J-S43030-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : SAMANTHA JO DELCAMP : : Appellant : No. 81 MDA 2023
Appeal from the Judgment of Sentence Entered September 2, 2022 In the Court of Common Pleas of Northumberland County Criminal Division at No(s): CP-49-CR-0001914-2019
BEFORE: McLAUGHLIN, J., KING, J., and COLINS, J.*
MEMORANDUM BY KING, J.: FILED: JULY 26, 2024
Appellant, Samantha Jo Delcamp, appeals from the judgment of
sentence entered in the Northumberland County Court of Common Pleas,
following her jury trial convictions for two counts of aggravated assault and
one count each of involuntary manslaughter, endangering the welfare of
children (“EWOC”), simple assault, recklessly endangering another person
(“REAP”), obstruction in child abuse cases, hindering apprehension or
prosecution, false reports, and harassment.1 We affirm.
In its opinion, the trial court fully and correctly sets forth the relevant
facts and procedural history of this case. (See Trial Court Opinion, filed
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. §§ 2702(a), 2504(a), 4304(a), 2701(a), 2705, 4958(b.1), 5105(a), 4906(b), and 2709(a), respectively. J-S43030-23
3/20/23, at 1-3). Therefore, we will only briefly summarize the relevant facts
here. On October 10, 2019, Appellant’s paramour, Jahrid Burgess, picked up
Appellant’s three-year-old daughter by the throat, held her against the wall,
and threw the child. Appellant’s daughter hit her head and began having a
seizure. Mr. Burgess called his mother, Christy Willis, and Ms. Willis came to
the house approximately 20 minutes later. None of the parties present at the
scene called for emergency medical services until an hour and a half after Mr.
Burgess initially called Ms. Willis following the incident. Appellant’s daughter
was ultimately taken to the hospital, and she needed immediate surgery to
alleviate the extensive swelling in her brain. The doctors further discovered
bruising across the child’s body and bone fractures in the child’s ribs,
collarbone, and forearms that were at various stages of healing, indicating
repeated abuse. The child died from her injuries on November 22, 2019.
The Commonwealth charged Mr. Burgess, Ms. Willis and Appellant with
various offenses related to this incident. Appellant testified for the
Commonwealth at Mr. Burgess’ and Ms. Willis’ trial. At her trial, Appellant
testified that she had been abused by Mr. Burgess for a period of months and
she was unable to protect her child from Mr. Burgess because she was afraid
for her life. The jury convicted Appellant of the aforementioned offenses and
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Appellant timely appealed her judgment of sentence.2
Appellant raises the following issues for our review:
1. Whether the trial court erred/abused its discretion when it denied Appellant’s post-sentence motion for dismissal/mistrial due to prosecutor misconduct?
2. Whether the trial court erred/abused its discretion when it denied Appellant’s request for an expert and for additional funds for expert testimony on domestic violence abuse victims?
3. Whether the evidence was sufficient to sustain a conviction to find Appellant acted as an accomplice to involuntary manslaughter, aggravated assault, simple assault, and harassment?
4. Whether evidence was sufficient to sustain Appellant’s convictions for involuntary manslaughter, aggravated assault, simple assault, and harassment?
5. Whether the trial court erred/abused its discretion by sua sponte amending Appellant’s jury instructions and adding an affirmative duty to Appellant? ____________________________________________
2 The court sentenced Appellant on September 2, 2022, and Appellant filed a
post-sentence motion on September 13, 2022, beyond the requisite 10-day period. See Pa.R.Crim.P. 720. In response to a rule to show cause, Appellant explained that she attempted to electronically file the post-sentence motion on September 12, 2022 but the electronic filing was rejected by the trial court prothonotary’s office because Appellant attached a scheduling order to the motion. Appellant’s counsel refiled the motion, which was eventually docketed on September 13, 2022. Appellant attached to the response to the rule to show cause automated emails from the PACFile system rejecting and accepting the filings. Nevertheless, clerks of court do not have the authority to reject a timely filing as defective. As such, the rejection of Appellant’s September 12, 2022 motion was a breakdown in court operations and we accept Appellant’s post-sentence motion as timely filed. See, e.g., Commonwealth. v. Williams, 630 Pa. 169, 180, 106 A.3d 583, 589 (2014) (holding that Commonwealth’s notice of appeal was timely filed where Commonwealth filed notice of appeal within time limit but prothonotary’s office did not docket notice due to defect in filing).
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6. Whether the trial court erred/abused its discretion when it did not merge Appellant’s conviction for involuntary manslaughter with her conviction for [EWOC]?
7. Whether the trial court erred/abused its discretion by admitting photographs with the minor child in a hospital bed after surgery with the purpose to inflame jurors?
8. Whether the trial court erred/abused its discretion by denying the Appellant’s request for individual voir dire when Appellant’s testimony on the recreation of the incident was published during [co-defendant’s] trial and Appellant’s case had been subjected to sensational and intense media coverage?
9. Whether a substantial question exists regarding Appellant’s sentence for incarceration given Appellant was a victim of domestic abuse and had no prior record or any criminal involvement?
10. Whether the trial court erred/abused its discretion in denying Appellant’s post-sentence motion for dismissal/sanctions?
(Appellant’s Brief at 38-39) (reordered for purpose of disposition).
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the Honorable Charles H.
Saylor, we conclude Appellant’s first eight issues merit no relief. The trial
court opinion comprehensively discusses and properly disposes of these
questions presented.
