Commonwealth v. Golphin

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2017 PA Super 137COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
EDWARD GOLPHIN
Appellant : No. 1351 EDA 2016
Appeal from the Judgment of Sentence April 8, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0005374-2014
BEFORE: LAZARUS, SOLANO, JJ., and STEVENS, P.J.E.*
OPINION BY STEVENS, P.J.E.: FILED MAY 08, 2017
This is an appeal from the judgment of sentence entered in the Court
of Common Pleas of Philadelphia County following Appellant's conviction by a
jury on the charges of third-degree murder, conspiracy, aggravated assault,
and endangering the welfare of a child ("EWOC").1 After a careful review,
we affirm.
Following the death of the four -year -old victim, S.B., Appellant was
arrested, and he proceeded to a jury trial at which he was represented by
1 18 Pa.C.S.A. §§ 2502(c), 903, 2702(a), and 4304(a)(1), respectively.
* Former Justice specially assigned to the Superior Court.
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counsel.2 The Honorable Genece Brinkley has summarized in detail the
testimony presented at trial, and her factual findings are supported by the
record. Trial Court Opinion, filed 9/2/16, at 3-29. Thus, we set forth only
those background facts necessary for an understanding of this appeal.
The evidence reveals that Josephita Brown and her two children, Sean
B. and S.B., lived with her paramour, Appellant. At some point, six -year -old
Sean B. reported to his grandmother that Appellant had hit him, and
thereafter, his grandmother gained custody of him. Id. at 4-5. However,
S.B. continued to live with Josephita and Appellant, who subsequently had a
child of their own, A.B. Id. at 5
In May of 2013, S.B. suffered a broken leg, and Josephita provided
inconsistent statements as to how the fracture occurred. Id. at 5-6. S.B.'s
daycare provider noticed that S.B. also had several deep lacerations to her
back, and Josephita provided inconsistent statements as to how the injuries
occurred. Id. at 6, 14-15. The Department of Human Services received a
report of abuse concerning S.B. in June of 2013, and they put into place a
safety plan, which required Appellant's cousin to supervise Josephita's and
Appellant's interactions with S.B. Id. at 6.
2 S.B.'s mother, Josephita Brown, was also charged in connection with the
death of S.B. She pled guilty to the charges of EWOC, conspiracy, and
involuntary manslaughter; the trial court sentenced her to an aggregate of
four years to eight years in prison.
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During the early morning hours of July 16, 2013, Josephita took an
unresponsive S.B. to the Children's Hospital of Philadelphia ("CHOP"), where
S.B. was pronounced dead. Id. at 10. A subsequent autopsy revealed that
S.B. died as a result of internal blood loss caused by a laceration to her liver.
Id. at 19. At the time of her death, S.B. had additional new and pre-
existing injuries, including scars, scrapes, bruises, scratches, bite marks, a
fractured tibia, a tear to her small bowel mesentery, 11 fractured ribs, and a
ruptured eardrum. Id. at 19-23.
Upon questioning, Josephita informed the police that she observed
Appellant punching and kicking S.B. during the late evening hours of July 15,
2013, and he then left the house. Id. at 9. Upon his return, Appellant
began beating S.B. again, and Josephita could hear S.B.'s screams and
noticed that she had an adult bite mark on her lower lip. Id. at 10.
Appellant again left the house, at which time S.B. was no longer breathing.
Id. When Appellant later returned, Josephita told him that S.B. was dead,
and Appellant took them to CHOP. Id. Josephita admitted to police that
S.B. had broken her leg in March of 2013 when Appellant pushed her down a
flight of stairs. Id. at 9. She also admitted that S.B.'s back lacerations
resulted from Appellant beating her with a belt buckle. Id.
At the conclusion of trial, on February 2, 2016, the jury found
Appellant guilty of the offenses indicated supra, and on April 8, 2016, the
trial court sentenced Appellant to 20 to 40 years in prison for third-degree
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murder, 20 to 40 years in prison for conspiracy, 10 to 20 years in prison for
aggravated assault, and 21/2 to 5 years in prison for EWOC. The trial court
imposed the sentences consecutively, resulting in an aggregate sentence of
521/2 years to 105 years in prison. Appellant did not file a post -sentence
motion; however, represented by new counsel, Appellant filed this timely
appeal on April 28, 2016. All Pa.R.A.P. 1925 requirements have been met.
Appellant presents the following issues for our review:
I. Is Appellant entitled to an arrest of judgment with regard
to his convictions for third-degree murder, criminal
conspiracy, aggravated assault, and [EWOC] since the
evidence is insufficient to sustain these convictions as the
Commonwealth failed to prove Appellant's guilt of these
crimes beyond a reasonable doubt?
II. Is Appellant entitled to a new trial as a result of the trial
court's pretrial ruling that granted the Commonwealth's
motion to admit evidence of other crimes and/or bad acts?
III. Is Appellant entitled to a new trial as a result of the trial
court's pretrial ruling that granted the Commonwealth's
motion to admit the prior statements of [Sean] B.?
IV. Is Appellant entitled to a new trial as a result of the trial
court's failure to grant Appellant's challenges for cause to
prospective jurors number twelve and forty-two?
V. Is Appellant entitled to a new trial as
result of the trial
a
court's restriction on Appellant's cross-examination of
Commonwealth witness Tracey Cobb concerning a false
allegation of rape made by [co-conspirator] Josephita
Brown?
VI. Is Appellant entitled to a new trial as a result of the trial
court's denial of Appellant's motion for a mistrial after the
prosecutor commented on redirect examination of
Commonwealth witness Dr. Lawrence Dobrin that she had
to address "some of the irrelevancies we were just
subjected to for the past 20 minutes"?
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VII. Is Appellant entitled to be resentenced since the sentences
imposed for aggravated assault and [EWOC] merged with
the sentence imposed for third-degree murder?
Appellant's Brief at 5-6.
