Further, as mitigating circumstances the defense closing referenced
character evidence stating that “When you talk about the woman who is the in effect
superintendent of the Fell Charter School gushing with praise for Nick, You talk about the
counselor at the Charter School or the secretary, at the Charter School gushing with praise. They
are of good character [ . . .] a cross-section of character witnesses can [.. .] attest to the good
character of these people [ . . . ] people of good character, ’'m paraphrasing do not normally
commit crimes. On that evidence alone, you can vote no guilty, That’s the thing with
character.” Id. at 66. Defense counsel devoted a significant portion of closing argument to
portraying the Appellant and the Appellant’s wife as moral, upstanding, law-abiding teachers in
43
the community who could never commit such offenses. He argued that the teachers and
administrators who taught with the Appellant and the Appellant’s wife attested to these traits.
In response to defense counsel’s argument, the prosecutor’s remark was offered to
counter character evidence by highlighting potential witness bias towards protecting the
reputation of Fell Charter. In response, the prosecutor suggested, among other things, that sexual
abuse occurs without witnesses and “behind closed doors,” thus other teachers or administrators
would be embarrassed to learn they work with a pedophile, especially a fellow educator. The
consequences of Fell Charter employing a “pedophile,” would be catastrophic to their
employment, impacting their own livelihood. Therefore, the comments of the prosecutor
represented a fair response to the defense’s summation regarding character evidence. See
Commonwealth v. Judy, 978 A.2d 1015 (Pa. Super. 2009)(holding that reference
to defendant as pedophile and argument that tended to personalize these circumstances for jury
did not warrant mistrial; references were made in direct response to defense contentions and
represented fair means of attempting to persuade jury with a vigorous response to the defense);
Commonwealth v. Ragland, 991 A.2d 336 (Pa. Super. 2010)(finding that the comments made
by the district attorney constituted permissible oratorical flair when viewed in the context of
defense counsel's contention that L.B. was a troubled child not worthy of belicf, especially where
the trial court promptly sustained Appellant's objection and properly instructed the jury).
Here, the prosecutor argued:
And then you have the rest of the crew from Fell Charter testifying to
Nick’s good character, of course, the Baggettas are going to have good
character; right? You want to talk about women who want to save —
irying to get egg of their face, the three women from Fell Charter
who are going to get up here and tell you, ‘We never knew we had a
pedophile working amongst us.’ Of course they don’t want that out
about Fell. They don’t want that to be the reputation of their school.
Of course they are going to get up there and say they had no idea Nick
44
would do something like this. That he was salt of the earth. The best
teacher up at Fell; right? He was such strong character [ ...} you cannot
be an educator in this state if you do those things, so for them to say at
the time 2016 to 2018 they had good character of course they did, they
were teachers, they had to legally.
(N.T. June 19, 2019 p. 84).
Clearly, the prosecutor was arguing that the Feli Charter character evidence was unreliable and
ripe with personal motivations, urging the jury to view the character evidence with disfavor. As
such, this Court found the prosecutor’s statement permissible rebuttal of the Appellant’s
mitigation evidence. It is a fair inference that Fell Charter colleagues would be concerned
about the consequences of the Appellant and the Appellant’s wife’s actions, especially as
educators and how that would impact on the reputation of Feil Charter and their own
employment, Given such context, this Court declined to conclude that the remark so prejudiced
the jury that it could not weigh the evidence objectively and render a true verdict. A mistrial was
not warranted on this contention. See Commonwealth v, Hardcastle, 546 A.2d 1101, 1109
(Pa. 1988)(holding that {a] new trial is not mandated every time a prosecutor makes an
intemperate or improper remark),
The Appellant’s remaining claim also concerns the following:
And I submit to you you have heard all of the evidence. Not just
yich gam. ee by the way, the judge is going to tell you if
you believe if you believe what she told you beyond a
reasonable doubt her word alone is enough to convict the defendants.
Now, we de have — you know, we went through it, there is a
number of other things that corroborate version of events.
Of course there is not going to be a person that saw this happen
other than the two defendants; right? This is happening in the safety
and the confines of fee This is happening in the safe
space that they built for so, of course, there is not going to be
an independent witness; right? ‘That’s not how child abuse works
and that’s not how pedophiles operate. They don’t do it out in the
middle of the street. No.
45
Id, at 101-102.