Specifically, in her first issue, Appellant asserts that the prosecutor’s
characterization of the evidence during opening and closing statements at her
trial placed additional blame on Appellant than the prosecutor’s statements
regarding the same evidence at Mr. Burgess’ trial and Ms. Willis’ trial, which
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presented Appellant’s actions in a more sympathetic light. The trial court
found no merit to Appellant’s claim because the Commonwealth is free to
pursue different prosecutorial theories at separate trials for co-defendants.
The mere fact that the prosecutor chose to argue the evidence in a manner
that highlights Appellant’s culpability at Appellant’s trial does not amount to
prosecutorial misconduct.3 (See Trial Court Opinion at 4-5).
In her second issue, Appellant argues that the court erred in denying
her request for additional funds to hire an expert to opine on whether
Appellant’s actions were influenced by battered woman’s syndrome. The court
3 We further note that Appellant fails to explain how she was prejudiced or
deprived of a fair trial as a result of the prosecutor’s statements during opening and closing arguments. The only direct evidence presented about the events that transpired on the night that Appellant’s child was injured was Appellant’s testimony and her prior statements to law enforcement. The prosecutor did not refute Appellant’s account of events but merely argued that Appellant’s actions, as presented by Appellant’s own statements, proved her guilt of the charged offenses. Additionally, Appellant’s counsel informed the jury in his opening and closing argument that the prosecutor’s characterization of the evidence differed from his statements during Mr. Burgess’ trial and Ms. Willis’ trial. During his opening statement, Appellant’s counsel even read the prosecutor’s statements from the other trials to allow the jury to compare the statements. As such, the jury heard about how the prosecutor had “painted a different picture” concerning the evidence at the co-defendants’ trials, and we cannot say that Appellant suffered any prejudice under these circumstances. See Commonwealth v. Harris, 884 A.2d 920, 927 (Pa.Super. 2005), appeal denied, 593 Pa. 726, 928 A.2d 1289 (2007) (stating: “Generally speaking, a prosecutor’s comments do not constitute reversible error unless the unavoidable effect of such comments would be to prejudice the jury, forming in their minds fixed bias and hostility toward [an appellant] so that they could not weigh the evidence objectively and render a true verdict. Prosecutorial misconduct, however, will not be found where comments were based on evidence or proper inferences therefrom or were only oratorical flair”).
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determined that Appellant failed to demonstrate that evidence regarding
battered woman’s syndrome would be admissible in this case, where self-
defense was not an issue and the Commonwealth’s theory of criminal
responsibility was based on Appellant’s parental duty to her child. (See id. at
5-6).
In her third and fourth issues combined, Appellant argues that the
evidence was insufficient to demonstrate Appellant’s complicity in the actions
that led to her child’s death because the Commonwealth failed to show that
Appellant intended to participate and did, in fact, participate in the criminal
activity. Appellant further claims that the evidence was insufficient to sustain
her convictions for involuntary manslaughter, aggravated assault, simple
assault, and harassment because the Commonwealth failed to establish that
Appellant acted recklessly or intentionally caused serious bodily injury to her
child.4 The trial court relied on this Court’s holding in Commonwealth v.
Howard, 402 A.2d 674 (Pa.Super. 1979), that a parent has a duty to protect
his or her child and the failure to dispatch this duty with affirmative acts
4 Appellant’s brief fails to discuss the elements of harassment and does not
explain how the evidence was insufficient to sustain this conviction. As such, Appellant’s sufficiency challenge to her harassment conviction is waived. See Commonwealth v. Taylor, 277 A.3d 577, 590-91 (Pa.Super. 2022) (reiterating that failure to develop adequate argument in appellate brief may result in waiver of claim under Pa.R.A.P. 2119).
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creates culpability by omission.5 The court noted that the Commonwealth
presented evidence that Appellant was aware that her child was being severely
abused for a period of four months, Appellant failed to take any actions to
protect her child, Appellant failed to take action to get her child medical care
for a prolonged period of time as her child was seizing, and Appellant lied to
medical staff about the cause of the child’s injuries. The court concluded that
the evidence, viewed in the light most favorable to the Commonwealth as the
verdict winner, was sufficient to establish the requisite intent and culpability
by omission for accomplice liability for her convictions. (See Trial Court
Opinion at 6-9). The court further determined that Appellant’s inaction
constituted a conscious disregard of a substantial and unjustifiable risk to the
health and safety of her child, which ultimately resulted in her death. See
Commonwealth v. Roebuck, 612 Pa. 642, 659, 32 A.3d 613, 624 (2011)
(holding that accomplice liability does not require specific intent to bring about
particular result and can be established if Commonwealth establishes that
accomplice acted with mental culpability required of principal actor).
In her fifth issue, Appellant argues that the court erred in modifying the
standard jury instructions to include language that a parent has an affirmative
duty to protect his or her child, without giving prior notice to counsel of this
5 Appellant’s brief fails to address the holding in Howard in any meaningful
way other than baldly asserting that this case is distinguishable because Appellant’s inaction was justified.
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modification. The court stated that it properly acted within its discretion to
instruct the jury on the law because the facts of this case were not covered
by the standard jury instructions and required modification to accurately
represent the relevant law as stated in Howard.6 (See Trial Court Opinion at
8).
In her sixth issue, Appellant asserts that the court erred by not merging
Appellant’s EWOC conviction with her involuntary manslaughter conviction for
sentencing purposes because both convictions are based on the same
underlying conduct. The court found no merit to Appellant’s merger claim
because both offenses have distinctive elements that are not required to be
established for the other offense and as such, neither offense may merge with
the other for sentencing. (See id. at 10-12).
