Com. v. Scholl, M.

• Court: Superior Court of Pennsylvania
• Decided: February 28, 2019
• Docket: 1886 MDA 2017
• Status: Unpublished

Opinion

J-S79027-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : MELISSA ANN SCHOLL : : Appellant : No. 1886 MDA 2017

Appeal from the Judgment of Sentence November 20, 2017 In the Court of Common Pleas of Luzerne County Criminal Division at No(s): CP-40-CR-0001775-2016

BEFORE: SHOGAN, J., OLSON, J., and MUSMANNO, J.

MEMORANDUM BY OLSON, J.: FILED FEBRUARY 28, 2019

Appellant, Melissa Ann Scholl, appeals from the judgment of sentence

entered on November 20, 2017. We affirm.

The trial court ably summarized the underlying facts and procedural

posture of this case:

[O]n December 9, 2015, [Appellant] and her two children were found sitting in a parked car in a secluded location, with a hose running from the car’s exhaust pipe into its passenger compartment. Wilkes-Barre Township police were dispatched to the scene, [Appellant] was taken into custody, and a criminal information against [Appellant] was subsequently filed, charging her with two counts of attempted criminal homicide. . . .

A jury trial commenced on June 13, 2017. A mistrial was declared during jury deliberation, however, after it became clear to the [trial] court that the jury was unable to reach a unanimous verdict. A second jury trial commenced on September 12, 2017. Following deliberation, the jury found [Appellant] guilty of both counts of attempted criminal homicide. J-S79027-18

A pre-sentence investigation (PSI) was ordered, and sentencing was scheduled for November 20, 2017.

At [Appellant’s] sentencing hearing, the [trial] court heard statements from [Appellant], persons who spoke on her behalf, and counsel. Based on these statements, and the [trial] court’s review of the PSI and a letter and a protection from abuse petition submitted on [Appellant’s] behalf, the [trial] court sentenced [Appellant] on Counts 1 and 2 to consecutive terms of [60 to 180 months’ imprisonment, followed by five years’ probation], for an aggregate sentence of [ten to 30 years’ imprisonment, followed by ten years’ probation].

Trial Court Opinion, 7/18/18, at 1-2 (internal footnotes and some internal

capitalization omitted).

Appellant filed a timely notice of appeal and now raises ten issues to this

Court:

Is Appellant entitled to a new trial or in the alternative, dismissal of charges when, applying the applicable Pennsylvania law, the trial court abused its discretion and/or misapplied the law by:

a. Permitting into evidence, video interviews of minor Julian Scholl without proper notice that the Commonwealth intended to proceed under Rule 5985.1;

b. Permitting into evidence, a screenshot of alleged smartphone text messages obtained through a third party to be admitted and said text messages were not properly authenticated;

c. Permitting into evidence, text messages from Appellant’s phone obtained through an illegal search and seizure and which were not properly authenticate[d];

d. Permitting the jury to take copies of all the alleged text messages into the jury deliberating room which infer a confession by Appellant;

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e. Denying the jury copies of the elements of the crime after they requested the elements on two separate occasions and after the judge add[ed] inflammatory and incriminating words about Appellant’s acts;

f. Failing to give jury instructions and definitions of “intent to kill” and “transferred intent” and their applicability in attempt criminal cases;

g. Denying Appellant’s oral motion for dismissal of criminal charges for the alleged perjury by Detective Parker at Appellant’s preliminary hearing, when relevant supporting evidence was discovered and Appellant requested her counsel to present it to the court;

h. Denying Appellant’s[] November 14, 2016[] motion for dismissal of charges for lost/destroyed/missing evidence;

i. Denying Appellant’s[] December 12, 2016[] motion for dismissal of charges for lost/destroyed/missing evidence;

j. Denying Appellant’s[] April 21, 2017[] motion for dismissal of charges for violating the speedy trial rule 600?

Appellant’s Brief at 12-13 (some internal capitalization omitted).

Appellant’s brief is 145 pages long and exceeds 33,000 words. This is

in flagrant violation of Pennsylvania Rule of Appellate Procedure 2135, which

mandates that “[a] principal brief shall not exceed 14,000 words.” Pa.R.A.P.

2135(a)(1) (emphasis added). Appellant has also violated our Rules of

Appellate Procedure, in that: Appellant’s brief does not contain “a certificate

of compliance with the word count limit,” as required by Rule 2135(a)(1) and

(d), and Appellant has failed to attach the relevant trial court opinions to her

brief, as required by Rule 2111(a)(10) and (b). We note that these errors and

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violations are particularly egregious here because Appellant is not acting pro

se – an attorney wrote and submitted this brief.

We have authority to dismiss Appellant’s brief, pursuant to Pennsylvania

Rule of Appellate Procedure 2101. This rule declares:

Briefs . . . shall conform in all material respects with the requirements of the[ Rules of Appellate Procedure] as nearly as the circumstances of the particular case will admit, otherwise they may be suppressed, and, if the defects are in the brief . . . of the appellant and are substantial, the appeal or other matter may be quashed or dismissed.

Pa.R.A.P. 2101.

However, we will not dismiss Appellant’s brief on this occasion, as the

violations do not substantially impede our ability to conduct meaningful and

effective appellate review. See, e.g., Commonwealth v. Hardy, 918 A.2d

766, 771 (Pa. Super. 2007) (“when defects in a brief impede our ability to

conduct meaningful appellate review, we may dismiss the appeal entirely or

find certain issues to be waived”). Nevertheless, we caution Appellant’s

counsel against violating our appellate rules in such manner in the future. See

Commonwealth v. Spuck, 86 A.3d 870 (Pa. Super. 2014) (quashing the

appeal due to the appellant’s “flagrant failure to file a brief that conforms to

the Pennsylvania Rules of Appellate procedure”); Commonwealth v.

Stoppie, 486 A.2d 994 (Pa. Super. 1984) (same); see also Commonwealth

v. Briggs, 12 A.3d 291, 343 (Pa. 2011) (the Pennsylvania Supreme Court

declared: “[t]he briefing requirements scrupulously delineated in our

appellate rules are not mere trifling matters of stylistic preference; rather,

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they represent a studied determination by our Court and its rules committee

of the most efficacious manner by which appellate review may be conducted

so that a litigant's right to judicial review as guaranteed by Article V, Section

9 of our Commonwealth's Constitution may be properly exercised. Thus, we

reiterate that compliance with these rules by appellate advocates who have

any business before our Court is mandatory”).

We have reviewed the briefs of the parties, the relevant law, the

certified record, the notes of testimony, and the opinion of the able trial court

judge, the Honorable David W. Lupas. We conclude that Appellant is not

entitled to relief in this case and that Judge Lupas’ July 18, 2018 opinion

meticulously and accurately disposes of Appellant’s issues on appeal.

Therefore, we affirm on the basis of Judge Lupas’ thorough opinion and adopt

it as our own. In any future filing with this or any other court addressing this

ruling, the filing party shall attach a copy of Judge Lupas’ July 18, 2018

opinion.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 02/28/2019

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-6- Circulated 02/08/2019 02:36 PM

1 lTH J,. UDIClAL .DISTRICT � .. OF . PENNSYLVANIA

.C'OMMONWEALTH OF PENNSYLVANIA : IN THE-COURT OF COMMON :: PLEAS : .OF LUZERNE COUNTY V.

MELISSA ANN SGHOLL 'CRIMINAL .DIVIS.ION Defendant/ Appellant

· NO. 1775of.2016

/..

OPINION

I. FAC.T.S AND PROCEDURAL HISTORY

This.matter presently comes before the· Court pursuant to the Defendant, Melissa

Scholl's Appeal bf her conviction and judgment of sentence for attempted criminal

homicide.

The record reflects.that on December 9, 2015, the Defendant and her two children

were found sitting in a parked car in a secluded location, with a hose running from the

��r's exhau.st pipe into. its passenger compartment. Wilkes-Barre Township police were

dispatched to the scene, the Defendant was taken into. custody, and. ·a crtminalintormation

aqainstthe Defendant was subsequentlyfiled. charging herwith 1W.9 counts of attempted

ctirnihal homicide, 18. Pa.C;S.A. § 901 (a); 18 Pa . .C.S.A..§ 2501 (a).

