Com. v. Bacorn, P.

• Court: Superior Court of Pennsylvania
• Decided: January 27, 2023
• Docket: 821 WDA 2021
• Status: Unpublished

Opinion

J-S20043-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : PAUL BACORN : : Appellant : No. 821 WDA 2021

Appeal from the Judgment of Sentence Entered July 6, 2021 In the Court of Common Pleas of Mercer County Criminal Division at No(s): CP-43-CR-0002189-2019

BEFORE: NICHOLS, J., MURRAY, J., and KING, J.

MEMORANDUM BY KING, J.: FILED: JANUARY 27, 2023

Appellant, Paul Bacorn, appeals from the judgment of sentence entered

in the Mercer County Court of Common Pleas, following his jury trial

convictions for first-degree murder, conspiracy to commit murder, aggravated

assault, conspiracy to commit aggravated assault, endangering the welfare of

a child (“EWOC”), conspiracy to commit EWOC, and tampering with or

fabricating physical evidence.1 We affirm.

In its opinion, the trial court accurately set forth the relevant facts and

procedural history of this case as follows:

On the morning of October 24, 2019 Mercer Pennsylvania State Police responded to a medical call for an unresponsive 14-year-old male. A.J.G. Jr. (“victim”) was found lying on a tarp on the floor and determined to be deceased by EMTs. ____________________________________________

1 18 Pa.C.S.A. §§ 2502(a); 903; 2702(a)(1); 903; 4304; 903; and 4910, respectively. J-S20043-22

The victim had dirty, wet hair; racoon eye bruising; sunken cheeks; was emaciated; and extensive bruising on the exposed part of his body. According to the autopsy report, the victim died as a result of “hypovolemic shock secondary to multi-focal severe soft tissue hemorrhage which developed as a consequence of blunt force trauma, in concert with severe malnutrition, complicated by peri- mortem aspiration.” Both A.J.G. Sr. (“Co-Defendant”) and Appellant were interviewed by Mercer Pennsylvania State Police Trooper Joseph Snyder.

During Co-Defendant’s interview, he stated he had hosed the victim off as punishment before putting the victim in a “timeout” consisting of the victim standing in a corner with his arms above his head. [Co-defendant] further stated the victim had hit his head off a wall and outside off a cinder block. When asked about Appellant’s involvement, he disclosed that on numerous occasions Appellant had witnessed the various extreme forms of punishment inflicted upon the victim, including those punishments inflicted on October 24, 2019. According to Co-Defendant, at no point did Appellant render any aid to the victim, even as the victim lay dying on October 24, 2019. Appellant was stated to have punished the victim as well, primarily by withholding meals from the victim.

During Appellant’s interview, Appellant disclosed that he had known the Co-Defendant’s family for many years, describing himself as a caretaker for the victim and his sister. His primary duties in this role were cooking for Co- Defendant’s family and babysitting the victim and his sister. Not only did Appellant indicate awareness of the various extreme forms of punishment Co-Defendant inflicted on the victim, Appellant stated he would also punish the victim by depriving the victim of food and making the victim stand against the wall with his arms up for several hours. Appellant was also aware of the victim’s unhealthy decrease in weight yet stated that the victim would be deprived of food for a period of up to three days at a time with Appellant neither stopping Co-Defendant from inflicting this form of punishment nor providing the victim with nourishment despite being the cook [for] Co-Defendant’s family.

Appellant’s jury trial commenced on May 11, 2021 and

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ended May 14, 2021. After being found guilty on all counts, Appellant filed a post-verdict motion which was denied on May 25, 2021. Appellant was sentenced on July 6, 2021 [to life imprisonment for the murder conviction, and lesser sentences for some of the other crimes]. Appellant [timely] filed his Notice of Appeal of the sentence Order on July 13, 2021 and on August 11, 2021 filed [a] timely Statement of Errors Complained of on Appeal.

(Trial Court Opinion, filed 12/8/21, at 3-5) (internal citations omitted).

Appellant raises the following twelve issues for our review:

1. Whether the court erred as a matter of law or abused its discretion, when dismissing [Appellant’s] petition for habeas corpus on the count of murder in the first degree when the Commonwealth did not meet a prima facie case for murder in the first degree.

2. Whether the court erred as a matter of law or abused its discretion, when dismissing [Appellant’s] petition for habeas corpus on the count of conspiracy to commit murder in the first degree when the Commonwealth did not meet a prima facie case for conspiracy to commit murder in the first degree.

3. Whether the court erred as a matter of law or abused its discretion, when dismissing [Appellant’s] petition for habeas corpus on the count of aggravated assault when the Commonwealth did not meet a prima facie case for aggravated assault.