In her seventh issue, Appellant asserts that that the court erred by
admitting inflammatory photographs of the child in a hospital bed, post-
surgery, which did not have significant probative value because the medical
expert testified to the child’s injuries. The court found that the photographs’
evidentiary value outweighed any likelihood of inflaming the passions of the
jury because the Commonwealth’s theory of liability was based on Appellant’s
failure to protect her child, and for the jury to fully understand the number of
6 Further, there is no merit to Appellant’s claim that the court did not give counsel adequate notice because the court informed Appellant’s counsel of its intention to modify the standard jury instruction well before closing arguments. (See N.T. Trial, 5/11/22, at 309-311, 332-334).
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injuries Appellant’s child suffered, the jury needed to visually see the injuries.7
(See Trial Court Opinion at 14).
In her eighth issue, Appellant contends that the court abused its
discretion by denying Appellant’s request for individual voir dire because
Appellant’s case had been subject to intense media coverage and accounts of
Appellant’s testimony at Mr. Burgess’ trial and Ms. Willis’ trial had been
published by media outlets. The court explained that although it generally
denied Appellant’s motion in limine requesting individual voir dire, the court
permitted Appellant’s counsel to individually question any prospective juror at
sidebar who indicated that he or she had heard anything in the media about
Appellant’s case. (See Trial Court Opinion at 14-15).
Based on the reasoning set forth above and described in greater detail
in the court’s opinion, we affirm on the basis of the trial court’s opinion
concerning issues one through eight.
In her ninth issue, Appellant asserts that the court’s imposition of a
sentence that included incarceration was excessive. Appellant argues that the
court failed to properly consider that she did not have a criminal history and
was a victim of domestic abuse who was entirely reliant on Mr. Burgess.
7 After reviewing the photographs, we further note that the photographs do
not depict the child “with her skull cut open,” as Appellant asserts. The photographs also do not show any large open wounds. The photographs mostly depict the child in a hospital bed, with wires from various medical equipment attached to her body, and bruising across her head and body.
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Appellant concludes that the court abused its sentencing discretion by
imposing an excessive sentence and we should vacate the judgment of
sentence. We disagree.
As presented, Appellant’s claim challenges the discretionary aspects of
sentencing. See Commonwealth v. Lutes, 793 A.2d 949 (Pa.Super. 2002)
(stating claim that sentence is manifestly excessive challenges discretionary
aspects of sentencing); Commonwealth v. Cruz-Centeno, 668 A.2d 536
(Pa.Super. 1995), appeal denied, 544 Pa. 653, 676 A.2d 1195 (1996)
(explaining claim that court did not consider mitigating factors challenges
discretionary aspects of sentencing).
“Challenges to the discretionary aspects of sentencing do not entitle an
appellant to an appeal as of right.” Commonwealth v. Phillips, 946 A.2d
103, 112 (Pa.Super. 2008), cert. denied, 556 U.S. 1264, 129 S.Ct. 2450, 174
L.Ed.2d 240 (2009). Prior to reaching the merits of a discretionary aspects of
sentencing issue:
[W]e conduct a four-part analysis to determine: (1) whether appellant has filed a timely notice of appeal, see Pa.R.A.P 902 and 903; (2) whether the issue was properly preserved at sentencing or in a motion to reconsider and modify sentence, see Pa.R.Crim.P. [720]; (3) whether appellant’s brief has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a substantial question that the sentence appealed from is not appropriate under the Sentencing Code, 42 Pa.C.S.A. § 9781(b).
Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.Super. 2006), appeal
denied, 589 Pa. 727, 909 A.2d 303 (2006) (quoting Commonwealth v.
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Hyland, 875 A.2d 1175, 1183 (Pa.Super. 2005)).
When appealing the discretionary aspects of a sentence, an appellant
must invoke this Court’s jurisdiction by including in his brief a separate concise
statement demonstrating a substantial question as to the appropriateness of
the sentence under the Sentencing Code. Commonwealth v. Mouzon, 571
Pa. 419, 812 A.2d 617 (2002); Pa.R.A.P. 2119(f). “The requirement that an
appellant separately set forth the reasons relied upon for allowance of appeal
furthers the purpose evident in the Sentencing Code as a whole of limiting any
challenges to the trial court’s evaluation of the multitude of factors impinging
on the sentencing decision to exceptional cases.” Commonwealth v.
Phillips, 946 A.2d 103, 112 (Pa.Super. 2008), cert. denied, 556 U.S. 1264,
129 S.Ct. 2450, 174 L.Ed.2d 240 (2009) (quoting Commonwealth v.
Williams, 562 A.2d 1385, 1387 (Pa.Super. 1989) (en banc)) (emphasis in
original) (internal quotation marks omitted).
“The determination of what constitutes a substantial question must be
evaluated on a case-by-case basis.” Commonwealth v. Anderson, 830
A.2d 1013, 1018 (Pa.Super. 2003). A substantial question exists “only when
the appellant advances a colorable argument that the sentencing judge’s
actions were either: (1) inconsistent with a specific provision of the Sentencing
Code; or (2) contrary to the fundamental norms which underlie the sentencing
process.” Sierra, supra at 912-13. A claim of excessiveness can raise a
substantial question as to the appropriateness of a sentence under the
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Sentencing Code, even if the sentence is within the statutory limits. Mouzon,
supra at 430, 812 A.2d at 624. Bald allegations of excessiveness, however,
do not raise a substantial question to warrant appellate review. Id. at 435,
812 A.2d at 627.
Instantly, Appellant failed to include the requisite Rule 2119(f)
statement in her appellate brief. Additionally, Appellant baldly asserts that
she raised a substantial question without supporting this claim with any
relevant authority. Appellant’s bald allegation of excessiveness and claim that
the sentencing court failed to consider mitigating factors do not pose
substantial questions. See Mouzon, supra; Cruz-Centeno, supra
(explaining allegation that sentencing court failed to consider or did not
adequately consider certain factors does not raise substantial question). Thus,
Appellant has not satisfied the required four-part test for review of her
sentencing claim. See Hyland, supra.