A jury trial commenced on June. 1.3, 2017. A mistrial was. declared during ji,lry

deliberation, however, after itbecame.clear tothe.Court that the jury was unable.to reach

·a unanimousverdict. A second jury trial commenced on -se·ptember. 12� 201'7. Followinq

.... "---·-----·--------------------,-----------'---- -------··- ----------------------------------,---- delberation, the 'jury ·found the Defendant guilty of both counts· of attempted criminal

homicide.1 A Pre-Sentence tnvestlqation (PSI) was ordered, and sentencing was

scheduled for November 20, 2017.

At the Defendant's sentencing hearinq, the Court heard statements from the

Defendant, persons who spoke on her behalf, and counsel. Based on these statements,

and the Court's. review of the PSI and a lette.r and a protection from abuse petition

submitted on the Defendant's behalf, the Court sentenced the Defendant on Counts t

and 2 to consecutive terms of lrnprisonment of sixty (60) to one hundred eighty (180)

months imprisonment, to be served .in . a state correctional institution, followed by

consecutive periods of five (5) years probation, for an aggregate sentence of ten (10) to

thirty (�O) .years imprisonment followed by a consecutive period of ten (10) years

probation .. N. T. 11 /20/17 at 4-.27,. 28, 30-31. The Defendant filed the instant timely appeal of her judgment of sentence on December 5, 2017, and, simultaneous.with this appeal, filed c1 Concise statement of Errors Complained of on Appeal pursuant to Pennsylvania

Rule of Appellate Procedure 1925(b).

II. LAW AND DISCUSSION The Defen.danrs oonctse Statement of Error� raises eleven (11) allegations of

error.' In. the pursuit of brevity and clarity, we summarize and address the Defendant's

issues as we understand them.

1·Although the Defendant's second jury trial took place. over several days, the trial transcript consists of a single volume, thus all citations to the jury trialtrarrscript contained herein will be dated 9/12/17. . 2 The allegations ot-error are contained in paragraphs numbered 2through 12 of the Rule

1925(b) Statement 2 '"'"".

A. FIRST ALLEGTION OF ERROR.

The Defendantflrstalleqesthatme trial court erred by"petn:iitting video interviews

of [the Defendant's son] without proper Notice that the Commonwealth intended to

proceed under 42 Pa; C;S,A. § 5985.1." Pa.RAP. 1925(b) Staternent.at 1: Pertinent to this allegationr Section 5985.1 (b) requires that art adverse party must be notified "of the

proponent's intention to offer the statement and the particulars of the statement

sufficlently in advance of th.e proceeding at which the proponent intends to offer the

statementInto evidence to provide the adverse party with a fair opportunity to prepare to meetthe statement." 42 Pa. C.$.A. § 5985 .. 1(b). Here; theCommonwealth filed notice of its intention to proceed pursuant to 42 Pa.

C.$.A. § 5985.1, commonly known as the tender years exception to the. hearsay rule; on

June 8, 2017. Notice was served on the Defendant, and a hearing was. held on June 12,

201.7 ...At the conclusion of the. hearing, the Court ruled the· evidence admissible under

the tender years exception. N.T. 6/12/17 at 7�8. ihe Defehdant's Rule 1925(b)

Statement concedes that notice pursuant to Section 5985.1 was property given prior to

the Defendant's first trial, but it insists that the Court erred in permitting the evidence in question to. be introduced during the Defendant's re-trlal because the Oornrnonweelth did

not file esecond notice. Rule 1925(b) Statement at 1.

Defendant's argument is waived because at trial, Defense counsel specifically

indicated to the Court that the Defendant did not have an objection to the notice provided

3 by· Commonwealth pursuant to Section 5985.1} Pursuant to Pennsylvania Rule of

Evidence 103, it is clear that error may not be predicated upon a ruling that admits

evidence unless "a timely objection, motion to strike or motion inlimine appears of record,

stating the specificqround of objection, if the specific ground was not apparentfrom the

context." P�.RE. 103(a)(1 ). Further; pursuant to Pennsylvania . Rule of Appellate .

Procedure 3.02, "[ilssues. not raised in the. lower court are waived and. cannot be raised

for the first time on appeal." Pa.R.A:P. 302(a). See also .Commonwealth v. Melendez- Rodiiquez, 856 A..2d 1278, 1287-1289 (Pa. Super. 2004) (en bt:mc) (Generally, an

appellant who fails. to make a specific timely objection waives the.issue.), Hera.because

Defense counsel .speeifically indicated prior to· the Defendant's second trial that he did not

object.to the notice provided by the Commonwealth under Section .5985 .1, this issue has

beenwaived for purposes.of appeal.

Even if the Honorable SuperiorCourt should find this issue preserved, it is without

merit. The plain language of 5885.1 (b) does not require a subsequent notice as

3A review otthe certified record reveals that lrnrnedlatelv prior to voiralre on Septerilper 12; 2017, the following exchange occurred between couneelandtheCourt: · · .Ms .. Sperazza: Your Honor; just a brief housekeeping note. As per the previous trial, I believe there's a stipulation to the authenticity of the GAC DVDs; and the Court has.already made .a ruling on the tender years motion. It's my understanding there's been no new challenge to the tender years motion or the CAC DVDs. Mr. Kansky: Under the law, is that enough notice? Ms. Sperazza: It was granted notice before the Court gave defense counsel until the 30th to file any objection to it, and I have yet to receive any o bi1ecfion..,; The Court: Okay . . Mr .. Kansky: No objection. N.T. 9/12/17 at 16-17. 4 --. Defendant contends. In Commonwealth v. James, 506 Pa. 526, 486 A.2d 376 (1980),

the Pennsylvania Supreme Court reasoned that because a mistrial did not bar re-

presecution, the "status of the case is as though a trial had neveroccurred and places

the matter in a· pre-trial context." James, 506 Pa. at 53t 486 A.2d at 379.4 The

Pennsylvania Supreme Court has since consistently held that a trial court's rulings

rel�ting to legc1l questions determinative of the "law of the easel' are riot subject to

relitiqation and should .not be reopened. Commonwealth v. Mulholland, 549 Pa. 634, 652;

702 A.2d 1027, 1036 ( 1997} (citing Commonwealth v. Starr; 541 Pa .. 564, 664 A.2d 1326

{1995). As such, even if preserved, the Defendant cannot show that.this Court erred in

admitting the. evidence in question, and she is notentitled to appellate relief on th is issue.

4lri $0 concluding, the Supreme Court cited numerous examples of persuasive authority on this issue. James, 506 Pa. at l531; fn, 4, 486 A.3<;1 at 379, fnA (citing Harnage v. .State, 290 Ala. 142, .274 So.2d 352 (1972); State v. Neil, 102 Ariz. 110, 425 P .2d 842 (1967); Tipps v. Mullis, 257 Ark; 622, 519 S.W.2d 67 (1975); People v. Richatd, 85 CaLApp.3d 292 (1978); Ji1 re: Alpine, 203 Cal. 731, .265 P. 947 (1928); Estate of Bartholomae, 261 Cal.App.id 839. 68 Cal.Rptr. 332 (1968); People v. Jamerson, 196 Colo. 63, 580 P.2d 805 (1978); Jamison v. US., 373 A:2d 594 (D.C.App.) (1977); Hess v. State. 146 Ga: App. 874, 247 S.E.2d 546 (1978); .Baird v. Chicago; 61 Iowa 359, 16 N.W. 207 {1883); Statev. Talmage. 104 Idaho 249, 658 P.2d 920.(1983); Papageorqioil v. G.W: Woolworth Co., 66 111.App.3d 873, 23111. Dec: 319, 383 N.E.2d 1346. (1978); Hendrix v. Garret, 203 l180 S.E.2d 745 (1971); State v. Youngr :212 N.V\/. 857, 55 N.D. 194 (1927); Pickle v� Bliss, 418 P.2d 69 (Oklahoma) (1966); State v. Mills, 281 S.C. 60, 314 S.E.2d 324 (1.984); Coronado Oil Company v. Grieves. 642 P.2d 423 (Wyo.1982)). · 5

------·--·------- ·-------------------------·--- 8. SECOND ALLEGATION OF ERROR

The Defendant secondly alleges that this Court erred in permittin� "a screenshot

of alleged srnartphone text messages obtained through a third party to be aomltted."