4. Whether the court erred as a matter of law or abused its discretion, when dismissing [Appellant’s] petition for habeas corpus on the count of conspiracy to commit aggravated assault when the Commonwealth did not meet a prima facie case for conspiracy to commit aggravated assault.

5. Whether the conviction of [Appellant] to murder in the first degree is in error since there was insufficient evidence to convict [Appellant] of murder in the first degree.

6. Whether the conviction of [Appellant] to conspiracy to commit murder in the first degree is in error since there was

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insufficient evidence to convict [Appellant] of conspiracy to commit murder in the first degree.

7. Whether the conviction of [Appellant] to aggravated assault is in error since there was insufficient evidence to convict [Appellant] of aggravated assault.

8. Whether the conviction of [Appellant] to conspiracy to commit aggravated assault is in error since there was insufficient evidence to convict [Appellant] of conspiracy to commit aggravated assault.

9. Whether the trial court erred as a matter of law or abused its discretion, when determining that the defense expert’s testimony on the reactions and actions of an abused child was not relevant, which prevented any counter to the Commonwealth’s expert who testified to the same.

10. Whether the trial court erred as a matter of law or abused its discretion, when denying [Appellant’s] motion for mistrial after a police officer testified on the Commonwealth’s behalf that, “The clothes were obtained from the prison,” which was in reference to a green stocking hat worn by [Appellant] that the jury would see in later video clips, and that this highly prejudiced the jury against [Appellant] since they then knew that [Appellant] was incarcerated and when this was brought up the Honorable Judge Yeatts said, “We’re talking about Murder in the First Degree, so I’m sure that the jury already thinks he’s in jail. It's harmless,” even further while having this discussion the District Attorney accidentally had his microphone on for the entire courtroom to hear this objection.

11. Whether the court erred as a matter of law or abused its discretion, when the court failed to remedy the fact that, during Commonwealth Witness Adam Peth’s testimony, neither the witnesses nor the jury’s screens were working to view digital photographs.

12. Whether the court erred as a matter of law or abused its discretion, when the trial court read the jury instruction of duty of care before the charges of aggravated assault, conspiracy to commit aggravated assault, murder in the first degree and conspiracy to commit murder in the first degree

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even though there is no element of duty of care to these offenses.

(Appellant’s Brief at 8-11).

As a preliminary matter, we emphasize that “where an appellate brief

fails to provide any discussion of a claim with citation to relevant authority or

fails to develop the issue in any other meaningful fashion capable of review,

that claim is waived.” Commonwealth v. Bradley, 232 A.3d 747, 756

(Pa.Super. 2020) (internal citation omitted). Here, Appellant cites no law

whatsoever in support of his ninth and eleventh issues on appeal. (See

Appellant’s Brief at 69-70, 72). Thus, we will not reach the merits of these

claims and consider them waived on appeal. See Bradley, supra.

With respect to Appellant’s issues five, six, seven, eight, ten, and

twelve, after a thorough review of the record, the briefs of the parties, and

the applicable law, we agree with the well-reasoned analysis set forth in the

trial court’s opinion. Specifically, concerning Appellant’s issues five through

eight, which challenge the sufficiency of the evidence to sustain his convictions

for murder, aggravated assault, and conspiracy to commit murder and

aggravated assault, the court evaluated those claims as follows. The

Commonwealth presented evidence that there was no medical explanation for

the victim’s severe malnourishment other than food restriction. The victim’s

body mass index manifested in a loss of underlying soft tissue, muscle, and

fat beneath the skin to the point of bone protrusion, which would not be seen

in individuals with a proper food intake. Appellant acknowledged his role as

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the primary cook for Co-Defendant’s family and that he and Co-Defendant

continually deprived the victim of food. The autopsy report revealed the cause

of death as blunt force trauma in conjunction with severe malnutrition.

Appellant failed to render aid to the victim, even when he was lying on the

floor in obvious discomfort on the day of his death. Appellant also told the

neighbor that the dog would eat before the victim would eat. On this record,

the Commonwealth presented sufficient evidence of Appellant’s deliberate

treatment of the victim to establish the requisite specific intent to kill to

sustain Appellant’s first-degree murder conviction.