In her tenth and final issue, Appellant claims that the court erred in
denying her motion to dismiss and motion for sanctions based on the
prosecutor’s failure to file a responsive brief to Appellant’s post-sentence
motion. Appellant argues that the prosecutor’s failure to file a brief, despite
being given two extensions of time, should be viewed as a failure to oppose
Appellant’s issues in her post-sentence motion. Appellant concludes that the
court abused its discretion in denying Appellant’s motion and we should vacate
the court’s order denying post-sentence relief. We disagree.
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Initially, we note that Appellant’s brief fails to explain how the court
abused its discretion in denying Appellant’s motion to dismiss and motion for
sanctions. Appellant merely cites to local court rules and general case law
stating that the court, in its discretion, may treat a matter as withdrawn if a
party fails to file a brief or impose sanctions as the court deems appropriate.
(See Appellant’s Brief at 76-77). Significantly, Appellant cites no authority to
support her assertion that the Commonwealth’s failure to respond to an
appellant’s post-sentence motion constitutes non-opposition to the claims
raised therein and warrants granting of the post-sentence motion. As such,
Appellant has waived this argument. See Taylor, supra. See also
Commonwealth v. Johnson, 604 Pa. 176, 191, 985 A.2d 915, 924 (2009),
cert. denied, 562 U.S. 906, 131 S.Ct. 250, 178 L.Ed.2d 165 (2010) (stating
claim is waived where appellate brief does not include citation to relevant
authority or fails to develop issue in any meaningful fashion capable of
review). Therefore, Appellant’s ninth and tenth issues also merit no relief.
Accordingly, we affirm Appellant’s judgment of sentence.
Judgment of sentence affirmed.
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Judgment Entered.
Benjamin D. Kohler, Esq. Prothonotary
Date: 7/26/2024
- 14 - Circulated 07/11/2024 11:52 AM
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NORTHUMBERLAND COUNTY, PENNSYLVANIA ij CRIMINAL DIVISION •' T C _, :11 . L
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COMMONWEALTH OF cG
t1: PENNSYLVANIA APPELLEE •v
VS. NO. CR-19-1914
SAMANTHA JO DELCAMP, DEFENDANT/APPELLANT
OPINION
Saylor, SJ.
This case is about the tragic life of athree year old girl, and the mother
who failed to protect her from repeated harm at the hands of her paramour. The child had
sustained multiple factures on at least three difference occasions. Treatment was not sought for
these painful injuries by Appellant, her mother. With the last traumatic event, on October 10,
2019, resulting in the most severe injuries that led to the child's eventual demise at the hands
of the paramour, Appellant did not take the necessary action to obtain immediate medical care
to save her.
On October 10, 2019, Appellant's paramour, ]ahrid Burgess had afit of rage because
the child was not eating her dinner. He picked her up by the throat, held her against the wall,
threw the child toward aminiature chair/sofa, missed, the child hit her head and went into a
seizure. Rather than calling 911 for emergency services, Burgess called his mother to come
where he googled for information on seizures. Burgess' mother, Ms. Willis arrived about twenty
minutes later. No one calls 911 until finally one is placed from Ms. Willis' phone by Willis. The
time frame from the initial call from Appellant's residence to Ms. Willis until when 911 was
eventually called was an interminable one hour and twenty-five minutes.
1 By the time the child arrived at the hospital nearly two hours had passed. Appellant did
not call 911, or if being prevented from use of the cell phone by Burgess, leave the residence to
aneighboring home for assistance in making acall. According to the medical testimony, the
delay in treatment, as well as the EMTs not being told what actually happened to the child prior
to transport, lessened the child's chance for survival. After adifficult hospitalization the child
succumbed to her injuries amonth later on November 22, 2019 due to multiple blunt force
injuries.
The day after her arrival at the hospital, the child was examined by apediatrician
specializing in child abuse at Geisinger Medical Center, Dr. Paul Bellino. It was his findings that
apart from the immediate injuries to the child there was evidence of numerous earlier in time
healed fractures, some from about six weeks previously and others that were older.
The immediate injuries from the day before are bruising under the left arm pit, the
middle portion of her abdomen, to her right hip, over the right eye, both knees, right forearm
and elbow, neck, back, right buttock and thigh. ACT scan showed avery large collection of
blood in her head and the right side of the brain was very swollen, requiring the surgeons to
open her skull and remove aportion of her brain, to treat her brain injuries.
Dr. Bellino obtained CT scans of her chest and abdomen that revealed anumber of
fractures in her chest. She had fractures of both of her collarbones that were old, weeks prior
to her admission. The child had nine rib fractures, one broken in two places, not as old as the
collarbone. There were also healing fractures of the bones of her forearms on both sides. In
addition, there was bleeding around both of her kidneys that was not arecent hemorrhage,
about several weeks since onset.
These findings were the basis of Dr. Bellino's opinion that the child had been subjected
to repeated abuse. They recurred over six or more weeks, not including the physical trauma
2 inflicted the night prior to the hospitalization. Appellant did not get her treated, except one
time.