Pa.RA.P, t925(b) Statement at 2. In addressing this claim, we initially note that the Rule 1925(b) Statement-does not specifically identify the "screenshot" in question by reference

to its exhibit number or by citation to the location in the certified record where it was

admitted. Further, the Rule 1925(b) Statement does not cite to the location in the certified

record where the Defendantobjected to the admission .of this screenshot. We>are thus

left to determine for.ourselves which piecesof evidence the Defendant is referencing, and

when the objection to this evidence was made.

To do so, we have. examined the five.hundred thirty-nine ( 539) pa_ge trial transcript,

in conjunction With the Rule. 1925(b) Statement's indication that "Defendant's mother

[Angela Stanton] was shown a series of text messages that was to represent the text

messages on her phone;" and its indication that Mrs. Stanton made statements with

regard to these messages •. Id. As with ltsuncited reference tome "screenshot," the Rule

1925(b) Statement does not provide citation to the record where the "series of text

rnessaqes" were shown to the witneee or where the wltneas testified to the messages.

Id. We believe. however, that this allegation of error must pertain to Commonwealth

Exhibits #44 and #45, as our review of the record shows thatthose are the only exhibits thatcan be viewed as pertaining to the Defendant's references to"a screenshot of alleged

smartphone text messages obtained through a third party," and "text messages on

[Angela Stanton's} phone." N.T. 9/12117 at 251-252. As such, we. construe the

6 Defendant's allegation of error to be that thi$ Court erred in admitting Commonwealth

Exhibits#44·and #45 into evidence.

In purported support of the allegation that the Court erred in admitting· this

evidence, the 1925(b) Statement nonsensically asserts that "Pennsylvania Rules of

Evidence provides [sic] that evidence must introduce sufficient evidence that the matter

is what it purports to be. Rule 1925(b) Statement at 2 (citing '' In the Interest of PP.. a

Minor, supr« and Commonwealth v. Cruttendon, .976 A.2d 1116, 1181 (Pa. Super2009)"). /d;5 The Rule 1925(b) further states: "[i]n .Commohwealth v: Koch, No, 1669 MDA, 201 t

Pa. Super. Lexis 2716 (Sept. 16, 2011), the unauthenticated texts were inadrnlssible as

they were merely hearsay evidence." Id. Although the statement does not relate the

finding in Koch to the matter at hand. its citation to Koch suggests that the Defendant wishes to assert to the $uperior Court that this Court erred inadmittinq Commonwealth

Exhibits #44 and.#45 without proper authentication.

With regard to Exhibit #44, this allegation of error is without merit. A review of the

trial transcript reveals that the Commonwealth sought to admit Exhibits #44 and #45

(which the Commonwealth indicated were depictions of the· text messages between the

5 Although the Rule 1925(b) Statement references the "Pennsylvania Rule.s of Evidence," it does not cite to a particular Rule, of Evidence. Rule. 1925(b) Statement at 2. Additionally, although the statement provides the case name "In the Interest of F;P;, a Minor,"· it does not provide a case citation, and no such citation appears anywhere in the Rule 1925(b) St�tement. Finally, with regard to the Defendant's citation to Cruttendorl, Which involves violations ·of the Pennsylvania Wiretapping and Electronic Surveillance Ad, 18 Pa.C.S.A. § 5701, et seq; our review of the specific page cited by the Defendant reveals that it contains no reference to any Rule of Evidence, or in anyway supports the Defendant's assertion that the Rules of Evidence provide that "evidence must introduce sufficient evidence thatthematter is what it purports to.be." · · · 7 parties in "thread" form, the way they would appear on a smart phone}, .but Defense

counsel objected based on Jack of foundation, and the objection was sustained, thus

Exhibits #44.and #45 were not admitted at that time. N.T. 9{12/17 at 251-253. The gist

of the contents of these exhibits was later testified to by Angela Stanton herself, however.

who identified a text thread containing the text messages she and the Defendant sent to

each. other prior to the incldent leading to the Defendant's. arrest. N.T. 9/12/17 at 462- 464. Defense Counsel eventually objected to this line of questioning (after the witness

had already identified a series of the texts between herself and the Defendant), but the

Commonwealth pointed out that the witness had acknowledged that the messaqes were.

hers and the objection was overruled. Id. at 462464'.

As the record clearly reflects that Exhibit#44 was not admitted into evidence, this

Court cannot be found to have erred as the Defendant alleges.. Commonwealth v. Roles;

116 A.3d 122, 130 (Pa. Super. 2015). With rega.rd to Exhibif#.45, the Commonwealth

later sought to introduce itInto evidence after both parties had rested, to which Defense

counsel indicated that he had "no objection." Id. at 470. Because the. Defendant did not

object to the admission of Exhibit #45, there is no basis for the.Defendant to asserUhat this Court. erred in admitting it. Commonwealth v. Bomar, 6�9 Pa. 136, 182, 104 A.3d

1179, 1207 (2014); Commonwealth v. Robinson, 543 Pa. 190; 201, 670 A.2d 616; 621

(1995); Pa.RAP .. 302(a) ('ilssuesnot raised in the lower court are waived and cannotbe

raised for the firsttime on appeal:'}:6

6If we are incorrect in our assumption that the Defendantfs asserting error with regard to Exhibits #44 and #45, and .she is instead asserting that this Court erred irr admitting Exhibits #32, #33, #36, #37, #38, #39, #40, #41 and/or #42 (which are photoqraphic 8

·�------------------------------------··-·--·-·--···-·-··-· C. THIRD ALLEGATION OF ERROR.

The Defendant's third allegation of error asserts that th is Court erred. in "permitting

text messages from Defendant's phone obtained through an illegal search and seizure,"

and argues that although the Defendant's· phone was seized pursuant to a Detemoer

2015 search warrant; an additional search warrant was necessary prior to a manual

examination of the phone.performed by Officer Daniel Lewis ln June 2017. Rule 1925(b)

Statement at 273, The Rule 1925(b} Statement indicates that the Defendant made ail

"oral motion in limine.; .objecting to "the said evidence prior to the evidence being offered

attrial," and suggests that "in the interest of justice, this Court" should have considered

this said oral motionin limine." Id. at.3.

In addressing this allegation of error, we initially note that the Defendant's Rule

1925(b) Statement does not specifica(ly identify the' text messages in question by

reference to their exhibit number or by citation to. the location in the certified record where

they were . admitted. Further, . the Rule 1925(b) Statement asserts that. the Defendant .

"objected to the said evidence" via an "oral motion in timine" but it does not· provide

citatlonto the location in the certified record wherethls motion was made. We are thus.

images 9.bt�ined during the manual examination of the Defendant's own flip-style cell phone: See. N.i. 9/12/17 at 244-250), such an allegation has been waived for purposes of appeal by Defense Counsel's failure to. object at trial. . A review of the record dearly reveals. that Defense Counsel specifically indicated that he had "no objection" to the admission ofExhibits #32, #36, #37, #38; #39, #40, #41.and #42 .. N.T. 9/12/17 at242, 244;, 247-249. With regard to Exhibit #33, Defense counsel did not object pr otherwise respond to the Commonwealth's request for admission. Id..at 245. As such, the Defendant has waived errors in admission of these exhibits by failing to object to their admission during trial. Bomar, supra; Robinson, supra; Pa.R.A.P. 302(a). · . 9 . again left · to determine for · ourselves which pie.ces of evidence the Defendant is refer�ncing, arid when an objection.to this evidence was made.

Front our review of the trial transcript, we believe this allegation of error pertains

to Exhibits #32, #33; #36, #37,.: #.38, #39,·#40, #41 and/or #42, as these exhibits consist .of photographic images of the text rnessages obtained from the manual examination of

the Defendant's phone. N.T. 9/12/17 a.t243�247. Additionally, the record shows that on

the third day of the Defendant's second Jury trial Defense counsel "objecljed] to the

admission of any text messages extracted and photographed by [Officer] Dan Lewis in

June of [2017l'' Id. at 233.7 We thus construe the Defendant's third allegation of error to

be that this Court erred in denying her mid-trial request to suppress .Cornmonwealth's

Exhibits #32, #33; #36, #37, #.38, #39, #40, #41 and #42. A review ofthe record and

pertinent case law suggest that this allegation of error is Without merit, and that the

Defendant is· not entitled to appellate relief on th is ground.