In his first issue, Appellant challenges the sufficiency of the evidence
supporting his convictions. Specifically, Appellant contends the evidence
was insufficient to prove that (1) Appellant had the requisite mens rea for
third-degree murder, (2) Appellant entered into an agreement with Josephita
to commit third-degree murder as is required for conspiracy, and (3)
Appellant was S.B.'s guardian, supervised S.B., or otherwise violated any
duty of care as required for EWOC.3
The standard we apply in reviewing the sufficiency of the
evidence is whether viewing all the evidence admitted at trial in
the light most favorable to the verdict winner, there is sufficient
evidence to enable the fact -finder to find every element of the
crime beyond a reasonable doubt. In applying [the above] test,
we may not weigh the evidence and substitute our judgment for
the fact -finder. In addition, we note that the facts and
circumstances established by the Commonwealth need not
preclude every possibility of innocence. Any doubts regarding a
defendant's guilt may be resolved by the fact -finder unless the
evidence is so weak and inconclusive that as a matter of law no
probability of fact may be drawn from the combined
circumstances. The Commonwealth may sustain its burden of
proving every element of the crime beyond a reasonable doubt
by means of wholly circumstantial evidence. Moreover, in
applying the above test, the entire record must be evaluated and
all evidence actually received must be considered. Finally, the
3 Appellant presents no specific sufficiency argument as it relates to his
aggravated assault conviction; however, as the trial court has aptly
reasoned, the evidence was sufficient to sustain this conviction. See Trial
Court Opinion, filed 9/2/16, at 36-37.
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[finder] of fact while passing upon the credibility of witnesses
and the weight of the evidence produced, is free to believe all,
part or none of the evidence.
Further, in viewing the evidence in the light most favorable
to the Commonwealth as the verdict winner, the court must give
the prosecution the benefit of all reasonable inferences to be
drawn from the evidence.
Commonwealth v. Harden, 103 A.3d 107, 111 (Pa.Super. 2014) (citation
and quotation omitted).
Third-degree murder is defined [as] all other kinds of
murder other than first degree murder or second degree murder.
The elements of third-degree murder, as developed by case law,
are a killing done with legal malice.
Malice exists where there is particular ill -will, and also
a
where there is a wickedness of disposition, hardness of heart,
wanton conduct, cruelty, recklessness of consequences and a
mind regardless of social duty.
Commonwealth v. Marquez, 980 A.2d 145, 148 (Pa.Super. 2009) (en
banc) (quotations and quotation marks omitted). "Malice is established
where an actor consciously disregard[s] an unjustified and extremely high
risk that his actions might cause death or serious bodily harm."
Commonwealth v. Devine, 26 A.3d 1139, 1146 (Pa.Super. 2011)
(quotation and quotation marks omitted). "Malice may be inferred by
considering the totality of the circumstances." Commonwealth v. Dunphy,
20 A.3d 1215, 1219 (Pa.Super. 2011) (citation omitted).
trier of fact must
To convict a defendant of conspiracy, the
find that: (1) the defendant intended to commit or aid in the
commission of the criminal act; (2) the defendant entered into
an agreement with another (a "co-conspirator") to engage in the
crime; and (3) the defendant or one or more of the other co-
conspirators committed an overt act in furtherance of the agreed
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upon crime. 18 Pa.C.S.[A.] § 903. The essence of a criminal
conspiracy, which is what distinguishes this crime from
accomplice liability, is the agreement made between the co-
conspirators.
"[M]ere association with the perpetrators, mere presence
at the scene, or mere knowledge of the crime is insufficient" to
establish that a defendant was part of a conspiratorial
agreement to commit the crime. There needs to be some
additional proof that the defendant intended to commit the crime
along with his co-conspirator. Direct evidence of the defendant's
criminal intent or the conspiratorial agreement, however, is
rarely available. Consequently, the defendant's intent as well as
the agreement is almost always proven through circumstantial
evidence, such as by "the relations, conduct or circumstances of
the parties or overt acts on the part of the co-conspirators."
Once the trier of fact finds that there was an agreement and the
defendant intentionally entered into the agreement, that
defendant may be liable for the overt acts committed in
furtherance of the conspiracy regardless of which co-conspirator
committed the act.
Commonwealth v. Murphy, 577 Pa. 275, 292, 844 A.2d 1228, 1238
(2004) (citations and quotations omitted).
In the case sub judice, in finding no merit to Appellant's sufficiency of
the evidence claims as it relates to his convictions for third-degree murder
and conspiracy, the trial court indicated the following:
[Dr. Samuel Gulino, the Chief Medical Examiner,] testified
that S.B. died from blood loss caused by a laceration to her liver
which would have been inflicted sometime between 11:30 p.m.
on July 15, 2013, and 1:25 a.m. on July 16, 2013. Gulino
further testified that such an injury was often associated with a
clear and obvious incident, such as a car accident, and would not
have resulted from an everyday injury, such as an accidental
blow to the abdomen. Gulino testified that S.B. also suffered a
tear to her small bowel mesentery, which indicated a very strong
blow that was able to transmit force to the deep structures of
S.B.'s abdomen. Gulino further testified that S.B. had numerous
other injuries, including but not limited to, 11 broken ribs, a tibia
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which had been fractured and then re -fractured, multiple bite
marks, and scarring across her back.
Trial Court Opinion, filed 9/2/16, at 32.
Moreover, the trial court indicated:
Josephita testified that, on the day S.B. was killed,
[Appellant] punched and kicked S.B. and that, after [Appellant]
had stopped beating her, S.B. was no longer breathing.
Josephita further testified that [Appellant] bit S.B. on her bottom
lip during the beating and that S.B. was dead by the time
[Appellant, who had left after the beating,] returned home and
took them to the hospital. Josephita testified that [Appellant]
frequently punched and kicked S.B., and had broken her leg
when he pushed her down the stairs. Josephita further testified
that [Appellant] hit S.B. with his belt buckle, causing the injuries
to her back, but she did not stop [Appellant] from abusing S.B.
because she was afraid of him and felt ashamed.
***
[Head Start Learning Tree employee, Ashamalanda
Rooney,] testified that in June 2013 she noticed S.B. had
extensive, deep wounds to her back which were consistent with
being hit by a belt and she photographed the injuries. Rooney
further testified that S.B. had broken her leg and had gotten the
cast off her leg the week before she started at her daycare.