The Appellant took up residence with Burgess during the summer of 2019. Sadly the
Appellant was able to dissuade the Children and Youth caseworkers of any problems. The day
of the final episode of harm, October 10, 2019, aCYS caseworker saw the child who appeared
okay, so abody exam was not done. Appellant denied any allegations of domestic violence for
herself or any abuse toward the child on several occasions to the caseworker, including the
moming of the 10"'. As noted above, the child died 43 days later.
Following atwo-day jury trial, Appellant was found guilty of Involuntary Manslaughter
and multiple other counts. On September 2, 2022, Appellant was sentenced by this Court.' On
September 13, 2022, Appellant filed aPost Sentencing Motion, which was denied on December
30, 2022. On December 20, 2022, Appellant filed aMotion to Dismiss and Motion for Sanctions,
which was denied on December 30, 2022. Appellant appealed and on January 20, 2023, the
court ordered a1925(b) statement of reasons complained of on appeal. The Appellant's
Statement was filed on February 2, 2023. The Appellant on appeal raises basically ten issues,
which will be addressed seriatim hereafter.
'Appellant was sentenced by this Court on Count 1-Involuntary Manslaughter, victim less than 12 years old to aperiod of 16 months to 44 months; on Count 2-Aggravated Assault, causing serious bodily injury to aperiod of 36 months to 72 months to run consecutively to Count 1; on Count 3-Aggravated Assault, victim less than 13 years old to aperiod of 60 months to 120 months to run consecutively to Count 1and 2; on Count 4-Endangering Welfare of Children to aperiod of 24 months to 48 months to run consecutively to Counts 1,2,3; on Count 5-Obstruction to aperiod of 8months to 16 months to run consecutively to Counts 1,2,3,4; on Count 7-Hindering to aperiod of 1year probation to run concurrent with Count 1; on Count 9- Recklessly Endangering Another Person to aperiod of 1year probation to run concurrent to 1; on Count 10-Flase Reports to aperiod of 1year probation to run concurrent to Count 1; on count 11-Harassment to afine and costs; Count 6merged with Count 3for sentencing purposes; Count 8merges with Count 6for sentencing purposes.
3 L prosecutorial Misconduct
There Is asomewhat confusing argument about the Interplay between the District
Attorney's approach as inconsistent in the separate trials previously conducted In
Comn nwealrh v. Bulyessr Commonwealth v. t2/lis and the case at bar. Appellant contends
that the District Attorney unethically represented two incompatible versions of the incident. As
the trial judge in the Burgess trial and the one at bar, there is no support for this assertion. The
evidence presented did not vary in any significant manner. The core witnesses of Trooper
Seibert and Reaves and Dr. Paul Bellino testified in both cases. Appellant testified as to her
version of events in the Burgess trial of her own volition, without invoking her fifth amendment
privilege.
In any event, there is no existing "proposition that the Commonwealth may not pursue
different prosecutorial theories in separate murder trials of codefendants." Commonwealth v.
Koehler, 36 A.3d 121, 139 (Pa. 2012). Of course the circumstances as to each defendant
requires different approaches at their trials; however, there was nothing here of any
overreaching as to Appellant's trial.
Prosecutorial misconduct was asserted at trial when the District Attorney attempted to
introduce avideo of an interview by Trooper Seibert of the Appellant. Appellant objected that if
any inconsistent statements are allowed, the following exchange took place:
MR. MATULEWICZ: There are acouple more statements she makes. She is kind of all over the place. Ithink it was going to end at 12:03. Then it's going to skip ahead because I'm taking all references to the Wilkos Show out.
MR. O'DONNELL: Your Honor, if they are saying that she is inconsistent, she is essentially lying. That is an Ethical Rule Violation 3.3, Candor to the Tribunal. You have aduty to disclose, if you believe that they presented as their witness is not telling the truth and is lying. So, today they can't go back and say she is lying, or not telling the truth. That is what they are trying to do. That needs to be something that is disclosed. That is something that will ^^ effect both cases.
4 .•
So, again, you can't represent acase both ways. You can't say this witness is telling the truth at one trial, and now say she Is lying. There Is aduty to disclose that. That is Ethical Code Rule 3.3, Candor to the Tribunal. That Is being violated. This whole trial it's being violated. MR. MATUIEWICZ: Idon't believe that she's lying. Ijust -- she Is just kind of jumping from topic to topic, is what Isaid.
THE COURT: You are presenting an interview that she gave —
MR. MATULEWICZ: Right.
THE COURT: -- and she is the defendant. She has made various admissions about what occurred over acourse of conduct that is relevant to the crimes with which she has been charged. Relevant to her duty as aparent to project her child, so the Commonwealth is proceeding properly. The request for mistrial is denied. We will -- can you skip more of the video?
Tr. pp. 280-281; see also Tr. p. 285.
It was properly admitted evidence of her statements about the occurrence. There is no
impropriety by the District Attorney in introducing this evidence and for the jury to determine
Appellants truthfulness when the statements were made. Moreover, defense counsel never
pointed to any portion of the record of the Burgess trial to support his argument. Finally,
defense counsel had the full opportunity to question any of the witnesses as to any
inconsistencies in any testimony between the two trials, but rarely did so?
II. Denial of Domestic Violence Expert
There was apretrial motion for the appointment of an expert in relation to her defense that was
granted on April 28, 2020, for the sum of $ 2,500. Subsequently, Appellant filed amotion for
additional funds on January 21, 2022 for apsychiatric evaluation to ascertain if she suffers from
"battered women syndrome."
2 The redacted video was available for defense counsel to review during arecess.
5 Rrst, this motion for aparticular type of evaluation was made 27 months after the final
occurrence, and ahearing was not requested to provide any evidence in support thereof. This
was untimely.