7 In response to the Defendant's objection, the Cornrnonwealth pointed out tothe Court that D.efense counsel had been aware of the manual examination of the Defendant's phone for months, thus the Defendant's objection was essentially an untimely motion to suppress. N.T -. 9/1.2/17 at 2;33. The. Commonwealth further asserted that even if the suppression request was timely, the Defendant was not entitled to suppression of the text messages because the phone. was obtained pursuant to a valid search warrant and had been in the Commonwealth's possession since that time, obviating the need for an additional search warrant. Id. at 233-234. Lastly, the Commonwealth opined that even if there had been a violation; the remedy would not be suppression of the evidence. Id. at 234. In response, Oefense counsel acknowledged that as far back as December 2015., a discovery report indicated that a ma nual examination of the phonewould be. necessary; and Defense counsel further acknowledgeo that the Defendant had been provided with the resulting text messages in June of2017. Id: Defense counsel did. not dispute that his objection should be considered a suppression request; nor did counsel provide any explanation for the delay in making that request Id. As such, fhls Court denied the Defendant's untimely request to suppress the text messages. ta. at 235. · · ro ·

----·-------- """""·

As the Commonwealth suggests, the Defendant's objection to the evidence was.

properly considered a motion to suppress. See Commonwealth v. Marconi, 996 A.2d

1070, 1071 (Pa. Super; 2010), aff'd, 619 Pa.401, 64A.3d 103.6 (2013).8 Fµrther, as the Commonwealth pointed out, the motion was not timely made. "Under Pennsylvarua Rule

of Criminal Procedure 5781 unless otherwise required in the interests ofjustice, all.pretriai

requests, including a request for suppression of evidence, must be included in one.

omnibus pretriatmotion." Commonwealth v. Borovichka, 18 A.3d 1242, 1.248 (Pa. Super.

2011) (citing Pq.R.Crim.P.; 578, Comment). Such omnibus pre-trial motions must be filed

within thirty (30) days of arraignment. Pa. R. Crim. P. 579(A). Here, the Defendant did not

file a timely omnibus pre-trial motion requesting the suppression of the exhibits i.i1 question.

on the grounds currently asserted. Further, although the Rules of Criminal Procedure

provide four exceptions to the Omnibus Pretrial Motion filing deadline, as discussed

below, the Defendant has not. argued,. rnuchIess proven, that any of those exceptions.

apply to her. Pursuant to Rule 579, a motion must be "filed and served within 30 days after

arraignment, unless opportunity therefor did not exist, or the defendant or defense.

attorney, or the attorney for the Commonwealth, was not aware of the grounds for the

motion, or unless the time for filing has been extended by the court for causeshown."

Pa.R'Cnm.P. 579(A). Rule 581 provides an exception to the thirty (30) day period "where

8 Although the Defendant's Rµle 1925(b) Statement now characterizes her objection as .an "oral motion in limtne" ft was not so characterized atthe time it was made, and, as noted above, Defense counsel .did not dispute the Commonwealth's position at trial that. the objection constituted.a suppression request. N�T. 9/12/17 at233. 11 .........

the interests of justice otherwise require/ Pa.R..Crim.P. 581 (B). Whether the opportunity

did not previously "exist" or the "interests otjustice" otherwise. require is a matter for the

discretion of the trial judge. Commonwealth v. Sodomskv, 137 A.3d 620, 626 (Pa. Super.

2016), appeal denied 638 Pa, 753, 158 A.3d 1236 (2016}, cert. denied, 137 S.Ct. 1205,.

197 LEci.2d 247 (2017); Marconi, 996 A.2d at 1072; With regard to the applicability of the firstand second exceptions (pertaining to the

opportunity to make the motion and the awareness of the defendant/defense counsel of

the grounds for the motion), by Defense counsel's own admission he was aware of the

date of the issuance of the search warrant and the date.of the manual examination of the

Defendant's phone at least as early as June 2017, if not earlier. f\LT. 9/13/17 at 233-234.

As such. the Defendantcould have challenged the evidence obtained through the manual

examination of the phone on these grounds weli before: September 14, 2017, when the

jury had been empaneled and the Defendant's trial had reached its third day. As the

Superior Court has stated in slrnilar situations, "[tlhis is not a ·case Where there was no

opportunity to learn the facts which might possibly have formed the basis of a suppression

request Instead, it is a simple case of counsel's failure to act, forwhatever reason."

·commonwealth v. Duhaan, 3.90 A.2d .$2Q, 823'. (Pa. Super. 1978) (finding nothing to

indicate that defendant.lacked the opportunity to learn facts necessary to file. a timely pre-

trial suppression motion, and concluding that simple failure to apprise oneself of such

facts does. not entitle one. to relief from the time requirements of the Rules of Criminal

Procedure). As such, the first and. second exceptions do not apply here to excuse

Defendant's failure to comply with the applicable time requirements. See Borovichka, 18

A.3d .at 1248 (A suppression claim raised for the first time in a motion in. limine; 12 unaccompanied by an explanation for its untimeliness, does not fall under any of Rule

579{A)'s. filing exceptions and should be deemed waived).

With regard to the third exception, pertaining to a court-ordered extension of time

for cause shown, this exception is inapplicable here because no request was made to

extend the time for filing.

With regard to the fourth exception, pertaining to the interests oflustice, Defense

counsel wholly failed to articulate, and this Court did not find, any circumstance with

regard to this allegation that. would render it ir, ·the interest of justice to excuse the

Defendant's failure to make the suppression request prior to the third day of her second

jury trial.

Because the Defendant failed to file-a timely motion to suppress the .evidence in

quesfion, and because she has not shown that any of the exceptions to the-applicable

time requirements apply, she has waived the issue of suppression and it was well within

this Court's discretion to refuse her relieton this issue. Pa.R'Crim.P. 581 (B) ("[i]f timely

motion is not made hereunder, the issue of suppression of such evidence shall be.

deemed to be waived."). See also Commonwealth ·v. Bauiiihammers, 960 A:2d 59, 76--·

7.7 (P�. 20Q8) (Indicating that the Court has consistently affirmed the principle that a

defendant waives the ground of suppressibillty as a basis for opposition to the

Commonwealth's introduction of evidence when he or she faiis to file a suppression

motion pursuant to our rules of criminal procedure.") ..

Even if the Defendant had made a timely suppression request, however; there is

no merit to her assertion that a second warrant was necessary . prior to the manual

examination other phone. As.the record clearly reflects, and as the.Defendant does not 13

·-·--"-·········-·--------·--·----------------- ..-------·-- ---- ·--------·--------------------------·--·---·-- · dispute, hercell phone was seized pursuant to a validly issued search warrant. Following

the execution of that warrant, Officer Daniel Lewis of the Plains Township Police

Department was tasked with .examininq the phone. N-.T. 9/1.2/17 at 237. Officer Lewis

testified that ln the case of a flip phone like the Defendant's, a forensic extraction is initially

conducted; and, if that process does riot yield the information sought, a manual

examination is then conducted. Id at 240. ln this ease, the forensic extraction was

conducted in December2015, resulting in the recommendation that a manual extraction

would be necessary. /di at 260, 271. The mariuai examlnatlon was eventually conducted

in June 2017. Id. at 260. It is uncontested that the Defendant's cell phone was in the

Oommonwealth'scustody at all. times from the time lt was seized pursuant to the valid

search warrant to the time it was. manually examined, Further. Officer Lewis confirmed

that the text messages discovered· as the result of the manual. examination in June 2017

were the same as those that would.have been discovered had the examination occurred

in December 2015 .. /d. at 272�273,

Under these circumstances, it was not necessary for the Commonwealth to secure.

a second search warrant priorto conducting the manual examination of the phone. See

Commonwealth v. McEnany, 667 A.2ci 114$., 1149 (Pa, Super. 1995) (citing

Commonwealth v. Copenhefet, 526 Pa. 555, 587 A.2d 1353, 1356 (1991) abrogated on

other grounds by Commonwealth v. Rizzuto, 566 Pa. 40, 777 A.2d 1069 (2001 ). 9 Thus,

9 In McEnany, supra, the Superior Court found that ho additional warrant was necessary to search the memory chip of a validly seized cellular telephone. In Copenhefer; supre, the Pennsylvania Supreme Court held that a warrant authorizing the seizure of a personal computer authorizes .reproduction. of the documents stored withiri without the necessity of a second warrant. 14

-------------------------------------·····················-··-·,· · ·········-····. even if raised in a timely suppression motion. the Defendant would 'not be entitled to relief

on a claim that the 'lack of a second warrant required· suppression of the evidence in

.quesfion.