In this context, the prosecutor is explaining the respective burden of proof as to
uncorroborated victim testimony regarding a sexual offense and the dynamics, and realistic
environment in which a sexual offense likely occurs. When viewed ina larger context, the
prosecutor’s two references, to the term “pedophile,” in fact, was the prosecutor urging the jury
to consider that realistically, sexual abuse is typically secreted. The only witness being the
victim, and how that bears on the credibility of the victim, who might conceal the abuse and
other character witnesses who testify to the improbability of abuse given an otherwise outwardly
upstanding disposition of the alleged perpetrator. See Commonwealth y, Ragland, 991 A.2d
336 (Pa. Super. 2010)(finding that the comments made by the district attorney constituted
permissible oratorical flair when viewed in the context of defense counsel's contention that L.B.
was a troubled child not worthy of belief, especially where the trial court promptly sustained
Appellant's objection and properly instructed the jury).
Moreover, any potential prejudice occurring by virtue of such term was ameliorated by
this Court’s instructions, which prohibited the jury to consider the term in their deliberations.
This Court instructed: “Ladies and gentlemen, you’ve heard the term pedophile used in the
closing. You are to disregard the term. There is no evidence in this case whatsoever in regard to
legal or medical definition of pedophile in this case and so it’s not appropriate to be considered
in your jury deliberations.” Id. at 103. The isolated and incorrect use of this term was perhaps
unfortunate but it did not work to prejudice the jurors by forming in their minds a fixed bias and
hostility toward the Appellant. The jury’s ability to weigh the evidence objectively and render a
true verdict was not impeded and most importantly this reference did not deny the Appellant the
fair trial to which he is entitled. Thus, the Appellant’s aliegations of prosecutorial misconduct
46
ate without merit and this Court did not abuse its discretion in refusing to grant a mistrial on this
basis. This Court properly instructed the jury and the jury is presumed to have followed such
instruction. See Commonwealth y. Thompson, 660 A.2d 68, 76 (Pa. Super. 1995); See alse
Commonwealth y. Sanchez, 82 A.3d 943 (Pa. 2013)( It is within the sound discretion of the
trial court to determine whether a curative instruction, in response to a prosecutor’s improper
reference during closing argument, is necessary).
9. Whether the trial court erred in imposing a sentenced and/or erred in failing to
modify its sentenced pursuant to Defendant’s Post-Sentence Motions, when the
sentence was in the aggravated range of the Pennsylvania sentencing guidelines and
the court failed to state sufficient reasons and/or relied on inappropriate and/or
factors already contemplated by the statute under which Defendant was convicted?
10. Whether the trial court abused its discretion in the imposition of a sentence of 4 % -9
years’ total confinement, which is in the aggravated range of the applicable
Guidelines, in that it was not “necessary” to address the “nature and circumstances
of the crime” in light of the history, character and condition of the Defendant and
was not “consistent with the protection of the public, the gravity of the offense as it
relates to the impact on the life of the victim and on the community and
rehabilitative needs of the defendant?”
The Appeliant’s claims nine (9) and ten (10) challenge the discretionary aspects of
sentence. As observed in Commonwealth v. McLaine, 150 A.3d 76, 76 (Pa. Super. 2016),
“fajn appellant is not entitled to the review of challenges to the discretionary aspects of
a sentence as of right.” Rather, a challenge to the discretionary aspects of a sentence, requires an
appellant satisfy the following four-part test:(1) whether appellant has filed a timely notice of
appeal, (2) whether the issue was properly preserved at sentencing or in a motion to reconsider
and modify sentence, (3) whether appellant's brief has a fatal defect, and (4) whether there is a
substantial question that the sentence appealed from is not appropriate under
the Sentencing Code. Fd. Accordingly, the appeal is timely, and preserved in the Appellant’s
47
Fee PROS EEE
Tra
Post- Sentence Motion, therefore, this Court examines whether the Appellant raises a substantial
question,
A substantial question as to the inappropriateness of a sentence under
the Sentencing Code is present “only when the appeliant advances a colorable argument that
the sentencing judge's actions were either: (1) inconsistent with a specific provision of
the Sentencing Code; or (2) contrary to the fundamental norms which underlie
the sentencing process.” Commonwealth vy. Giass, 50 A.3d 720, 727 (Pa. Super. 2042). In the
present case, the Appellant cannot demonstrate that this Court acted inconsistently with a
specific provision of the Sentencing Code or contrary to the fundamental norms underlying the
sentencing process. Importantly, the sentence is imposed within the statutory limits. See
Commonwealth v, Dodge, 77 A.3d 1263, 1272 n. 8 (Pa. Super. 2013)(“Careful litigants should
note that arguments that the sentencing court failed to consider the factors proffered in 42
Pa.C.S. § 9721 does not present a substantial question).