Second, there was no legal authority provided to support the use at trial here of any
such expert opinion. There has only been expert testimony on the Battered Women's Syndrome
in the situation where self-defense is asserted. Commonwealth v. Miller, 63 A.2d 614 (Pa.
Super. 1993); Commonwealth v. Grove, 526 A.2d 614 (Pa. Super. 1987). It has no bearing on
the Appellant's parental objections regarding the protection of her child, to assure the well-
being and safety of athree-year old dependent on her. The court had no reason to release
additional funds when an evaluation and/or expert testimony would be inadmissible at trial. The
Miller court held that"[t]he syndrome does not represent adefense to homicide in and of itself,
but rather, is atype of evidence which may be introduced on the question of the reasonable
belief requirement of self-defense in cases which involve ahistory of abuse between the victim
and the defendant." Millerat 622. The Appellant did not allege self-defense nor were her
actions the result of attempting to protect herself from imminent death or serious bodily injury;
her three-year-old daughter was the victim.
]III. Accomplice Liability
The next issue raised is that there was not sufficient evidence to find the Appellant was
an accomplice to Involuntary Manslaughter, Aggravated Assault, Simple Assault, and
Harassment. This contention is without merit as accomplice liability was properly applied even
though there is an "act" requirement to the crimes. An omission is abasis for liability where "a
duty to perform the omitted act is otherwise imposed by law." 18 Pa.C.S.A. § 301(b)(2);
Commonwealth v. Howard, 402 A.2d 674, 676 (Pa. Super. 1979). In Howard, the fact pattern is
similar to the instant case. The victim, achild, was killed via the physical abuse of the mother's
6 paramour. The court in Howard affirmed the lower court's conviction for Involuntary
manslaughter as "the evidence was sufficient to prove that appellant's failure to protect the
child was adirect cause of her death, and that such failure was reckless or grossly negligent
under the circumstances."
Under 18 Pa.C.S.A § 2504, "Aperson is guilty of involuntary manslaughter when as a
direct result of the doing of an unlawful act in areckless or grossly negligent manner, or the
doing of alawful act in areckless or grossly negligent manner, he causes the death of another
person." Here, the Appellant's culpability is formed by her omission:
omission to act may create criminal culpability under our Crimes Code even though the law defining the offense, as here, requires an "act", where "aduty to perform the omitted act is otherwise imposed by law." 18 Pa.C.S.A. § 301(b)(2). Here, appellant and the victim stood in the relation of parent and child. Aparent has the legal duty to protect her child, and the discharge of this duty requires affirmative performance. (citations omitted)
Howard at 676. Appellant allowed her child to get abused over the period of four months from
July 2019 through October 2019. The child's death is adirect result from the Appellant's failure
to protect her child from Burgess' abuse. Like Howard, the immediate cause of death was from
injuries inflicted by Burgess. However, the Appellant is still culpable for her continuing failure to
protect her child during this time. The Appellant did not leave the relationship, she did not seek
outside support from family or the authorities, she lied multiple times to CYS when asked if she
and the child were being abused. Furthermore, on the night of the incident that caused the
death Appellant did not get her child the medical care she needed. Instead, she listened to
Burgess and his mother while they googled information about seizers and debated calling 911
because Burgess did not want to get into trouble. Ultimately, Appellant witnessed and had
knowledge of apattern of physical beatings and abuse inflicted on her three-year-old child. She
"consciously disregarded amanifestly apparent risk to the health and safety of her young child
7 and that this neglect was agross deviation from the standard of conduct the reasonable parent
would observe under the circumstances." Id. at 678.
Y Jury Instructions
The Appellant next contends that the court erred by "sua sponte amending Appellant's
jury instructions." However, Appellant did not submit any proposed jury instructions or points
for charge, except the standard jury instruction for third degree murder. At trial, the essence of
Appellant's objection was that the court charged the jury that aparent has alegal duty to
protect her child, and the discharge of this duty requires affirmative performance on her part.
Tr. p. 363. This was based upon the principles enumerated in Commonwealth v. Howard, supra,
and as noted above.
The Suggested Standard Jury Instructions themselves are not binding and do not alter the discretion afforded trial courts in crafting jury instructions; rather, as their title suggests, the instructions are guides only.
Commonwealth v. Bd nger, 108 A.3d 821, 845 (Pa. 2014).
The unique facts of this case as to parental duty are not covered by the standard instructions,
and thus the court would have been remiss if the jury was not properly instructed by the
tailored instructions.
V. Sufficiency of the Evidence
A claim challenging the sufficiency of the evidence is aquestion of law. Evidence will be deemed sufficient to support the verdict when it establishes each material element of the crime charged and the commission thereof by the accused, beyond areasonable doubt. Commonwealth v. Karkaria, 533 Pa. 412, 625 A.2d 1167 ( 1993). Where the evidence offered to support the verdict is in contradiction to the physical facts, in contravention to human experience and the laws of nature, then the evidence is insufficient as amatter of law. Commonwealth v. Santana, 460 Pa. 482, 333 A.2d 876 ( 1975). When reviewing asufficiency claim the court is required to view the evidence in the light most favorable to the verdict winner giving the prosecution the benefit of all reasonable inferences to be drawn from the evidence. Commonwealth v. Chambers, 528 Pa. 558, 599 A.2d 630 ( 1991).
8 4,x 1 .-
Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000).
The jury was within its province to accept the extensive medial testimony of the physical
abuse Inflicted on this child over the course of over six weeks. Appellant did not get the child
treatment. It was acriminal failure to protect her child on the evening of October 10, 2019.
There were the prior lies to the caseworkers of CYS that the child was unharmed and safe. She
had many opportunities to leave the abusive relationship.