Regarding conspiracy to commit murder, the trial court noted that

although Appellant and Co-Defendant’s family resided in different trailers on

the same property, Appellant had access to and casually moved about Co-

Defendant’s home.2 Thus, the evidence refuted Appellant’s attempt to

minimize his interactions inside Co-Defendant’s home. Further, Appellant

used the word “we” when discussing how long he and Co-Defendant would

deprive the victim of food. Appellant made other statements indicating he

knew that he could face consequences for mistreating the victim. In sum, the

evidence showed Appellant was an active participant with Co-Defendant in

____________________________________________

2 Appellant’s trailer did not have electric or running water, so Appellant and Co-Defendant ran an extension cord from Co-Defendant’s trailer to Appellant’s trailer. Appellant would prepare meals for Co-Defendant and Co-Defendant’s children on the propane stove in Appellant’s trailer and then take the food to Co-Defendant’s trailer to eat. Appellant also used the restrooms and running water from Co-Defendant’s trailer. (See N.T. Trial, 5/12/21, at 83-84).

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their plan to withhold food from the victim as a form of punishment.

With respect to aggravated assault and conspiracy to commit same, the

evidence showed that Appellant had boasted about punching the victim in

addition to Appellant’s statements about depriving the victim of food.

Although Appellant acknowledged that the victim was severely underweight,

Appellant still withheld food from the victim for up to three days at a time. To

prevent the victim from stealing food, Appellant and the Co-Defendant kept a

lock on the refrigerator and hid the key from the victim. This evidence

established that Appellant and Co-Defendant caused serious bodily injury to

the victim, resulting in the victim’s death by starvation, and that Appellant did

so intentionally, knowingly, or recklessly, manifesting extreme indifference to

the value of human life. (See Trial Court Opinion at 11-19).3

Regarding Appellant’s tenth issue challenging the court’s denial of his

motion for a mistrial after a Commonwealth witness testified that a stocking

hat worn by Appellant (which the jury would see him wearing in later videos)

was obtained from the prison, the court noted that Appellant did not

immediately move for a mistrial based on the allegedly prejudicial comment.

3 Based on our disposition of Appellant’s issues five through eight challenging the sufficiency of the evidence to sustain Appellant’s convictions, we need not address Appellant’s issues one through four challenging the sufficiency of the evidence introduced at the preliminary hearing. See Commonwealth v. Troop, 571 A.2d 1084 (Pa.Super. 1990), appeal denied, 526 Pa. 634, 584 A.2d 317 (1990) (explaining that failure to establish prima facie case at preliminary hearing is immaterial where Commonwealth met its burden at trial by proving offense beyond reasonable doubt).

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Thus, Appellant’s claim is arguably waived. Moreover, the court explained

that “[e]very unwise or irrelevant remark made in course of trial by a witness

does not compel a new criminal trial.” (Id. at 20). Here, the witness’s passing

improper remark would not have warranted a new trial even if the claim was

properly preserved. Further, the court issued a cautionary instruction to the

jurors to disregard any portion of the discussion that occurred while the

microphones were still turned on. (Id. at 20-22).

With respect to Appellant’s final issue challenging the court’s jury

instructions, the trial court explained that when “a person is placed in control

and supervision of a child, that person has assumed such a status relationship

to the child so as to impose a duty to act.” (Id. at 24) (citing Commonwealth

v. Kellam, 719 A.2d 792 (Pa.Super. 1998), appeal denied, 559 Pa. 714, 740

A.2d 1145 (1999)). Appellant admitted that he was in the role of a caretaker

to the victim as the victim’s babysitter and the primary cook for the victim’s

family, cooking meals for the family 90% of the time. Thus, the court’s jury

instruction concerning a “status relationship” and “duty to act” was proper.

(Id. at 23-25).4

4 We note that the court gave the challenged charge as a general charge about criminal liability and the duty to act where one stands in a certain status relationship to another (see 18 Pa.C.S.A. § 301, requirement of voluntary act), prior to explaining the elements for each of the specific crimes charged. Contrary to Appellant’s assertions, the court did not insert a duty element into the statutory language for first-degree murder, conspiracy, or aggravated assault. (See N.T. Trial, 5/14/21, at 42-61). Further, we emphasize that “a (Footnote Continued Next Page)

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Therefore, Appellant’s issues one through four merit no relief based on

our disposition of Appellant’s issues five through eight. We affirm Appellant’s

issues five through eight, ten, and twelve based on the sound analysis set

forth in the trial court’s opinion. Appellant’s ninth and eleventh issues are

waived. Accordingly, we affirm the judgment of sentence.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 1/27/2023

jury charge must be read as a whole to determine if it is fair and complete” and that “an imperfect jury instruction does not trigger automatic reversal, so long as the balance of the instructions, taken as a whole, fairly and accurately convey the essential meaning.” Commonwealth v. Drummond, 285 A.3d 625, 632-33 (Pa.Super. 2022) (internal citations omitted). Our review of the jury instructions, read as a whole, confirm the court accurately conveyed the law relevant to the charges at issue.

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