Rooney stated that S.B. had a slight limp when the cast initially
came off but had a much more severe limp when she came back
to daycare the following Monday, to the point where she was in
pain while sitting down....[Detective Kimberly Organ] testified
that [Appellant's] explanations for where he was at the time of
the murder were not credible and were directly contradicted by
the information taken from Josephita's cell phone....
[T]here was a great deal of evidence proving that
[Appellant] engaged in a pattern of abuse against S.B.,
culminating in an episode wherein [Appellant] hit S.B. so hard
that he lacerated her liver and small bowel mesentery, causing
her to bleed to death. In doing so, [Appellant] displayed the
requisite level of malice, that is wickedness of disposition,
hardness of heart, recklessness of consequences, and a mind
regardless of social duty. At the time of her death, S.B. was
only [four] -years -old and weighed only 36 pounds. Nonetheless,
[Appellant] subjected her to a prolonged torture and ultimately
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killed her in an attack of such ferocity that Gulino likened her
injuries and impact upon her body to having been hit by a car.
***
[Commonwealth witness Tracey Cobb, who is Josephita's
mother,] testified that [Appellant] lied to her about how S.B.
broke her leg while Josephita remained silent. Multiple
witnesses testified that Josephita lied and offered numerous
explanations for S.B.'s various injuries....Josephita testified that
she beat S.B. with the handle of a broom and that she told S.B.
to lie about how she sustained the injuries. Rooney testified that
both [Appellant] and Josephita lied to her about how S.B.
sustained the injuries to her back. Thus, the evidence tended to
show that both [Appellant] and Josephita physically abused S.B.
over the course of months and entered into an agreement with
each other to lie about the course of S.B.'s injuries so that they
could continue to abuse her. S.B.'s eventual death at the hands
of [Appellant] was a natural and probable consequence of that
agreement to cover up her abuse.
Id. at 32-33, 35-36.
We agree with the trial court's reasoning in this regard, and we reject
Appellant's challenges to the sufficiency of the evidence with regard to his
convictions for third-degree murder and conspiracy. See Murphy, supra;Devine, supra.Additionally, we likewise reject Appellant's claim the evidence was
insufficient to prove that he was S.B.'s guardian, responsible for her
supervision, or otherwise violated any duty of care as required for EWOC.
In Pennsylvania, "[a] parent, guardian, or other person supervising
the welfare of a child under 18 years of age...commits an offense if he
knowingly endangers the welfare of the child by violating the duty of care,
protection, or support.' Commonwealth v. Leatherby, 116 A.3d 73, 81
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(Pa.Super. 2015) (quoting 18 Pa.C.S.A. § 4304(a)). As the trial court
indicated herein,
[m]ultiple witnesses testified that [Appellant] lived with S.B. and
her mother, Josephita, in multiple homes across South and
Southwest Philadelphia. Cobb testified that, after Josephita and
[Appellant] moved in together, Josephita had a baby, A.G., who
they raised with S.B. [Appellant's cousin] testified that S.B.
referred to [Appellant] as "Daddy." Rooney testified that
[Appellant] would occasionally pick S.B. up from daycare. Thus,
the evidence showed that [Appellant] was in a father -figure
position to S.B. and had a corresponding duty of care.
Trial Court Opinion, filed 9/2/16, at 38.
As this Court has previously stated, "[i]n an age when nontraditional
living arrangements are commonplace, it is hard to imagine that the
common sense of the community would serve to eliminate adult persons
residing with a non -custodial child from the scope of a statute protecting the
physical and moral welfare of children." Leatherby, 116 A.3d at 81
(quotation omitted). Accordingly, we find no merit to Appellant's sufficiency
claim with regard to his conviction for EWOC.
In his next issue, Appellant contends that he is entitled to a new trial
as a result of the trial court's pretrial ruling that granted the
Commonwealth's motion to admit evidence of Appellant's other crimes
and/or bad acts, i.e., Appellant's prior abuse of S.B., A.G., Sean B., and
Josephita. With respect to the pretrial ruling by the trial court as to the
admissibility of the evidence, the following standard of review applies:
On appeals challenging an evidentiary ruling of the trial court,
our standard of review is limited. A trial court's decision will not
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be reversed absent a clear abuse of discretion. Abuse of
discretion is not merely an error of judgment, but rather where
the judgment is manifestly unreasonable or where the law is not
applied or where the record shows that the action is a result of
partiality, prejudice, bias or ill will.
Commonwealth v. King, 959 A.2d 405, 411 (Pa.Super. 2008) (citation,
quotation, and quotation marks omitted).
It is well settled that:
Generally, evidence of prior bad acts or unrelated criminal
activity is inadmissible to show that a defendant acted in
conformity with those past acts or to show criminal propensity.
Pa.R.E. 404(b)(1). However, evidence of prior bad acts may be
admissible when offered to prove some other relevant fact, such
as motive, opportunity, intent, preparation, plan, knowledge,
identity, and absence of mistake or accident. Pa.R.E. 404(b)(2).
In determining whether evidence of other prior bad acts is
admissible, the trial court is obliged to balance the probative
value of such evidence against its prejudicial impact.
Commonwealth v. Aikens, 990 A.2d 1181, 1185 (Pa.Super. 2010)
(quotation and citation omitted). Additionally, evidence of prior crimes and
bad acts may be admitted where the acts were part of a chain or sequence
of events that formed the history of the case and were part of its natural
development. Commonwealth v. Powell, 598 Pa. 224, 956 A.2d 406(2008).