Appellant testifled at the trial that she knew in August of 2019 that Burgess was beating
her daughter. Tr. p. 318. He slapped, kicked, and punched her. On another occasion she was
aware Burgess broke the child's bones. Id. There was also the incident that he tortured the
child with water in the bathtub. Id. She admitted that she failed in her parental duty to protect
her. Tr. p. 320.
At the hospital, she agreed with Burgess and his mother to make up astory to tell the
police. She then protected Burgess in her initial statement- to the investigators.
Finally, there was avery disturbing video that Burgess sent her through his mother
(evidently this was on an occasion she was away from him) where he was making the child set
on apotty with both arms held up in the air with aterrified look in her eyes. Appellant's
response was as follows:
Q: And you didn't leave after that? A: Because he made my daughter sit on the toilet with her arms in the air? Q: Yeah. A: Idon't see reason to - - why to leave. It didn't show that he hit her or say he hit her. So, Idon't understand. Tr. p. 326.
She is indifferent. There was no compassion for her daughter in her situation of repeated
abuses by her paramour. She was not the direct actor, but she was certainly complicit with him.
The child had no one to protect her.
9 Sentence
Appellant challenges this court's determination that she be sentenced to Incarceration.
She argues that she was avictim of domestic abuse and with no prior record, incarceration was
not warranted.
The court followed the standard ranges under the sentencing guideline with
consideration of the victim being aminor. There was due consideration of the pre-sentence
investigation to support the sentence. Commonwealth v. Fowler, 30, 893 A.2d 758, 766 (Pa.
Super. 2006). The court satisfied the requirements of 42 Pa.C.S.A. § 9718(2)(d) and exercised
its discretion to impose agreater sentence than provided by the minimum. There was no basis
for the court to impose amitigated range sentence, and that would still require incarceration.
The court considers the role of the Appellant here as her daughter was subjected to repeated
physical abuse that ultimately resulted in her death as warranting asignificant period of
incarceration.;
VII. Merqer
The seventh issue raised is that Count 2of the Amended Information Aggravated
Assault should have merged with Count 3Aggravated Assault. This contention is without merit
as the doctrine of merger does not preclude convictions for both these offenses. The merger
doctrine prohibits crimes from merging 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." 42 Pa.C.S.A. § 9765. Thus, all the elements of the one offense
must be subsumed in the other offense. If there are elements of the one offense that are not
3Appellant daims there was areference at sentencing to avideo that was not admitted into evidence; however, the video was played in court, as well as extensive testimony related therein Tr. p. 325-328.
10 3 1-
required in the other offense, then the crimes do not merge. As our Supreme Court held in
Common"alth v. Baldwin, 985 A.2d 830 (Pa. 2009):
A plain language interpretation of Section 9765 reveals the General Assembly's Intent to preclude the courts of this Commonwealth from merging sentences for two offenses that are based on a single criminal act unless all the statutory elements of one of the offenses are included in the statutory elements of the other. Commonwealth v. Calhoun, 52 A.3d 281, 284 (Pa. Super. 2012) (quoting Commonwealth v.
Baldwin, 98S A.2d 830, 837 (Pa. 2009)).
This present statutory doctrine of merger was summarized in Calhoun, as follows:
In any event, Section 9765, particularly as elucidated by our Supreme Court in Baldwin, evinces aclear intent to confine merger for sentencing purposes to the defined condition that all of the statutory elements of one of the offenses are included in the statutory elements of the other. Id. at 285.
Moreover, in Commonwealth v. Edwards, 256 A.3d 1130,1137 (Pa. 2021), it was
clarified that "Section 9765 does not require an evaluation of the specific facts as applied to the
elements." It is clear that the merger analysis "begins and ends with the statutory elements of
each offense." Id. As far as merger of different offenses, Count 2Aggravated Assault, 18 Pa.
C.S.A. § 2702(a)(1) and Count 3Aggravated Assault Victim Under 13, 18 Pa. C.S.A. § 2702
(a)(9) do not merge in accordance with 42 Pa. C.S.A. § 9765. The elements of each differ with
the age requirement.
The next issue raised also pertains to amerger analysis. Appellant contends that Count-
1of the Amended Information-Involuntary Manslaughter 18 Pa. C.S.A. § 2504, should have
merged with Count 4- Endangering Welfare of Children, 18 Pa. C.S.A. § 4304(a)(1). The two do
not merge in accordance with 42 Pa. C.S.A. § 9765 for sentencing purposes.
The crime of EWOC has been characterized in Commonwealth v. Krock, 282 A.3d 1132
(2022), as being specifically designed to criminalize child abuse:
11 (C) It is well-established that child welfare statues, such as EWOC, are "designed to cover abroad range of conduct In order to safeguard the welfare and security of ... children." Commonwealth v. Mack, 467 Pa. 613, 359 A.2d 770,772 ( 1976). In determining what conduct violates section 4304, "the common sense of the community, as well as the sense of decency, propriety, and the morality which most people entertain is sufficient to apply the statute to each particular case, and to individuate what particular conduct is rendered criminal by it." Commonwealth v. Howard, 257 A.3d 1217, 1222 n.9 ( 2021), citing Commonwealth v. Marlin, 452 Pa. 380, 305 A.2d 14, 18 ( 1973).
Id. at 1138.