An allegation that a sentencing judge failed to state adequate reasons on the record for
imposing an aggravated range sentence raises a substantial question for review.
Commonwealth y. Booze, 953 A.2d 1263; 1278 (Pa. Super. 2008). However,
“a sentencing court may consider any legal factor in determining that a sentence in
the aggravated range should be imposed.” Commonwealth v. Stewart, 867 A.2d 589, 592-93
(Pa. Super. 2005). Additionally, the statement of reasons on the record aust reflect this
consideration, and absent a manifest abuse of discretion, the sentencing court’s decision
regarding the agpravation of a sentence will not be disturbed. Id. at 593.
As such, facts regarding the nature and circumstances of the offense that are not
necessarily elements of the convicted offenses, are proper facts to consider in deciding to
48
sentence in the mitigated range or the aggravated range. Commonwealth v. Chilquist, 548 A.2d
272 (Pa. Super. 1988). See also, Commonwealth v. Darden, 531 A.2d 1144, 1149 (Pa. Super.
1987). Additionally, trial courts are permitted to use prior conviction history and other facts
already included in the guidelines, if they sepplement other extraneous sentencing information.
Commonwealth v. Simpson, 829 A.2d 334, 339 (Pa. Super. 2003), An aggravated range
sentence is justified to the extent that the individual circumstances of the appellant’s case are
atypical, such that a more severe punishment is appropriate. Commonwealth v. Fullin, 892
A.2d 848, 848 (Pa. Super. 2006).
Moreover, if a presentence investigative report exists, Pennsylvania Appellate
Courts shall presume that the sentencing court “was aware of relevant information
concerning the defendant’s character and weighed those considerations along with
mitigating statutory factors. A pre-sentence report constitutes the record and speaks for
itself.” Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988}. The Devers court further
articulated that “it would be foolish, indeed, to take the position that if a court is in
possession of the facts, it will fail to apply them to the case at hand.” Id. See
Commonwealth v. Boyer, 856 A,2d 149 (Pa, Super. 2004); Commonwealth v. Burns,
765 A.2d 1144 (Pa. Super. 2000).
Finally, a sentence of confinement must be “consistent with the protection of the
public, the gravity of the offense as it related to the impact on the life of the victims and
on the community, and the rehabilitative needs of the defendant.” 42 Pa. C.S. § 9721¢b).
A sentencing court may determine a defendant’s potential for rehabilitation by
considering his demeanor, apparent remorse, manifestation of social conscience, and
ecoperation with law enforcement agents. Commonwealth v. Begley, 780 A.2d 605, 644
49
(Pa. 2001); Commonwealth y. Constantine, 478 A.2d 39 (Pa. Super. 1984);
Commonwealth v. Gallagher, 442 A.2d 820 (Pa. Super. 1982). Likewise, the
sentencing court can always consider the historic purposes of punishment in fashioning a
sentence that is appropriate based on the facts and circumstances of the case and the
specific defendant. Pennsylvania appellate courts have held that the factors to consider in
punishment are incapacitation, deterrence, and rehabilitation. 204 Pa. Code § 303.11(a).
Here, the Appellant cannot demonstrate that this-‘Court acted inconsistently with a
specific provision of the Sentencing Code or contrary to the fundamental norms underlying the
sentencing process. Importantly, for sufficient reasons on the record, acutely aware of the
applicable sentencing ranges, this Court imposed an aggravated sentence within the statutory
limits as to three criminal offenses. This Court clearly expressed its consideration of the
seriousness of the offenses, the length of time within which the abuse occurred, and exertion of
means necessary to continue the abuse, the rehabilitative needs of the Appellant, and the
mitigating circumstances when fashioning sentence. This Court stated:
Mr, Baggetta, I can teil you that I have heard thousands —
like, tens of thousands of cases, whether it be pleas or trials,
and I’ve seen cases which were despicable in nature. In this
particular case it’s the jury that has found you guilty of these
charges, and the Court is guided by that in regard to its
sentencing. I can tell you that f read ail the letters that were sent
by family members and friends, and I feel for your families, I feel
for your mother, your father. I feel for [... ] the Flanagan family.
And I feel most in regard to your daughter. As a result of your
actions she doesn’t have a mother and father there by her side
raising her. That is damage from your criminal acts. And,
unfortunately it’s not the Court that has to reunite, its basically you.