In explaining the reason for its pretrial ruling, the trial court indicated
the following:
With regard to the prior instances of abuse between
[Appellant] and S.B., the evidence was admissible both to
establish the chain of events and pattern of abuse that
eventually led to S.B.'s death as well as to show both
[Appellant's] intent and malice towards S.B. As to the evidence
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of prior acts of abuse towards A.G. and Sean [B.], the evidence
was admissible both to show [Appellant's] absence of mistake in
causing S.B.'s death as well as to show a common scheme or
plan. In all three instances, the victim was a young child in a
filial relationship with [Appellant] that [Appellant] punched,
scratched and/or hit. Furthermore, the instances of abuse
towards all three children took place [close in time] with one
another. With regard to the prior instances of abuse involving
Josephita, the evidence was admissible to explain why Josephita
did not report [Appellant's] abuse of S.B. to any authorities and
why she lied to multiple individuals about the cause of S.B.'s
injuries and eventual death, [thus also forming the chain of
events leading to S.B.'s death].
Trial Court Opinion, filed 9/2/16, at 42.
Further, in balancing the probative value of the evidence against its
prejudicial impact, the trial court noted that the trial court is not "required to
sanitize the trial to eliminate all unpleasant facts from the jury's
consideration[.]" Id. at 40 (quotation marks and quotation omitted). We
find no abuse of discretion and conclude the trial court properly admitted the
evidence at issue.4
4 Appellant also contends the trial court erred in admitting evidence that
Appellant punched Daren Taylor during a graduation ceremony. We agree
with the trial court that, assuming, arguendo, Appellant has not waived this
claim, and the evidence should not have been admitted, such error was
harmless. "The sole reference to [Appellant's] prior act involving Daren
Taylor occurred during [Ms.] Cobb's testimony. Given the otherwise
overwhelming amount of evidence which implicated [Appellant] in S.B.'s
death, such a de minimis and isolated reference to an unrelated incident is
not likely to have contributed to the jury's verdict." Trial Court Opinion, filed
9/2/16, at 42. See Commonwealth v. Robinson, 554 Pa. 293, 721 A.2d
344 (1998) (defining harmless error).
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In his next issue, Appellant contends he is entitled to a new trial as a
result of the trial court's pretrial ruling that granted the Commonwealth's
motion to admit the prior out -of -court statements of Sean B. In the case
sub judice, the Commonwealth filed a pretrial motion seeking to permit
Detective Laura Hammond and Ms. Cobb to testify about statements made
to them by Sean B. regarding Appellant's assaultive conduct towards him.5
The Commonwealth asserted that such testimony would be admissible under
the "tender years" hearsay exception pursuant to 42 Pa.C.S.A. § 5985.1.
The trial court held an in camera hearing on December 17, 2015, and
held the matter under advisement. Subsequently, at trial, the trial court
granted the Commonwealth's motion and permitted the witnesses to testify
about Sean B.'s statements. See N.T., 1/27/16, at 67-68 (granting
motion); 98-105 (Detective Hammond testifying about interview with Sean
B. wherein he described assaultive behavior by Appellant); 119-20 (Ms.
Cobb testifying about statements Sean B. said to her regarding Appellant's
assaultive behavior). Appellant contends that this was error since Sean B.'s
prior statements were not relevant and did not have a sufficient indicia of
5
Forinstance, the Commonwealth indicated, and Ms. Cobb later testified,
that, prior to S.B.'s death, Sean B. told Ms. Cobb that Appellant "hit him."
See N.T., 1/27/16, at 119-20. Further, Detective Hammond testified that,
as part of the investigation into S.B.'s death, she interviewed Sean B., who
told her that Appellant had "hit him in the head," and on a different
occasion, scratched him under his left eye, causing Sean B. to say "ouch."
N.T., 1/27/16, at 97-104.
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reliability, including the lack of spontaneity, the lack of terms expected of a
child of his age, and the existence of a motive to fabricate.
In reviewing the admissibility of evidence, "an appellate court may
only reverse upon a showing that the trial court abused its discretion. An
abuse of discretion is not a mere error in judgment but, rather, involves
bias, ill will, partiality, prejudice, manifest unreasonableness, or
misapplication of law." Commonwealth v. Cox, 115 A.3d 333, 336
(Pa.Super. 2015) (en banc) (citations omitted).
The Pennsylvania Rules of Evidence define hearsay as "a statement
that (1) the declarant does not make while testifying at the current trial or
hearing; and (2) a party offers into evidence to prove the truth of the matter
asserted in the statement." Pa.R.E. 801(c). "Hearsay is not admissible
except as provided by [the Pennsylvania Rules of Evidence], by other rules
prescribed by the Pennsylvania Supreme Court, or by statute." Pa.R.E. 802.
The Tender Years Act, 42 Pa.C.S.A. § 5985.1, creates an exception to
the hearsay rule for young victims and witnesses. Specifically, the tender
years exception provides for the admissibility of certain statements that
otherwise may be considered hearsay, as follows:
(a) General rule.-An out -of -court statement made by a child
victim or witness, who at the time the statement was made was
12 years of age or younger, describing any of the offenses
enumerated in 18 Pa.C.S. Chs....27 (relating to assault)..., not
otherwise admissible by statute or rule of evidence, is admissible
in evidence in any criminal or civil proceeding if:
(1) the court finds, in an in camera hearing, that the
evidence is relevant and that the time, content and
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circumstances of the statement provide sufficient indicia of
reliability; and
(2) the child either:
(i) testifies at the proceeding; or
(ii) is unavailable as a witness.
42 Pa.C.S.A. § 5985.1(a).
A statement admitted under the tender years exception must possess
sufficient indicia of reliability, as determined from the time, content, and
circumstances of its making. Commonwealth v. O'Drain, 829 A.2d 316,
320 (Pa.Super. 2003) (citation omitted). As our Supreme Court has opined:
The [Tender Years Act] concerns the admissibility of out -of -court
statements made by a child victim or witness to third parties.
The admissibility of this type of hearsay is determined by
assessing the particularized guarantees of trustworthiness
surrounding the circumstances under which the statements were
uttered to the person who is testifying. To determine whether a
child's out -of -court statements are admissible under the [Tender
Years Act], a trial court must assess the relevancy of the
statements and their reliability in accordance with the test
enunciated in Idaho v. Wright, [497 U.S. 805 (1990)].
Although the test is not exclusive, the most obvious factors to be
considered include the spontaneity of the statements,
consistency in repetition, the mental state of the declarant, use
of terms unexpected in children of that age and the lack of a
motive to fabricate.