D. FOURTH ALLEGATION OF ERROR

The Defendant's fourth allegation oferror asserts that this Court erred in admitting

"text messaqes with no time stamp." Rule 1925(b) statement at 3. As With the prior

allegations of error, this allegation does not specifically identify which text messages it

pertains to by use of their exhibit number or by citation to the· location in the certified

record where:they were admitted, We are thus left to assume the.Defendantchatlenges

all of the text messages involved here. Of greater significance than the failure to

specifically identify the text messages, however, is the.Rule 1925(b) Statements failure

·to cite to the. location in the. record where the Defendant objected to the admission ofthe

text messages on the ground that they lacked a timestamp. Our independent review of

the record confirms that no such objection was made, and the Defendant has thus waived

this allegation of errerfor purposes of appeal, Bomar, supra; Robinson, supra: PaR.A.P:

302 (a).10· Even Jf this allegation had been preserved for review, lt is without merit. Tlie

Oefendant suggests that the text rnessaqes were introduced. without confirmation ·of the

time frame in which they were sent, or "even who sent the text messages." Rule 1925(b ).

Hi Additionally as we noted above, the record clearly shows that Defense Counsel specifically indicated that he had "no objection" to the admission. .of Exhibits #32, #36, #37, #38, #39, #40, #41, #42, and #45, and that he did not objector otherwise respond tothe Commonwealth's request toadmit Exhibit #33. N.T. 9/12/17 at 242, 244, 247�249, 470. 15 ..........':,

Statement at 3 (citing Commonwealth v. Koch, 1669 MDA 2010 (Pa Super. 2011);

Commonwealth v. Sherlock, .2069 MDA 2013 (Pa. Super 2014).11 Contrary to this claim,

however, the record confirms that the Commonwealth introduced detailed and specific

testimony from Officer Daniel Lewisthat the text messages in question were sent between

the Defendant's phone and .a contact labeled "mom" on the. night of December 9, 2015.

N.T. 9/12/17 at 237, 243-:250. Further, Angela Stanton, the Defendant's rnother, . . specifically identified the text messages as being those exchanged between herself and

the Defendant durinq the time period in question. Id: at 449, 462':464 .. As. such,.even if

preserved, this allegation of error is without merit and entitles the Defendant to norelief.

E. FIFTH ALLEGATION OF ERROR

The Defendant next asserts that this Court erred in aUoWing the Jury to take copies

of "the alleqedtexts" into the 1'jury deliberating room." Rule 1925(b) Statement at 3. As

with its prior allegations of error, the Rule 1925(b) Statement fails to cite to specific exhibit

numbers and falls to cite to the location in the certified record where the Court permitted the jury to take such written material into the. deliberation room. We note; however, that

the statement cites Pennsylvania Rule of Criminal Procedure 646(C)(2) to support the

allegation that jurors are. strictly prohtbited from "posaeeetnq any written or otherwise

·11Because Koch and Sherlock are unpublished memoranda of the Superior Court. it is improper for the Defendant to .elte to or rely· upon them. See I. O. P. Ru ie 65.37(A) of the Superior Court of Pennsylvania ("An unpublished memorandum decision shall not be relied upon or cited by a Court or a party in any other action or proceeding, exceptthat such ..a memorandum decision may be relied upon or cited (1) when it is relevant under the doctrine. of law. of the case; res judicata, or collateral estoppel, and (2) when the memorandum is relevant to a criminal action or proceeding because it recites issues raised and reasons for a decision affecting the same defendant in ·a prior action or proceeding."). 16 recorded confession by the defendant.'; Id. Further. the statement complains that the

jurors were permitted to take copies of the texts indicating that the Defendant "wanted to

kHI herseif" and that she "couldn't do it alone anymore." Id. We thus b�lieve that this

allegation oferror pertains to Commonwealth Exhibits #32 and #33, as those are the

exhibits pertaining to the text messages "Going to kill myself" and •i1 can't do it alone no

more," sent from the Defendant's cell phone to the contact "morn." N.T. 9/13/17 at24q, 246. Therefore, we construe this allegation or error to be that this Court violated Rule

646(C)(2) when it permitted the jury to take CommonwealthExhibits #32 and .#33. into the

deliberation room.

As with each of its previous allegations, the Defendant's Ru.le 1925(b) Statement

falls to point to. the location in the record where the Defendant objected to the Court

allowing the jury to take these exhibits Jnto the deliberation room on the ground that doing

so would violate Rule 646. Our examination of the record confirms that the Defendant

did not.object to the jury taking these exhibits into the deliberation room on thlstor any

other) ground, she has waived this allegatibh of error for purposes of appeal. Bomar,

supra; .Robinson, siux»; Pa.R.A.P. 302(a). Even if preserved, however, there is no merit to the allegation that allowing thejury

to have these exhlbits during deliberation violated Rule 646{C)(2). That Rule specifies

that during deliberations, thejury shall not be permitted to have 11a copy of �ny written or

otherwise recorded. confession by the defendant." Pa.R.Ciim.P. 646(C)(2V2 Here, by

12. Black's Law Dictioriary·ctefiries confession as follows: Confession; n. A criminal suspect's oralor written acknowledqrnentof guilt, often including .. details about the crime .. Cf. admission; . . . . . . statement. �- . 17

···-·-· ···-·····---·-·······---·---------------------------------- ·----·----·------·---------------------------- the Defendant's own admission, see Rule 1925(b) Statement at 3, the texts in question

are not "confessions," as they are not an acknowledgement of, or even pertaining to, the

Defendant's guilt with regard to the attempted murder of her children, the crimefor which

she was charged. Because :they are not confessions for purposes of Rule 646(C)(2), it

·was within this Court's discretion to allow them into the deliberation room. Pa:RCrim.P.

646 (A) ("Upon retiring, the jury may take with it such exhibits as the trial judge deems

proper, except as provided in paragraph (C)."); Commonwealth v. Parker, 104 A.3d 17;

27 (Pa. Super. 2014) (citing Commonwealth v. Barnett, 50 A.3d 176, 194 (Pa. Super,

2012), appealdenied, 619 Pa. 684, 6.3 A.3d 772 (2013) (''[C]ourts [in this Commonwealth]

have rareJy found that materials given to juries during deliberations constitute. reversible

error."), As such, the Defendant cannot show a Violation of Rule 646(C)(2),, and it was

not reversible. error for the Court to allow the jury to view Exhibits #32 and #33 while

deliberating.

F. SIXTH ALLEGATION OF ERROR The Defendant's sixth allegation of error also raises a Rule 646 claim, asserting

that this Court erred in not allowing the jury to have copies of the elements.of the crime

"A confession is an acknowledgment in express words; by the. accused in a criminal case, of.the truth of the main fact charged or of some essential partof it." John H. Wigmore, Eviden.ce in Trials at Common Law § .821, at 308 (James H. Chadbourn ed., 4th rev. ed. 1970). "The dlstlnctlon between admissions in criminal cases and confessions by the accused is. the ·distinction in effect between admissions of fact from which the guilt of the. accused may. be inferred by the jury and the express admission.of guilt itself." William P. Richardson, The Law of Evidence§ 394, �t268 (3d.ed. 1928). Black's Law Dictionary (10th ed. 2014). 18

�-------------·------·-·--··-····-··-····--···· ····· charged. Rule 1925(b) Statement at 4. Again! the Rule 1925 Statement does not specifically identify the location in the certified record where this information was

requested by the jury, where the Court addressed the request! or where the Court's

determination was challenged by the Defendant .. Based on our own review of the record, however, we· have confirmed that the jury requested copies of the· elements of the crime

after deliberating for approximately two hours. N.T, 9/12/17 at 529. In response, the

Court indicated to the parties that it intended to reread the instructions pertaining to the

elements ofthe crime and to provide some examples of the facts that were alleged by the