You have not only done that to your families, but you’ve taken a
young woman, who by everyone’s testimony, had mental health
issues and emotional issues, and you were able to basically target
her, groom her, and abuse her. What you did, and the power that you
had, in your position, these vulnerable — all children. Its not just the
one. It’s all, And she will be scarred. Just like your daughter is
30
scarred, so too, the victim in this case will be scarred for the rest of
her life. The Court finds that there are aggravating factors in regard
to the matter. And based upon the facts, the number of text messages,
the length of period of time, and the actions that were committed by you,
that’s the aggravated range based upon the jury’s verdict.
(N.T, January 14, 2020 p. 16-17,
The above reasons reveal that while this Court referenced the Appellant’s position and
power in some part, this Court referenced the Appellant’s power in relation to his undeterred
conduct, underlying nature, and continuing circumstances of the offenses that occurred over two
(2) years, as well as the high risk to the victim and other students, including the Appellant’s
targeting and grooming of the victim and the manner and means in which the Appellant exerted
control over the victim, gaining access to the victim inside the school setting and preparing the
victim for sexual assault outside of the school setting. The Appellant’s “power,” was beyond
that of his volunteer teaching position. The Appeliant’s position is not the sole reason for his
power over the victim. Indeed, the Appellant’s created conditions in which he abused the victim
verbally, emotionally, and sexually, escalating cach time he sent her a text, a Snapchat, initiated
a “hang-out,” provided alcohol and marijuana or invited the victim to sleep over, bought the
victim dinner or a gift. Therefore, the Appellant's reliance on the term “position” and “power,”
distorts the context in which the terras were utilized by this Court. Contrary to the Appellant's
claim and considered within the whole context of this Court’s statements, such factors are not
impermissible considerations. This Court cannot consent to the Appellant’s tolerant attitude of
sexual abuse and blatant ignorance of mandated reporter policies. The Appellant’s actions
completely contravene his educational training and educational positions. He abandoned all
professional ethics when he engaged in sex acts for over two (2} years with a 16-year-old female
student whom he supervised on stage crew.
51
Importantly, the irreparable psychological damage the Appellant had caused upon the
victim, including isolating the victim from her peers and her family; encouraging an intimate
relationship to sexually victimize, despite knowing of the victim’s delicate mental health led to
the increased sentence. The Appellant intimidated the victim mentally and physically over long
periods of time for the Appellant’s own sexual gratification, even intimidating his wife to secret
his sex acts and became involved in the sex acts with the victim. The Appellant’s actions caused
the victim more harm than she already suffered from her family dysfunction. This Court cannot
ignore that the victim was subjected to the Appellant’s control for several years as referenced in
her victim impact statement. The victim advised this Court, and the Commonwealth reiterated:
“He consistently made me feel like no one could possibly ever actually care for me except he and
Ruth, He told me countless times that my parents didn’t actually love me, which confused me
immensely.” (N.T. January 14, 2020 p. 4). At the time of sentencing, this Court articulated
that it viewed the inherent seriousness of the offenses alongside the particular suffering of this
victim in considering to aggravate the Appellant’s sentence. As such, this Court determined that
if the Appellant were not incapacitated, the Appellant would be at a greater risk to commit
further offenses towards the victim and others. Such likelihood is apparent where the Appeilant’s
livelihood is rooted in the educational system and the Appellant has demonstrated he is unable to
manage his sexual deviancies in such a setting.
Therefore, that this Court may not exclusively use the Appellant’s volunteer position in
sentencing does not mean that it must ignore it, nor ignore the individual and atypical conditions
that the Appeilant’s position, and especially his wife’s position created for the victim. Trial
testimony revealed that the Appellant did not have 80 phone contacts per day and sleep overs
with other students. Ultimately, a review of the record reveals that this Court considered
52
additional permissible reasons for an aggravated range sentence. Given this Court's use of other
permissible factors, an abuse of discretion did not occur in considering the Appellant's power
and position when fashioning sentence. Therefore, the Appellant’s allegation that this Court
utilized an improper aggravating factor is without merit. See Commonwealth y, P.L.S., 894
A.2d 120, 133 (Pa. Super. 2006)(finding that even if the trial court considered an inappropriate
factor at sentencing, “the court offered significant other support for sentencing in excess of the
guidelines in this case”),
Indeed, prior to imposing sentence, this Court did meaningfully consider the sentencing
guidelines, as weil as all section 9721(b) factors, including mitigating and aggravating
circumstances as explained in the PSI, and as articulated by the Appellant himself, the
Appellant’s family members and argued by the Appellant's counsel. This Court also possessed
the victim impact statement, including its recollection of the victim's lengthy testimony at trial.