Commonwealth v. Walter, 625 Pa. 522, 539, 93 A.3d 442, 451 (2014)
(quotation marks and quotations omitted).
In the case sub judice, Sean B. testified at trial. Therefore, the only
issue was whether the Walter test was satisfied. In determining that it was
satisfied by the Commonwealth, the trial court explained as follows:
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Sean [B.] was 6 years old at the time he gave statements,
[he] testified at trial[,] and his statements described an assault
by [Appellant]. Moreover, his statements were relevant, as they
showed [Appellant's] common scheme of abusing children under
his care and [the] absence of mistake in S.B.'s death. [Sean
B.'s] statements were reliable, consistent, spontaneous,
contained terms expected to be used by a child of his age, and
indicated a lack of motive to fabricate.
Trial Court Opinion, filed 9/2/16, at 44.
We find no abuse of discretion. See Cox, supra. In this regard, we
conclude that Sean B.'s statements of Appellant's assaultive conduct towards
him were relevant for the reasons provided by the trial court. Further, the
facts amply demonstrate that the time, content, and circumstances of Sean
B.'s statements provided sufficient indicia of reliability.
For instance, Sean B. made his statements initially spontaneously to
Ms. Cobb, who was his grandmother, prior to the death of S.B. Ms. Cobb
then responded appropriately by discussing the matter with Josephita and
filing a private criminal complaint against Appellant. N.T., 1/27/16, 120-23.
Moreover, Sean B. later repeated the statements to Detective Hammond
after the death of S.B. Further, Sean B. used age -appropriate language and
indicated no motive to fabricate. Accordingly, we conclude the trial court
properly ruled that Sean B.'s prior out -of -court statements of abuse by
Appellant were admissible under the tender years hearsay exception. See
Walter, supra.In his next issue, Appellant contends that he is entitled to a new trial
as a result of the trial court's failure to grant his challenges for cause as to
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prospective jurors number 12 and 42. Appellant contends that the
questioning of both prospective jurors during voir dire revealed that the
jurors could not render a fair, impartial, and unbiased verdict.
A criminal defendant's right to an impartial jury is explicitly
guaranteed by Article I, section 9 of the Pennsylvania
Constitution. The jury selection process is crucial to the
preservation of that right....
It must be remembered the purpose of the voir dire
examination is to provide an opportunity to counsel to assess the
qualifications of prospective jurors to serve. It is therefore
appropriate to use such an examination to disclose fixed opinions
or to expose other reasons for disqualification. Thus, the inquiry
must be directed at ascertaining whether the venireperson is
competent and capable of rendering a fair, impartial, and
unbiased verdict. The law also recognizes that prospective
jurors were not cultivated in hermetically sealed environments
free of all beliefs, conceptions, and views. The question relevant
to a determination of qualification is whether any biases or
prejudices can be put aside upon the proper instruction of the
court.
A challenge for cause to service by a prospective juror
should be sustained and that juror excused where that juror
demonstrates through his conduct and answers a likelihood of
prejudice. The decision whether to disqualify a venireman is
within the discretion of the trial court and will not be disturbed
on appeal absent a palpable abuse of that discretion.
Stated another way, the test of disqualification is the
juror's ability and willingness to eliminate the influence of his
scruples and render a verdict according to the evidence. This
determination is to be made by the trial judge based on the
juror's answers and demeanor and will not be reversed absent a
palpable abuse of discretion.
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Commonwealth v. Penn, 132 A.3d 498, 502 (Pa.Super. 2016) (footnote,
citations, quotation marks, and quotations omitted).6
Here, the record reveals Appellant challenged prospective jurors 12
and 42 for cause. Specifically, Appellant challenged prospective juror 12 for
cause after the juror indicated that he was not sure whether he could be
fully objective given the fact that the victim was a young child. N.T.,
1/26/16, at 60-63. Appellant challenged prospective juror 42 for cause after
the juror indicated that he believed it would be strange if a defendant did
not attempt to defend himself in trial given the nature of the charges. Id. at
174-80. After the trial court denied both challenges for cause, Appellant
used peremptory challenges to strike both prospective jurors. Id. at 64,
181.
In explaining the reasons it did not grant Appellant's challenges for
cause as to prospective jurors 12 and 42, the trial court indicated the
following:
Although both jurors initially expressed opinions which
indicated a possible difficulty in weighing the evidence and
arriving at a verdict impartially, their answer to subsequent
questioning by [the trial court] showed their willingness to
6
We note that a challenge for cause should also be granted "when the
potential juror has such a close relationship, be it familial, financial or
situational, with parties, counsel, victims, or witnesses, that the court will
presume the likelihood of prejudice.' Penn, 132 A.3d at 502 n.4 (quotation
omitted). However, there is no indication that the prospective jurors at
issue maintained a relationship such that the court must presume a
likelihood of prejudice.
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eliminate the influence of their scruples and render a verdict
according to the evidence. [For instance,] [a]fter prospective
juror 12 indicated his discomfort with the fact that the victim
was a young child, the following exchange took place:
THE COURT: [W]e would ask you to be able to set
aside any feelings you might have about these
charges and be fair to both sides. Clean sheet of
paper. Nothing on it. You haven't heard any
testimony. Seen any exhibits. Be fair to both sides?
Can you do that?
PROSPECTIVE JUROR 12: Yes, I can
Id. at 58-59. Furthermore, after the issue was revisited during
[Appellant's] examination of the [prospective] juror, and after
the [trial court] had informed prospective juror 12 about the
duties of a juror, the following exchange took place,
THE COURT: Knowing that is what you have to do,
can you set aside any initial feelings you might have
about what I have read to you, because you haven't
heard anything yet, and make your decision based
upon the testimony and evidence that is presented
to you during the course of the trial only?
PROSPECTIVE JUROR 12: I believe that I can, yes.
Id. at 62. Thus, prospective juror 12 indicated that he was
capable of eliminating any initial discomfort he may have felt and
of rendering a fair, impartial, and unbiased verdict. Therefore,
the [trial court] did not err when it did not dismiss prospective
juror 12 for cause.