Commonwealth. Id. Defensecounseldidrrot object to this resolution of thejury's.request.

and thus the Defendant has waived her right to appellate relief on the claim, Bomar;

supra; Robinson; supra; Pa.R.A.P. 302(a), Even if preserved, this. allegation wouid not entitle theDefendant to relief. As-the

Defendant herself acknowledges, see Rule 1925(b) Statement at 41 under Rule 646, the

trial judge may permit the jury to have for use during .deliberatlons written copies of the

portion of the judge's charge on the elements, of the offenses upon which the jury has

been instructed, Pa.RCrim.P. 646(8). Here, if was well with.in this Court's discretion to

decline to provide a copy ofthe charge on the elements, and to instead reread the charge

to the jury.13

1.3The R1.1le 1925(b) Statement .also indicates that uthe Court read the instructions and added words such as "strapping the children in the backseat," "driving to a secluded lot," an.d "packing a.green garden hose." RUie 1925{b) Statement at 4 (no citation to transcript. provided). A review of the transcript revea.ls that the Court did not include the above. quoted words or phrases.in rereading the elements of the crime charged. The Court did, however, use as examples of theacts all�ged by the Commonwealth ''puUing the children in the car," i•driving to the Williams bus lot," and "putting a hose in the tailpipe of the 1.9 G. SEVENTH ALLEGATION OF ERROR

The Defendant's seventh allegation of error assertsthatthe Court erred in failing

to give "a Jury instruction and definition of 'Intent to Kill' .and failed to give jury instruction and definition of transferred intent and 'its' applicability in attempt cases:" Rule t925(b) Statement at 4. Yet again, the Rule 1925(b) Statement does not provide the location in

the certified record where the Defendant requested these specific jury instructions, or

objected to the jury instructions as given, and our own review of the record shows that no

such objection was .made. At the conclusion of testimony, the Court explained to the

parties that it intended to give thesamejury lnstructions used during the-Defendant's first

trial, and it requested the parties to provide any additional jury instructions. that would

differ from those previously given. NT. 9/12/17 at 470. The Commonwealth specifically

stated that it did not object to the instructions as previously given. Jd. at 471. Defense

counsel did not voice an objection . to the use of the . previously given instructions, and did

not provide the Court with any additional proposed instructions. Id. at 470-471.14 As the

result ot the Defendant's failure to cite to the place in the certified record where the

vehicie/' N.T. 9/12/17 at .53'1 as is contemplated by and set. forth· in Pennsylvania Suggested Standard Criminal Jury lnstructicn 12.901 A 1 for Attempted Murder where it states " ... that the defendant did a certain act that is; [he] [she] [describe act]: ... " Regardless, the Defendant did. not object at trial to the use ofthese examples, and the Defendant's Rule · 1925(b) Statement does not assert that it was error for the Court to employ them.thus.they are not at issue for purposes of the current appeal. 14 As the record confirms, the Court instructed the jury with regard to .atternpted murder in accordance with the current edition of the Pennsylvania Suggested Standard Criminal Jury Instructions. N.T. 9/12/17 at 518.. The jury charge given included the instruction that in order to find the Defendant guilty of attempted murder; the jury must find, among other things, that the Defendant "had the specific intent to kill [her children]. That is, she had a fully formed intent to kill,.and. was consciousof her own intention." Id, 20

·-----------------------------------------····· referenced instructions were requested, coupled with our confirmation that no such request was made, the Defendant has waived the right to object to the instructions as

given, or the Court's failure to gJve the specific instructions now referenced. See Pa.R.Crim.P. 647(0) ("No portions ofthe charge nor omissions from the charge may be

assigned as error, unless specific objections are made thereto before the jury retires to.

deliberate."): Commonwealth v. Walter,. .632 Pa. 174, 233, 119 A.3d 255, 290 (2015)

(finding that appellant who failed· to request a particular instruction at trial, and made no

objection to the charge actually given, waived challenge to failure to give particular

instruction) (citing Pa.RAP. 302; Pa.R'Crirn.P. 647(8); Commonwealth v.. Pressley. 584

Pa,.624, 887 A.2d 220, 223-225 (2005)).15

H. EIGHTH.ALLEGATION OF ERROR

The Defendant next asserts that the trial court erred when it denied "the

Defendants · Oral Motion for Dismissal of Charges For Alleged Perjury By Detective

Parker, at Defendant's Preliminary Hearing." Rule 1925(b) Statement at 4. As With all

prior allegations, the Rule 1925(b) Statement does not provide citation to the· certified.

record with regard to this claim of error. Reviewing the jury trial. transcript; we are able to

15 Even if preserved, this allegation of error is without merit. As iioted above, the record clearly reflects that the Court properly instructed the jury as. to the required intent. Additionally, the Defendant's citation to Commonwealth V; Griffith, 456 A:2.d 171 (Pa. Super 1983) is unavailing. Rule 1925(b) Statement at 4. Griffin, which involved the specific allegation that the lower court erred ln instructing the jury thatthey could find the defendant. guilty of attempted m urder if they found that he attempted to commit murder of the second or third degree, is factually distinguishable from the instant case, which did· not involve such an instruction, Griffin, 456A.2d.at 176 (emphasis added). Further; with regard to. an insfructlon on transferred intent, the Rule 1925(b) Statement wholly fails to address that doctrine, and fails to explain how the doctrine applies to this matter. 21

· ··-· --·---·---·------------------------------- · confirm that on September 12 i 2017, .after the jury was sworn and instructed and the day's

luncheon recess was completed, Defense counsel made an oral rnotlon to dismiss all charges against the Defendanton the grounds that Detective Deborah Parker perjured

herself at the Defendant's May 12, 2016 preliminary hearing before Magisterial District

Judge Detzel, N.T. 9/l2/17 at 17. The. Commonwealth objected to the motion, asserting

that the allegation should have been raised ih a habeas hearing long before the start of

the. Defendant's second jury trial. Id, at 18. Following Defense counsel's detailed

explanation of the basis for the motion, the. Commonwealth responded that Defense

counsel had grossly misunderstood the testimony offered at the preliminary hearing and

had totally misconstrued and· misunderstood the discovery materials sent to the

Defendant. Id. at 23�26, 27. In denying the Defendant's motion to dismiss, this Court

noted thatthe Defendant had ample opportunity to file a timely written motion raising such

an allegation, but failed to do so. Id. at 19-20.16

Examining the Defendant's current claim that the Court erred .in denying her Motion

to Dismiss, we opine that this allegation of error provides no relief on appeal. Initially, it

is clear to the Court that the Defendant's motion (made long after the alleged perjury

occurred, after the Defendant's first trial, and after the time for pre-trial motions in the

second trial had passed) was. properly denied. Further, as observed by the

16 We note with displeasure that the. Rule 1925(b) Statement incorrectly states that this court denied the motion because the Court "never had not heard' of such a thing." Rule 1925(b) Statement at 4 (no citation to the. certified record provided for the quotation attributed to the Court). This Court goes to great .lengths to ensure that it does not misquote counsel or the parties to anyproceedinq, and it expects the same consideration from counsel. · · 22 Commonwealth .in its response to the Defendant's Rule 192�(b) Statement, errors at a

prelihlinary hearing are cured if·the defendant is found guilty at trial. Commonwealth's

Answerto Defendant's.Rule 1925(b).Statement at 7 (citing Commonwealth V; Sanchez,

623 Pa. 253, 82 A. 3d 943 (2013); Commonwealth v. Tyler,. 581 A,2d 326 (Pa. Super.

1991)). As explained by the Sup�rior Court in Commonwealth v. Fewell:. Appellant's allegation oterror at.the preliminary hearing is moot. In Commonwealth v. Tyler, 402 Pa. Super. 429, 587 A.2d 326 (1991), this Court held that "[ o[nee appellant has gone to trial arid been found guilty ot the crime, any defect in the preliminary hearing is rendered irnrnatenall.]" Id. 587 A.2d at 3.28.. In Tvlef, the appellant appealed from a Judgment of sentence entered after a jury convicted him.of possession and delivery of a controlled substance. The appellant claimed that the Commonwealth: established its prirna facie case at the preliminary hearing by the hearsay testimony· of a confidential police informant, thus viobating his constitutional right to confront his accuser. This Court rejected the appellant's claim arid held that "[slince the Commonwealth met its burden of proving appellant guilty·beyond a reasonabte doubt at trial, even if the Commonwealth had failed to establish a prirna fade case at the preliminary hearing, it is immaterial." Id. (citations .omitted).