To that end, this Court sentenced the Appellant within the statutory aextinare for the offenses
charged.
On Count I: Intercourse/Sexual Contact with Student, 18 Pa, C.S, §3124.2 (a.2)(1), this
Court sentenced the Appellant to eighteen (18) — thirty-six (36) months with three (3) of special
probation. An aggravated range sentence. The maximum term for a violation of
Intercourse/Sexual Contact with Student, 18 Pa, C.S. §3124.2 (a.2)(1), graded as a felony of the
third degree is seven (7) years, 18 Pa. C.S. § 1103(3). The Appellant had an offense gravity
score of six (6) and a prior record score of zero (0). Under the sentencing guidelines for such
scores, the standard range of minimum sentence is three (3) to twelve (12) months. The
aggravated range of minimum sentence for the above scores is eighteen (18) months.
53
On Count I, Endangering the Welfare of Children- Parent/Guardian, 18 Pa. C.S. §
4034(a)(1), this Court sentenced the Appellant to eighteen (18) — thirty-six (36) months with two
(2) years of special probation. An aggravated range sentence. The maximum term for a
violation of Endangering the Welfare of Children- Parent/Guardian, 18 Pa. C.S. § 4034(a)(1),
graded as a felony of the third degree due to the jury’s finding of a “course of conduct,” is seven
(7) years. 18 Pa. C.S, § 1103(3). The Appellant had an offense gravity score of six (6) and a
prior record score of zero (0}. Under the sentencing guidelines for such scores, the standard
range of minimum sentence is three (3) to twelve (12) months, The aggravated range of
minimum sentence for the above scores is eighteen (18) months.
On Count IH, Corruption of Minors-Defendant age 18 or above, 18 Pa C.S.
§6301(a)(1)(ii), this Court sentenced the Appellant to eighteen (18) — thirty-six (36) months. An
aggravated range sentence. The maximum term for a violation of Corniption of Minors-
Defendant age 18 or above, 18 Pa C.S. §6301(a)(1}(ii), graded as 2 felony of the third degree
due to the jury’s finding of a “course of conduct,” is seven (7) years. 18 Pa. C.S. § 1103(3). The
Appellant had an offense gravity score of six (6) and a prior record score of zero (0), Under the
sentencing guidelines for such scores, the standard range of minimum sentence is three (3) to
twelve (12) months. The aggravated range of minimum sentence for the above scores is eighteen
(18) months.
Lastly, on Count IV, Furnish Liquor or Malt Beverage to a Minor, 18 Pa. C.S,
§6310,1(a), this Court sentenced the Appellant to one (1) year special probation. A standard
range sentence. The maximum term for a violation of Furnish Liquor or Malt Beverage to a
Minor, 18 Pa. C.S. §6310.1(a), graded as a misdemeanor of the third degree is one (1) year. 18
Pa. C.S. §1104(3). The Appellant had an offense gravity score of one (1) and a prior record
34
score of zero (0). Under the sentencing guidelines for such scores, the standard range of
minimum sentence is RS(restorative sanctions)(non-confinement sentencing options such as
community service or probation).'? The aggravated range of minimum sentence is Restrictive
Intermediate Punishment (RIP) — three (3) months, This Court sentenced the Appellant to one
(1) year special probation.
Accordingly, this Court acknowledges that the sentences imposed were within the
aggravated range in part for compelling reasons considering the particular circumstances of the
offense and the character of the Appellant. The record belies the Appellant’s claims, which in
turn merit no relief. This Court disclosed awareness of the sentencing guidelines and complied
with an oral explanation on the record. This Court imposed an aggravated sentence on three of
the Appellant’s offenses to comport with the Appellant’s inability to appreciate the wrongfulness
of his conduct as well as provide protection to the victim and other students. This Court found
the nature of the Appeliant’s sexual victimization and grooming to be severe. If not for his
arrest, the Appellant would have continued his employment in education, targeting other “at-
tisk” students. The danger the Appellant posed to other students outweighed the Appellant’s
rehabilitation, and the remorse he displayed at sentencing, notwithstanding the lack of remorse
and blame shifting he displayed at trial. This Court personally observed that the Appellant did
not appreciate the seriousness of his offenses nor the seriousness of his uncontrolled sexual
deviancy. Also, the record is silent as to any further rehabilitation/menta! health counseling"? the
Appellant sought or completed, nor did the Appellant cite or refute the record with proof of the
same,
'2 See Commonwealth v. Wagner, 702 A.2d 1084, 1086 (Pa. Super. 1997).