It is involuntary manslaughter "when as adirect result of the doing of an unlawful act in
areckless or grossly negligent manner, or the doing of alawful act in areckless or grossly
negligent manner, [s]he causes the death of another person" 18 Pa.C.S.A. § 2504. The
statutory elements of EWOC are that "Aparent, guardian or other person supervising the
welfare of achild under 18 years of age, or aperson that employs or supervises such aperson,
commits an offense if he knowingly endangers the welfare of the child by violating aduty of
care, protection or support." 18 Pa.C.S.A. § 4304(a)(1).
Clearly, there are different elements to these two crimes that do not allow the two to
merge. Specially, EWOC has aduty requirement that the defendant had owed aduty to the
child as aparent, guardian, or supervisor, which involuntary manslaughter does not. There is
also not an age requirement to involuntary manslaughter as there is with EWOC. The victim
needs to be achild under the age of 18. Commonwealth v. Grassmyer, 402 A.2d 1052 (Pa.
Super. 1979), summarized that Pa.C.S.A. § 4304 "requires that the defendant have acertain
status relationship to the victim (parent, guardian, or supervisor), that the victim be under 18
years or age, and that the defendant's act is aviolation of aduty of care, protection, or
support" Id. at 1054. In the Instant case, Appellant was the natural mother, and the child was
three years old. Therefore, there is no merger available for sentencing purposes under 42
Pa.C.S.A. §9765.
12 YU Amendment of Information
The Information referred to October 24, 2019, when the testimony presented In the
Commonwealth's case in chief centered on the evening of October 10, 2019, when the child
was severely injured. When this was pointed out in chambers, the District Attorney made a
motion to amend on the basis of aclerical error. Appellant had notice of the relevant actual
dates through voluminous discovery provided to her well in advance of trial.
Pennsylvania Rule of Criminal Procedure 564 states:
The court may allow an information to be amended when there Is adefect in form, the description of the offense(s), the description of any person or any property, or the date charged, provided the information as amended does not charge an additional or different offense. Upon amendment, the court may grant such postponement of trial or other relief as necessary in the interests of justice.
Commonwealth v. Sinclair, 897 A.2d 1218, 1221 (Pa. Super. 2006). The Pennsylvania Superior
Court has summarized the test in Sinclair, as follows:
the purpose of Rule 564 is to ensure that adefendant is fully apprised of the charges, and to avoid prejudice by prohibiting the last minute addition of alleged criminal acts of which the defendant is uninformed. Commonwealth v. Duda, 831 A.2d 728, 732 (Pa. Super. 2003). The test to be applied is: [Mhether the crimes specified in the original indictment or information involve the same basic elements and evolved out of the same factual situation as the crimes specified in the amended indictment or information. If so, then the defendant is deemed to have been placed on notice regarding his alleged criminal conduct. If, however, the amended provision alleges adifferent set of events, or the elements or defenses to the amended crime are materially different from the elements or defenses to the crime originally charged, such that the defendant would be prejudiced by the change, then the amendment is not permitted. Commonwealth v. Davalos, 779 A.2d 1190, 1194 (Pa. Super. 2001) (citation omitted). Id.
pearly, under the present circumstances, Appellant was fully apprised of the dates of
the alleged offenses throughout the course of the proceedings, and there has been no prejudice
to her by the allowance of the amendment to correct the typographic error.
13 I& Photographs
Appellant asserts error by the court In allowing photographs for viewing by the jury of
the child in the hospital.
The standard as laid out in Commonwealth v. Johnson, 42 A.3d 1017, 1033-34 (Pa.
2012) requires:
[The] court must determine whether the photograph[s] [are] inflammatory. If not, it may be admitted if it has relevance and can assist the jury's understanding of the facts. If the photograph[s] [are] inflammatory, the trial court must decide whether or not the photographs are of such essential evidentiary value that their need clearly outweighs the likelihood of inflaming the minds and passions of the jurors.
The court properly admitted photographs of the victim in hospital. The photographs were
admitted in accordance with their evidentiary value, to show the jury the nature of the injuries
of the victim, as the victim had bruising to her face, and over her front and back. For the jury to
fully understand the number of injuries, as there were many, they needed to visually see them.
The photos were illustrative for when the healthcare provider testified as to the child's injuries
and limited in number.
X. Individual Voir Dire
This court denied Appellant's pretrial Motion in Umine for individual voir dire. This was
denied generally; however, the Appellant was allowed by this court's order of April 12, 2022, to
question individually any prospective juror who indicated that he or she had heard anything
about the case by way of any media coverage 4
Individual voir dire is only required in capital cases; in all non-capital cases, the trial
court has discretion to determine who will ask the questions of the jurors and whether jurors
Appellant had appeared on the Steve Wilkos national television program.
14 will be questioned individually or collectively. Commonwealth v. Hathaway, 500 A.2d 443, 447
(Pa. Super. 1985); Pa.R.CNm.P. 631 (F).
The custom and practice in Northumberland County Is for the judge to ask preliminary
questions of the panel, followed up by counsel, with Individual questioning when appropriate at
side bar. Appellant's counsel was given the full opportunity to question any prospective juror
individually when ajuror had any prior knowledge or publicity about the case. There were only
6prospecctive jurors that responded to defense counsel that had read or heard about the case,
and individual vior dire at sidebar of these jurors was not requested; therefore, the issue Is
waived.
Conclusion
In light of the aforementioned disposition of the issues raised, it is respectfully
submitted that the court's decisions were free from legal error and that there is no merit to
Appellant's appeal. This court respectfully submits that Appellant's judgements of sentences be
affirmed.
BY THE COURT:
Z3 Charles H. SaylorJ. - Nor Judge
n yI =ZI Nd OZ HYR tzoz
cc: District Attorney M Z Michael O'Donnell, Esq. XO Court o , -• r -r Legal Journal •c o8 M• V0