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