'3 Ali factors that could have weighed in the Appellant's favor, had the Appellant availed himself of treatment
opportunities,
55
The record iflustrates ample reasons for the sentence imposed; thus Appellant's argument
lacks merit. See Commonwealth vy. Gooding, 818 A.2d 546, 554 (Pa.Super.2603) (trial court
satisfied duty to make record of reasons for sentence imposed). Because this Court did not apply
the guidelines erroneously, nor utilize an unreasonable application or impose an unreasonable
sentence outside the guidelines, this Court requests that the Appellant’s sentence be affirmed
pursuant to 42 Pa. C.S.A, § 9781(c) and (d); See Commonwealth y, Walls, 926 A.2d 957, 961
(Pa. 2007)(appellate review of discretionary aspects of sentence confined by statutory mandate
of 42 Pa.C.S. § 9781(c) and (d)}.
iJ. Whether the trial court erred regarding the sentencing of the Endangering the
Welfare of Children count as a third degree felony, when the Criminal Information
failed to allege a “course of conduct” required for the enhanced grading, regardless
of the specific question posed to the jury on the verdict slip?
Appellant was convicted by a jury of one (1) count of Endangering the Welfare of
Children, a third degree felony. The jury specifically found that there was a “course of conduct,”
with regard to the Endangering Welfare of Children charge. See Verdict Slip June 19, 2019.;
Compare Commonwealth v. Morales, 251 A.3d 1222 (Pa. Super. 2021)(under the EWOC
Statute, in order to grade the offense as a third-degree felony, a specific determination must be
made that “the actor engaged in a course of conduct” of endangering the welfare of a child).
In analyzing a grading issue, the Pennsylvania Superior Court has recognized that
“course of conduct” is not an eletnent of the offense of Endangering the Welfare of Children, but
it is an additional fact, a jury question that impacts the grading of the offense. Commonwealth
y. Popow, 844 A.2d 13, 18 (Pa. Super. 2004). Here, the Commonwealth alleged facts in the
initial Criminal Information and Amended Criminal Information, which were proven at the time
of trial to support the grading, Count II of the Criminal Information and Amended Criminal
Information alleged between March 2015 and January 2018:
36
Endangering Welfare of Children-Parent/Guardian/Other Commits Offense
18 Pa. C.S. 4304(a)(1} Grade: Felony 3; $15,000; 7 years;
being a parent, guardian, or other person supervising the welfare of a child
under 18 years of age, or a person that employs or supervises such a person,
commits an offense if he knowingly endangers the welfare of the child by
violating a duty of care, protection or support, to wit: Nicodema Baggetta
did engage in sexual activity and conversations with J.L. a 16 year old female
Farther, in support of the endangerment charge and the additional factor of “course of
chm
conduct,” the Commonwealth provided the extensive and detailed testimony of: describing
conduct that occurred over a two-year period, coupled with 12,000 phone contacts via text or call
with the Appellant, and 11,000 phone contacts via text or call with the Appellant's wife within a {
five-month period. Additionally, the Appellant admitted to purchasing a camera lens and a
vibrator as gifts, dinners, invitations to “hang out,” approximately a dozen or more sleepovers,
. chi's ich
obtaining matching tattoos, visits to job, confrontation with employer,
agi eon
exchanging Christmas gifts with and “usually,” providing marijuana and alcohol to
Importantly and most egregiously, the Appellant engaged in sexual activity win WTO at least
“more than ten” encounters, involving oral sex, digital penetration, and anal sex as well as one
\icim
occasion where {8098 and the Appellant’s wife both performed oral sex on the Appellant at his
wife’s design and direction, in furtherance of a bribe employed to coerce him into attending a
family dinner, The jurors listened to the Appellant tell them he did not notify administration, nor
icy Yichin's
voter ma the guidance counselor despite being concerned about SiR » ental health or
suicidal ideations throughout a two (2) year period.
unin
ution explained she saw the Appellant and the Appetlant’s wife weekly, and that she
would regularly sleep at the Appellant’s house overnight, The Appellant provided her access to
“hang” in the house often. The Appellant even slowed Wa to shower at the house. N.T. June
17, 2019 p. 41, 51, 75, She stated: “I wouldn’t be able to remember how many times. It was
57
eNOS
often. Like, if I was seeing them, usually I ended up sleeping there quite a bit [. . . ] lusually
would sleep in their bed with them [.. .] there were a few times where I slept in the middle
between the two of them.” Id. at 58. Van explained that on some occasions, the
Appellant groped her on the outside of her clothes and underneath her clothes, all over her
stomach, butt, and in between her legs, while she slept next to him and his wife. Id. at 58-59.