Moreover, while prospective juror 42 initially expressed
surprise that a defendant in a murder case would not try to
defend himself, he nonetheless readily indicated that he would
be able to follow the applicable law and arrive at a fair and
impartial verdict. Specifically, after the prospective juror
expressed his surprise, the following exchange took place,
THE COURT: Well, I know that, generally speaking
some people would think that if they were charged
with such a crime, they would want to have
something to say, but the law in the United States,
in all 50 states, is that the defendant doesn't have to
do anything, or say anything, or put on any
testimony, or put on any evidence. Because it's the
Commonwealth's burden of proof that the defendant
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is guilty beyond a reasonable doubt. It's their
choice. It's not the choice of any of the rest of us.
It's the defendant's choice, his choice alone, whether
or not to say or do anything in the case.
Understanding that is the law, can you follow the
law?
PROSPECTIVE JUROR 42: Sure. I can follow the law.
Id. at 172. Further questioning on the subject by defense
counsel and the district attorney confirmed that the prospective
juror understood the Commonwealth's burden of proof and
would be able to render a fair and impartial verdict accordingly.
Id. at 174-80. Thus, the [trial court] did not err when it did not
dismiss prospective juror 42 for cause.
Trial Court Opinion, filed 9/2/16, at 46-47 (quotation marks omitted).
We agree with the trial court's well -reasoned analysis and find no
abuse of discretion in denying Appellant's challenges for cause as to
prospective jurors 12 and 42. See Penn, supra.In his next issue, Appellant contends that he is entitled to a new trial
as a result of the trial court's restriction on his cross-examination of
Commonwealth witness Tracey Cobb concerning an allegedly false allegation
of rape Josephita made against Cobb's husband on Facebook. See N.T.,
1/27/16, 158-81. Citing to Pa.R.E. 607(b), Appellant contends that he
should have been permitted to cross-examine Ms. Cobb about the allegation
since it impeached Josephita's credibility and tended to show that she
blamed other people for her own conduct.
We find the following Pennsylvania Rules of Evidence to be relevant:
Rule 607. Who May Impeach a Witness, Evidence to
Impeach a Witness
***
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(b) Evidence to Impeach a Witness. The credibility of a
witness may be impeached by any evidence relevant to that
issue, except as otherwise provided by statute or these rules.
Pa.R.E. 607.
Rt.!2 508. A Witness's Character for Truthfulness or
UntruthfCriess
***
(b) Specific Instances of Conduct. Except as provided in Rule
609 (relating to evidence of conviction of crime),
(1) the character of a witness for truthfulness may not be
attacked or supported by cross-examination or extrinsic evidence
concerning specific instances of the witness' conduct; however,
(2) in the discretion of the court, the credibility of a witness who
testifies as to the reputation of another witness for truthfulness
or untruthfulness may be attacked by cross-examination
concerning specific instances of conduct (not including arrests)
of the other witness, if they are probative of truthfulness or
untruthfulness; but extrinsic evidence thereof is not admissible.
Pa.R.E. 608.
In explaining the reasons it sustained the Commonwealth's objection
to Appellant's cross-examination of Ms. Cobb, the trial court indicated the
following:
The Commonwealth argued...that [the allegation] was a
collateral issue which was highly prejudicial and that [Appellant]
was asking one witness to give her opinion on the credibility of
another witness when determinations of credibility were the sole
province of the jury....
[The trial court] did not err when it did not allow
[Appellant] to cross-examine [Ms.] Cobb regarding a rape
allegation made by Josephita over Facebook against [Ms.] Cobb's
husband. As [Appellant] was seeking to offer evidence for
purposes of attacking the credibility of a witness who testified
(Josephita), the admissibility of such evidence was governed by
Pa.R.E. 608 and proof of specific incidents of conduct, such as a
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particular allegation made during a conversation over Facebook,
by either cross-examination or extrinsic evidence was prohibited.
Trial Court Opinion, filed 9/2/16, at 48-49. We find no abuse of discretion in
this regard. See Commonwealth v. Birch, 532 Pa. 563, 616 A.2d 977(1992) (indicating scope and limits of cross-examination are within the
discretion of the trial court and will not be disturbed absent an abuse of that
discretion).
In his next issue, Appellant contends that he is entitled to a new trial
as a result of the trial court's denial of his motion for a mistrial after the
prosecutor commented upon the redirect examination of Commonwealth
witness Dr. Lawrence Dobrin that she had to address "some of the
irrelevances we were just subjected to for the past 20 minutes." Appellant
contends that the prosecutor's statement constituted prosecutorial
misconduct requiring a new trial.
The legal principles relevant to a claim of prosecutorial
misconduct are well established. Comments by a prosecutor
constitute reversible error only where their unavoidable effect is
to prejudice the jury, forming in [the jurors'] minds a fixed bias
and hostility toward the defendant such that they could not
weigh the evidence objectively and render a fair verdict.
Commonwealth v. Thomas, 618 Pa. 70, 79, 54 A.3d 332, 337-38 (2012)
(quotation omitted). A prosecutor is permitted to respond to defense
arguments with appropriate oratorical flair and not every unwise or
intemperate remark made by a prosecutor mandates the grant of a new
trial. Commonwealth v. Brown, 134 A.3d 1097 (Pa.Super. 2016).
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In the case at bar, at the commencement of the prosecutor's redirect
examination of Dr. Dobrin, the prosecutor stated, "I want to go back through
a few things to sort of, I guess, point out some of the irrelevances we were
just subjected to for the past 20 minutes." N.T., 12/1/16, at 81. Defense
counsel moved for a mistrial on the basis the statement was highly
prejudicial and unprofessional. Id. at 82. The prosecutor responded:
Respectfully, Your Honor, I was prefacing where I was about to
go, which was the fact that we just had about six questions that
had nothing to do with the actual doctor's testimony. So I was
trying to focus back on the things that actually had something to
do with the doctor's testimony. We talked about DNA,
fingerprints. We talked about the entire universe of the world.
None of which had anything to do with why the doctor is here
and qualified to testify. I was just trying to focus us back to why
he's here.