Commonwealth V; Fewell, 654 A.2d 1109, 1112 {Pa. Super. 1995). Thus, even if the

Defendant had raised the alleged perjury in a timely fashion, that issue has been rendered immaterial because she has since been found guilty following a jury trial. As such. she is

nbtentitled to.appellate relief on this allegation:

I. NINTH ANDTENTH AL,LEGATIONS OF ERROR

The Defendant's next two allegations of error relate to this Court's denial of the

Defendant's motions to dismiss based on allegations that the Commonwealth lost,

destroyed and/or tampered with evidence material to this case.

Speciffcally; the. Defendant's ninth allegation of error claims that th is Court erred in

denying a "Motion for Dismissal of Charges for Exculpatory Lost/Destroyed/Missing

23.

--·--·----·----------------------------------- ·- Evidence," filed "when her car (material evidence) was destroyed and two (2) green

garden hoses were tampered with and manipulated while they were in the possession of

the Commonwealth." Rule 1925(b) Statement at 5.17 The Defendant's tenth allegation

of error assails. the denial of a "Motion for Dismissal of Charges for

Lost/Destroyed/Missing Evidence" filed "when a packed suitcase and pillows (material

evidence) was destroyed while it [sic] was in the possession of the Commonwealth:" Id.

Although the Rule 1925(b) Statem�ntdoes not cite to the location in the certified

record where these motions were made and addressed by the court, our review of the

record confirms that on November 14, 2016, the Defendant. filed a motion titled

"Defendant's Motioh to Dlsmlss All Criminal Charges Because Material Evidence is

Missing Tampered With, Or Not Preserved," which raised .allegations pertaining to the

Defendant's car arid two green garden hoses. Motionfned 11/14/16. The Commonwealth

filed an answer to the motion, and theissue wasaddressed ata hearing; Following the

hearing, the parties were permitted to file additional briefs. which they did on November

28, 2016. Before .the Court decided the Defendant's motion to dismiss, however, the

Defendant filed an additional motion on December 11, 2016; tifl€!d.''Defendant'.s Second

Motion To Dismiss All Criminal Charges Because. Additional Material Exculpatory

Evidence is Missing; Destroyed, Or Not Preserved," raising allegations with regard to

'Defendant's packed suitcase, two (2) pillows, and blanket" Motion filed 1.2/11/16. The

11With regard to the hose observed running from the tailpipe of the Defendant's car into the passenger compartment through the driver's window, we note that testimony and evidence introduced at trial established that what initially appeared to be a single hose was, in fact, two hosesjotned together. N.T 9/12/17 at 179. 24

........................,- ,._,..• , , ,,,._,.--,.- ·-----------------------� Commonwealth answered the Defendant's additional motion, and on May 15, 2017, the

Court filed an Opinion and Order denyihg both of the Defendants motions. We rely on

the analysis and reasoning contained therein in response to both of the. Defendant's

current allegation's error;

To briefly summarize. with regard to the Defendant's car, we recognized that the

car had been destroyed by a third party, 'withoutpermissicn of the Commonwealth, the

vehicle's owner, or the proceeding required by law." .and that such destruction was under investigation by the Pennsylvania State Police." Opinion filed 5/15/17, at 2. (citing

Oornmonwealth's Answer 11/15/16; N.T. 11/15/16 at26.:-27). Further, we determined that

there is no evidence of record. that the vehicle's disappearance and destruction was the

result of any bad faith on the part of the Commonwealth. Id. at 3, 6. Finally, we concluded

that the Defendant's vehicle constituted only "potentially useful evidence," no.t"materially

exculpatory evidence." Id. at 6.18 Therefore, we concluded · that the failure to preserve. such evidence did not constitute the denial of due process. Id. at 3, 6 (Citing.Arizona v.

Youngblood, 188 u.s.·51, 58 (1998) (holdinp that "unless.a criminal defendant canshow bad faith on the part of the. police; failure to preserve potentially useful evidence does not

constitute a nerrlal · of due process of law."). See .also Commonwealth v. Snyder, 599 Pa.

656, E>72, 963 A:2d 396, 406 (2009) (finding "potentially exculpatory" soil samples to be

"textbook case of potentially useful evidence:');

is In doing so, we specifically noted the Defendant's acknowledgement that the vehicle constituted only "potentially eX.culpatory evidence." Opinion filed .5/15/17 at6 (citing N.T. 11115/16 at 18, 29). 25 With regard to the .garden hoses, as addressed above, when the.Defendant and her children were found.seated in her parked car on the night of December 9, 2015. the

hoses were found running from the tailpipe of the car, throuqh.the driver's window, into

the. passenger compartment. N. T. 9/12/17 at 133, 135;.135, 149. The Defendant's Motion

to Dismiss asserted that on November 1, 2016, the date Defense counsel inspected and photographed the evidence, Detective Parker and Assistant District Attorney Sam

Sanguedolce "liberally touched and handled [the] physical evidence.with their bare hands,

(never wearing gloves), thereby contaminating or tampering with if" Motion filed 11 /14/16 at 4. The Motion further asserted that the. hoses. appeared to Defense counsel to have

been "washed or otherwise cleaned.'; ld: at 5. The Motion to Dismiss asserted that the

Commonwealth's conduct "violates PA Rule 901 of Criminal Procedure because the

Commonwealth is required to produce. evidence sufficient to support a finding that the

item is what the proponent claim it is, and .thls again is imposslble." Id. at 5�6 (citing

Pa.R.Crjm.P. 901).19 Finally, the motion stated that "no forensic inspection/ an!'.J/or

testing" was conducted on the evidence from December 9, 2015 through the time the

Commonwealth allegedly "mishandled, wrohgfuUy manipulated, and washed or cleaned"

it. to. at 6,

19 Pennsylvania Rule pf Criminal Procedure 901 pertains to "Initiation of Post-Conviction Collateral Proceedings. Defendant' Motion to Dismiss obviously intended to cite to Pennsylvania Rule of i=vidence 9d1(a), which provides that "[t]o satisfy the requirement ofauthenficatinq or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is," Pa.RE. 901 (a). 26 In response to the Defendent's request to dismiss the charges against her based

on her allegations that the hoses were cleaned and that Detective Parker and Assistant District Attorney Sanguedolc.e touched the hoses Without wearing gloves, the

Commonwealth indicated to the court that the hoses had not been washed, and were in· '.

the same condition they were in when initiaily collected. N.T. 9/12/17 at 25-:26. The.

Commonwealth further suggested that because the Defendant was charged with

attempted murder, the absence. of exhaust remnant in the hoses would not serve to exonerate her ... Id.

In denying the Defendant's request to dismiss the charges against her based on

her allegations that the hoses were cleaned and that Detective Parker and Assistant

District Attorney Sanguedolce touched the hoses without wearing gloves we noted that

there was no credible evidence presented that the hoses were cleaned. Opinion filed

5/15/17 at 4. We additionally pointed out that the. hoses are in the possession of the Commonwealth, weretnspected by the Defendant, ·and remained available for further

inspection. Id. Further, we found that the Defendant failed to Show how the alleged

handling of the hoses without gloves would ln any way alter the evidentiary value of

whatever tests the Defenda.nt might conduct on them. Id. atfi. FiriaUy, we concluded that

the.Defendant wholly failed to show that the hoses, or any findings that might be obtained

through testing ofthe hoses.are plainly exculpatory. Id. at 4. Because all that was shown

with regarc:i to the hoses is that they could have been subject to tests which might have

provided exonerating evidence, they: are at most 'potenttally useful" evidence, not

"materially.exculpatory evidence;" such that the Defendant.hadto demonstrate. that the

Commonwealth acted in bad faithin its preservation and handling of the hoses, Id. at 5 27 ..-....