Nica that the Appellant purchased a vibrator for her and operated the vibrator on her.
She noted that the vibrator was kept in the Appellant’s upstairs bathroom drawer, easily within
the purview and access of the Appellant and his wife. Id. at 60.
At the outset of the ccintionshin 4a Neate a conversation with the Appellant,
wherein he totaal that his wife believed they should act on their urges and kiss. Id. at 43.
eae testified: “he had told me that they had kind of talked about it and that she said that at
some point that we should kind of act on those feelings [ .. . ] that she had said that we should
just kind of kiss and get over it.” Id, at 44. Clearly, the Appellant’s instructions were not for the
purpose of safeguarding or protecting the welfare ai” Rather, the Appellant manipulated
an believing that her teacher and band instructor, the Appellant’s wife acquiesced to a
sexual relationship between Wamp ch and the Appellant. ihe explained that while the Appellant’s
wife conducted at a music festival, Yuh and the Appeilant engaged in sexual activity. She
stated that upon the Appetlant’s wife’s return home, “Ruth had kind of said that there was not to
| be anything more than kissing.” Id. at 45. Since that initial sexual encounter, Med Med to
“more than ten” other sexual encounters with the Appellant, involving oral sex, digital
penetration, and anal sex. Id. at 46-56. The Appellant expressed that “nobody was going to be
Vi yn
able to treat | better than he would.” Id. at 43.
58
EAE ST SE TTS
Ciearly, the allegations and evidence did not comprise a single event, but separate and
distinct instances of sexual activity and “non-stop” conversations. The record is replete with
instances of inappropriate contact between the Appellant and sae na the Appellant’s wife
and UN" sore, the Commonwealth presented evidence of multiple events, wherein the
| Appellant possessed awareness ot aoa young age, susceptibility, vulnerability, and the
impact of his position of authority, disregarded every policy and procedure of a mandated
reporter, as well as the impact of his wife’s position of authority to engage in sexual activity with
uci The Appellant likewise encouraged an intimate relationship among himself, a" and
Vicar
his wife. The Appellant befriended WB, manipulated his role as a teacher volunteer,
exhaustively communicated with ae promoted bad behaviors. The Appellant and the
Appellant’s wife permitted unrestricted access to their personal life and home, including multiple
overnight stays and sleeping in the same bed. Over a two year period, the Appellant failed to
take protective action and fostered opportunities for sexual activity to occur and to conceal the
sexual activity/ sexual conversations. Ultimately, the Appellant engaged in multiple acts of
| sexual activity with describing the instances as “our relationship.” For these reasons, the
evidence supported a “course of conduct” finding.
Importantly, this Court properly defined “course of conduct” in its instruction and the
jury was charged to determine and making a finding on “course of conduct.” (N.T. June 19,
2019 p. 119). Pennsylvania law defines “course of conduct” as “multiple acts over time” or “a
patiern of actions composed of more than one act over a period of time, however short,
evidencing a continuity of conduct.” Commonwealth y. Smith, 206 A.3d 565, 566 (Pa. Super.
2019); Commonwealth v. Gray, 251 A.3d 1220 (Pa. Super. 2021).
59
As such, the jury was able to determine facts to support the grading of the Endangering
Welfare of Children as a third-degree felony and understood that it was making a finding on
“course of conduct.” The record reflects that the Commonwealth alleged in the criminal
information/ amended criminal information, and presented evidence at trial, of the additional
factor of “course of conduct,” and this Court instructed the jury on “course of conduct.”
Accordingly, the evidence is sufficient to establish the crime of Endangering the Welfare of
Children as a third-degree felony, and this Court properly graded this offense at sentencing.
Therefore, this Court’s sentence as a third-degree felony is legal and the Appellant’s claim is
without merit. See Commonwealth vy. Smith, 206 A.3d 551, 565 (Pa. Super. 2019)(finding
appellant’s grading argument meritless and case indistinguishable from Popow, where the
criminal information charged corruption of minors as a third degree felony, consistent with the
Commonwealth’s evidence presented at trial that the Appellant engaged in the aforementioned
actions on multiple occasions, and where the trial court gave a proper jury instruction with the
“course of conduct” requirement); Commonwealth y. Suarez, 2016 WL 5210886 (Pa. Super.