Id. at 82-83. The trial court denied defense counsel's request for a mistrial.
Id. at 83.
In explaining the reasons for its ruling, the trial court relevantly
indicated the following:
[T]he prosecutor's comments were merely oratorical flair made
in fair response to [Appellant's] cross-examination of [Dr.]
Dobrin. Despite [Dr.] Dobrin being called to testify as to his role
in comparing the photographs of [Appellant's] teeth to the bite
marks on S.B.'s body, [Appellant] cross-examined him as to how
and when S.B.'s autopsy photographs were taken, a hypothetical
database containing the dental impressions of everyone in the
country, DNA evidence, fingerprint evidence, and the subjectivity
of [Dr.] Dobrin's opinion. All of these subjects had little or no
relevance to [Dr.] Dobrin's testimony on direct examination or
his credibility as a witness and served only to distract the jury
from evidence offered by [Dr.] Dobrin. Thus, the prosecutor's
remark was fair response to [Appellant's] obfuscation of the
evidence which incorporated oratorical flair to redirect the jury's
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attention back to the actual evidence presented. Furthermore,
given the voluminous amount of evidence which implicated
[Appellant] in S.B.'s death, this isolated and minor comment by
the prosecutor [did not] have...the unavoidable effect of
prejudicing the jury so that they could not weigh the evidence
objectively and render a fair verdict.
Trial Court Opinion, filed 9/2/16, at 51. We agree with the trial court's
reasoning and find no relief is due. See Thomas, supra.In his final issue, Appellant contends that the imposition of separate
sentences for the crimes of third-degree murder, EWOC, and aggravated
assault amounted to an illegal sentencing scheme, as the court was bound to
merge the latter two crimes as lesser -included offenses of third-degree
murder. "A claim that the trial court imposed an illegal sentence by failing
to merge sentences is a question of law. Accordingly, our standard of review
is plenary." Commonwealth v. Snyder, 870 A.2d 336, 349 (Pa.Super.
2005) (quotation marks and quotation omitted).
We begin our examination of Appellant's merger claim by reviewing
the statutory provisions pertinent to his underlying convictions.
Regarding third-degree murder, the Crimes Code relevantly provides
that "[a]ll other kinds of murder shall be murder of the third-degree." 18
Pa.C.S.A. § 2502(c). Section 2502(c) does not set forth the requisite mens
rea for third-degree murder, however, Section 302(c) of the Crimes Code
provides that "[w]hen the culpability sufficient to establish a material
element of an offense is not prescribed by law, such element is established if
a person acts intentionally, knowingly or recklessly with respect thereto." 18
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Pa.C.S.A. § 302(c). "To convict a defendant of the offense of third-degree
murder, the Commonwealth need only prove that the defendant killed
another person with malice aforethought." Commonwealth v. Fisher, 622
Pa. 366, 375, 80 A.3d 1186, 1191 (2013) (quotation and citation omitted).
Regarding EWOC, the Crimes Code relevantly provides that "[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.A. 4304(a)(1).
Finally, regarding aggravated assault, the Crimes Code relevantly
provides that "[a] person is guilty of aggravated assault if he: (1) attempts
to cause serious bodily injury to another, or causes such injury intentionally,
knowingly or recklessly under circumstances manifesting extreme
indifference to the value of human life[.]" 18 Pa.C.S.A. § 2702(a)(1).
Regarding the merger of sentences, the legislature has provided that:
No crimes shall merge for sentencing purposes unless the crimes
arise from a single criminal act and all of the statutory elements
of one offense are included in the statutory elements of the
other offense. Where crimes merge for sentencing purposes, the
court may sentence the defendant only on the higher graded
offense.
42 Pa.C.S.A. § 9765. "The statute's mandate is clear. It prohibits merger
unless two distinct facts are present: 1) the crimes arise from a single
criminal act; and 2) all of the statutory elements of one of the offenses are
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included in the statutory elements of the other." Commonwealth v.
Baldwin, 604 Pa. 34, 39, 985 A.2d 830, 833 (2009).
When considering whether there is a single criminal act or
multiple criminal acts, the question is not "whether there was a
'break in the chain' of criminal activity." The issue is whether
"the actor commits multiple criminal acts beyond that which is
necessary to establish the bare elements of the additional crime,
then the actor will be guilty of multiple crimes which do not
merge for sentencing purposes."
Commonwealth v. Pettersen, 49 A.3d 903, 912 (Pa.Super. 2012)
(quotations omitted).
"In determining whether two or more convictions arose from a single
criminal act for purposes of sentencing, we must examine the charging
documents filed by the Commonwealth." Commonwealth v. Martinez,
153 A.3d 1025, 1030-31 (Pa.Super. 2016) (citing Commonwealth v.
Jenkins, 96 A.3d 1055, 1060 (Pa.Super. 2014) (holding that we must
determine whether the appellant's actions constituted a single criminal act,
with reference to elements of the crime as charged by the Commonwealth)).
See Commonwealth v. Kimmel, 125 A.3d 1272, 1276 (Pa.Super. 2015)
(en banc) (concluding merger of DUI charges and felony fleeing did not
merge where the affidavit of probable cause supplied the factual narrative
of the appellant's DUI stop and subsequent flight -by -vehicle from the scene
of the stop).
Initially, turning first to an analysis of the second portion of the
Section 9765 merger test, we conclude that third-degree murder does not
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subsume all of the statutory elements of EWOC. As indicated supra, the
mens rea for third-degree murder is malice. See Marquez, supra.However, the mens rea for EWOC is a knowing violation of a duty of care,
protection, or support. Commonwealth v. Cottam, 616 A.2d 988(Pa.Super. 1992); 18 Pa.C.S.A. § 4303(a)(1). Further, whereas third-
degree murder does not require proof of the victim's age, EWOC requires
proof that the victim is "a child under 18 years of age." 18 Pa.C.S.A. §
4303(a)(1). Consequently, we conclude that Appellant's conviction for
EWOC does not merge with third-degree murder as "all of the statutory
elements of...the offense are [not] included in the statutory elements of the
other." Baldwin, 604 Pa. at 39, 985 A.2d at 833.7
With regard to whether third-degree murder subsumes aggravated
assault, our Supreme Court has held that aggravated assault is a lesser -
included offense of third-degree murder. See Commonwealth v.
Musselman, 483 Pa. 245, 396 A.2d 625 (1979). However, upon review of
the information, criminal complaint, and affidavit of probable cause filed in
We note that EWOC does not merge with aggravated assault for sentencing
purposes under the elements portion of the Section 9765 merger test. See
Commonwealth v. Baker, 963 A.2d 495 (Pa.Super. 2008) (holding that
merger of EWOC with aggravated assault was not warranted as all statutory
elements of one offense did not coincide with elements of other offense).
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the instant matter, we conclude the first portion of the Section 9765 merger
test has not been met.
Here, the information listed the offense date of July 16, 2013, for each
of the offenses and set forth a generic recitation of the statutory elements
for each offense. However, in the criminal complaint, Detective Gary White
indicated "[a]t 2220 S. 56th Street, [Appellant] intentionally, knowingly,
recklessly, or negligently caused the death of S.B., age 4, by punching,
kicking, and biting her multiple times on multiple occasions." Criminal
Complaint, dated 9/20/13 (emphasis added). Moreover, in the affidavit of
probable cause, Detective White averred the following:
On Tuesday, July 16, 2013, at 2:50 a.m., police responded
to [CHOP] for a report of a deceased child with suspicious
injuries. Upon their arrival, police at this location were informed
by the hospital staff that [S.B.], 4 [years old], was transported
to the hospital by her mother, Josephita [ ], and was
unresponsive and not breathing. The child was pronounced
dead...by Dr. Posner who observed numerous old and new
bruising to the face, back, neck and bite marks.
There was a post-mortem examination performed on the
remains of the decedent on 7/16/13 by Dr. Lieberman at the
City of Philadelphia Medical Examiner's Office. Dr. Lieberman
determined that based on his findings that the cause of death
was a laceration to the liver caused by abdominal blunt force
trauma and the manner of death is Homicide.
A witness known to the Commonwealth of Penna and will
be available at all court proceedings related the following in a
summary to Detectives Crystal Williams [ ] and Gary White [ ] in
the presence of her/his attorney, David Rudenstein, Esquire.
The witness stated that on the night before the decedent was
taken to the hospital he/she observed [Appellant] 26 [years old]
punching the decedent in her back inside of 2220 S. 56th Street.
The witness stated that he/she tried to block [Appellant] from
hitting the decedent and she/he was also hit by his punches.
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He/she stated that [Appellant] then left the residence and came
back later. The witness stated that she/he was in the kitchen
when she/he heard the decedent crying in the living room.
He/she went into the living room and saw the decedent crying.
He/she also observed [Appellant] with both of his hands up and
they were in a fist and he put them down real fast. He/she
stated that she asked the decedent what was wrong and she
said, "My tummy hurts." The witness stated that the decedent
started breathing hard and he/she got into [Appellant's] vehicle
and [Appellant] drove them to [CHOP] where he dropped them
off. He/she learned that the decedent had died from the hospital
staff. The witness stated that [Appellant] would beat the
decedent every time that he would be angry with her and that
[Appellant] had broke the decedent's leg on one occasion.
On July 25, 2013, Dr. Dobrin, Chief Forensic Dentist,
photographed the teeth of [Appellant] because [Appellant] would
not allow impressions or wax bite of his teeth, but finally did
allowed [sic] the photographs on a court order signed by Judge
Lerner. Dr. Dobrin stated that as a result of his examination it is
his opinion to a reasonable degree of medical certainty that the
bite marks present on the decedent were produced by the
dentition of [Appellant].
Affidavit of Probable Cause, dated 9/20/13.
This description comports with Josephita's trial testimony, as
summarized by the trial court:
Josephita testified that, on the day S.B. was murdered, she was
in the kitchen cooking when she and [Appellant] had an
argument about her infidelity. Josephita further testified that
[Appellant] was angered by Josephita's cheating and began
punching and kicking S.B. Josephita stated that she did not tell
him to stop because she was afraid and ashamed. Josephita
further stated that the beating eventually stopped and
[Appellant] left but then returned and started beating S.B. again.
Josephita testified that she could hear S.B.'s screams from the
kitchen and that, when she went to the living room, she saw that
S.B. had a bite mark on her bottom lip. Josephita stated that
she asked [Appellant] why he had bit S.B. but [Appellant] did
not respond. Josephita further stated that, after the second
beating stopped, [Appellant] left and S.B. was no longer
breathing.
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Trial Court Opinion, filed 9/2/16, at 9-10.
Applying pertinent authority, it is apparent from the criminal
information, complaint, and affidavit of probable cause, as well as later
reflected in the trial testimony, that the Commonwealth alleged criminal acts
that constituted aggravated assault as distinct or delineated from the
conduct that constituted third-degree murder. That is, the criminal
complaint indicated Appellant "punch[ed], kick[ed], and bit[ ] [S.B.] multiple
times on multiple occasions." Criminal Complaint, dated 9/20/13 (emphasis
added). Further, the affidavit of probable cause describes the operative
facts in such a way as to distinguish the specific conduct underlying the
offense of aggravated assault (the beating which occurred prior to Appellant
leaving the house with S.B. still alive) and the offense of third-degree
murder (the beating which occurred after Appellant returned to the house
resulting in S.B.'s "tummy hurting" and death). See Pettersen, 49 A.3d at
912 (holding merger is not required where "the actor commits multiple
criminal acts beyond that which is necessary to establish the bare elements
of the additional crime") (quotation omitted)). Thus, we conclude the
offenses of aggravated assault and third-degree murder were separate
criminal acts for purposes of avoiding merger at sentencing. See Kimmel,
supra; Jenkins, supra.For all of the foregoing reasons, we affirm the judgment of sentence.
Affirmed.
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Judgment Entered.
J seph D. Seletyn,
Prothonotary
Date: 5/8/2017
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