2016)(finding that it is clear from the record that where the Commonwealth alleged in the
criminal information and presented evidence at trial of the additional factor, and the jury was
instructed on the element of “course of conduct,” in order to convict, the trial court properly
graded the offense at sentencing).
60
12. Whether the trial court erred in denying Defendant’s Motion for Bail Pending
Appeal when there was already a significant amount of time in jail served, and
Defendant presents no threat to the community and/or victim, has both family and
community support, presents no flight risk, as evidenced by the fact that while
previously on bail he appeared for all required court appearances and committed no
bail violations aud desires to both begin the process of rebuilding his life and
actively participate iu the preparation of her appeal?
The Pennsylvania Superior Court has explained: “{w]e wiil review the lower court's
order denying a bail application for an abuse of discretion and will only reverse where the trial
court misapplies the law, or its judgment is manifestly unreasonable, or the evidence of record
show that [its] decision is a result of partiality, prejudice, bias, or ill will.’ Commonwealth v.
Bishop, 829 A.2d 1170, 1172 (Pa. Super. 2003),
Here, the Appellant claims that this Court should have granted his motion for bail
because the Appellant remained on bail without incident and was neither a threat to the
community or flight risk.
Pa. R, Crim. P. 521(b)(2) provides, in relevant part as follows:
when the sentence imposed includes imprisonment of 2 years
or more, the defendant shall not have the same right to bail as
before verdict, but bail may be allowed in the discretion of the judge
Id.Pa. R. Crim, P, 521(d)(2) provides, in relevant part as follows:
The decision whether to change the type of release on bail or
what conditions of release to impose shall be based on the judge's
evaluation of the information about the defendant as it relates to the release
criteria set forth in Rule 523. The judge shall aiso consider whether there
is an increased likelihood of the defendant's fleeing the jurisdiction or
whether the defendant is a danger to any other person or to the community
or to himself or herself.
Id.Accordingly, this Court presided over the Appellant’s trial and sentencing and, as such, is
familiar with the nature of the offense, the character of the Appellant, his circumstances, and thus
6
held pertinent information on which to conclude that bail should be denied pending appeal.
Contrary to the Appellant’s claims, this Court denied bail pending appeal because he presented a
threat to the community. As noted by this Court when considering the Appellant’s sentence, this
Court found the Appellant’s actions to be predatory in nature and therefore presented a risk to the
community, especially Lakeland High School students and band members, The Appellant
demonstrated to this Court a cognitive distortion in that he is an adult and is incapable of
managing and understanding sexually inappropriate behaviors towards minors. This Court found
the Appeilant’s preoccupation with the victim and control of the victim troubling, especially
where the Appellant knew his actions were illegal. The Appellant did not posit to this Court any
treatment plan to assist with his cognitive abnormalities. While, the Appellant shows evidence
of positive support systems within his family, the Appellant held those positive support systems
at the time of the instant offenses and chose to engage in sexually inappropriate behavior for at
least two (2) years, including investing an excessive amount of time, money, and energy in
grooming the victim. It is in the context of trust that the Appellant exploited the
student/teacher/mentor relationship. As such, this Court found the Appellant’s support system to
be an unavailing factor. Moreover, the Appellant held a teaching career, which was terminated
due to the instant offenses, and has not demonstrated to this Court any other employment
prospects unrelated to education or minors, while previously on bail. Since the Appellant is not
gainfully employed, this factor is likewise unavailing. Finally, regardless of the Appellant’s zero
prior record, the Appellant was convicted of three serious felony offenses, and the issues raised
as to the sufficiency of the evidence to support the convictions have little, if any, likelihood to
prevail.
62
se
SEE GETIIT
RR
appropriate factors, and did not abuse its discretion.
BY THE CO
KR
Michael J. Bar
following individuals:
Lisa Swift, Esq.
Sara Varela, Esq.
Lackawanna County District Attorney’s Office
Jennifer McCambridge, Esq.
Attorney for the Appellant
63
Additionally, the impact of incarceration on the Appellant is not exceptional from others
sentenced for sexually inappropriate offenses towards minors, in li ght of the Appellant’s privity
to the victim and length of time in which the sexual abuse occurred as well as the Appellant’s
control over the victim, directing her to delete conversations of a sexual nature and conceal her
Visits to the Appellant’s house. In making this bail determination, this Court balanced the
J.
. ae
CC: Notice of the entry of the foregoing Memorandum has been provided to each party pursuant
to Pennsylvania Rule of Criminal Procedure 114 by mailing time-stamped copies to the