(citing Atiiona v. Youngblood, supra).20 This the Defendant did not do. There is simply

no evidence indicating that evidentiary material relative. to the hoses was destroyed and.

even if it were, the destruction of evidence involved only potentially useful evidence and

did not involve bad faith,

Similarly, with regard to the "packed suitcase and pillows" referencedby the Rule

1925(b) Statement's tenth ailegatioh of error! we denied the Defendant's request to

dismiss the. charges against her based· on her allegation that the Cernmonwealth tailed to

preserve such evidence because there is nothing of record to suggest that. these items are anything more than potentially useful tothe Defendant. She has not established that

they constitute materially exculpatory evidence, and she has Wholly failed to show that

there was any bad faith. on the part ofthe Commonwealth with regard to the handling of

this evidence."

20 lnceed, with regard to the. alleged "cleaning" ofthe hoses, Defense counsel. specifically indicated to the. Court that.he was not allegiog "intentional malfeasance or wrongdoing:" {N.T. 11115/20,16 at 20). . . . . . 21 Further, to the extent that the Defendant's motions to dismiss relied on Brady v. Maryland, 373 U.S. 83 (1963), we note that such reliance is misplaced .. As the Superior Court.explained in Commonwealth v. Free, 902 A.2d 565, 573 (Pa. Super. 2006): [M]atters such as .this one are not to be analyzed under Brady, as made clear by the United States Supreme Court: The Due Process Clause of the Fo1..1rte'enth Amendment, as interpreted in Btadv, makes the good or bad faith of the State irrelevant when the State fails to disclose to the defendant material[,] exculpatory evidence. But we think the. Due Process Clause requires a different result when we deal with the failure of the State to preserve evidentiary matenar of which no more can be said · then 'that it could have been subjected to tests, the results ofwhich might have. exonerated the defendant Youngblood, supra at 57, 109 S.Ct. 333. 28

····-··-··-- ·-------------------------------------- The Defendant's two Motions to Dismiss were properly denied. As such, the

Defendant is. not entitled to appellate. relief based on her claim that.this Court erred in

denying the motions.

J. ELEVENTH ALLEGATION OF ERROR

The Defendant's Rule 1925(b) Statement lastly asserts that this Court erred in

denying her '!Motion for Dismissal of Charges for Violating the Speedy Trial Rule 600.''

1925(h) Statement at 6.. Although the Rule 1925(b) Statement does not cite to the location

in the certified record where the motion in question was made by the. Defendant or

addressed by this Court, our review of the record reflects that the Defendant filed a Rule

600 motion on April 21, 2017, asserting a violation of Rule 600(A)(2)(a).22

Pertinent to the Court's eventual denial. of the motion, the Defendant alleged

therein thatpursuantto Rule 600(A)(2), she should have been broughtto trial=on or about

April 4, 2017;" Motion filed 4/21/17 at 2;23 The motion went on to describe what the

Like the Court in Youngblood, we ate confident that Brady does not present the properanalysis in this case. Instead, [California v: Trombetta, 467 U;S. 479 (1984)], and.its progeny in the federal courts and in this Commonwealth apply. · .Commonwealfhv. Free, 902 J\:2d 565, 573 (Pa; Super. 2006) {italics added). �� Pursuant to Rule 600(A)(2){a), trial in a court case in which a written complaint is filed against t.he defendant must commence Within 365 days from the date on which the complaint is filed. Pa.R'Crirn.P. 600(A)(2)(a); Further: (1) For purposes of paragraph (A), periods of delay at any stage of the proceedings caused by the Commonwealth when the Commonwealth has failed to exercise due diligence shall be included in the computation of the timewithin which trial must commence. Any other periods of delay shall be excluded frorri the computation. Pa.R.Crim.P. 6Q.O(C)(1). 23 The motion indicated thatthis date takes into account eighty-five (85) days that she acknowledges are. attributable to. defense continuances. Motion filed 4/21 /17 at 2. The motion did not provide any other specific time periods, but lndicated that "each and every 29 Defendant termed as the repeated "de-listing" of her case from the "'trial ready/trial

standby' list," which the moflon-asserted amounted to "untairly grant[ed] continuances" to

the Commonwealth. Id. at 3, The motion urged the Court to find that because the

Commonwealth did hot exercise due .diligence by "ehrontcally remov[iilg]"the Defendant's

case from the trial list," all computatlon.ottlme should run against the Commonwealth for

Rule 600 purposes. Id. at 4. The motion further asserted that mere assertlons of due

diligence and unsupported facts are insufflclent to "rneet the burden of a 'preponderance

of evidence' necessary to prove the existence of due diligence in bringing .a defendant to

trial, Id. at4 .. 5 (citing Commonwealth v. Caden 487A.2d 1 t, 4 (Pa.Super.1984)). The Commonwealth filed an Answer and supporting brief to the Defendant's

motion to dtsmlss, .specitlcally addressing each delay in the case and the party the

Commonwealth betieved sho.lJl.d be held responsible for the. delay. Brief filed 4/26/17 at

3�7.24 Thereafter, the Commonwealth urged the Court.find that it has acted With due .

. diligence in bringing. the Defendant to trial. td. at 8. Additlonally, the Commonwealth

disputed the Defendant's claim thatthe time during which motions were pending before

· the Court is attrioutable.to the Commonwealth. Id. A hearing on the Defendarifs Rule eoomcnon was conductedon May, 19, 2017,

after which the. Defendant's Rule 600 motion was denied. In addressing and denying the

motion. we acknowledged the Defendant's reference to "de-listtmqs," Which she believed

month" since "at least October2016," the Luzerne County District Attorney's office "de- listed'; the Defendant's case from a "trial ready/trial standby list.'! Id: at 3.. :i4 We note that we are in agreement with the time periods and attribution of delay to the

parties set.forth in.the Commonwealth s April 26, 2017 brief. 1

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constituted "continuances" attributable to the Commonwealth for purposes ofcomputation.

of time for Rule 600. We opined, however. that this characterization was the result of

Defense counsel's misunderstandinq of the manner in which criminal cases are listed for

trial in Luzerne County. N.T. 5/19/17 at 8-9. We specitically explained that while not

every case on a trial list is called tor jury selection on any given Monday of the trial term,

the cases that were not called remain on that trial list, pending trial.. Id. at 8-'9. Despite

Defense counsel's confusion, cases are not "de-listed." Id. We further explained that a.

revlewof the docket in this matter reflects that there is. substantial time·which is excludable

from the Rule 600 computation, including numerous continuances agreed to by the

parties and pending pre-trial motions. Id. at 9. Finally, we explained thatany delay in

bringing the Defendant to. trial was not attributable to the Commonwealth for failure. to

exercise due diligence. Id.

Our denial of the Defendant's Rule 600 motion is fully supported by the record,

and the current allegation of error asserting otherwise is without merit In so suggesting,

we initiafly note that the Defendant's Rule 1925(b) Statement's single specific allegation

accompanying the. claim that her Rule 600 . rnotlon should have been granted is her

assertion that "ta} sign1ficantde1ay in the prcceedtnqs was not due to the unavailability of

the. Defendant, but rather due to the failure .of the Honorable Court to .rule on this said motion for over 6 months." Id. As noted above, however, the Defendantfiled the Rule

600 motion on April 21, 2017, and the motion was denied by this Court on May 19, 2017.

The record thus beiies the. Defendant's claim that there was a. delay of "over 6 months" in

ruling on the motion.

31 Looking beyond this. confusion on the Defendant's part, a careful review of the

record as a whole confirms that the Defendant's Rule 600 motion was properly denied.

As the Comment to RUie '300 explains:

[T]he.inquiry for a judge in determining whether there is a violation .of the time periods in paragraph (A) is whether the delay is caused solely by the. Commonwealth when · the Commonwealth has· failed to exercise due diligence; .See, e.q., Commonwealth v. Dixon, 58H Pa. 28; 907 A:2d 468 {2006); Commonwealth v: Matis, .551 Pa. 220, 710 A.2d 12 (1998). If the delay occurred as the result of circumstances beyond the Cornmonwea'th's control and despite its due diligence,. the time is excluded: See, e.g. Commonwealth v. Browne, 526 Pa. 83, 584 A2d 902 (1990); Commonwealth V;. Genovese, 493 Pa. 6.5, 425 A2d 31)7 (1981'). In determining whether the Commonwealth has. exercised due diligence, the courts have explained that "[d]ue diligence is faet-speclflc, to be determined case-by-case; itdoes not require perfect vigilance and punctilious care, but merely a showing the Commonwealth has 'put forth a. reasonable effort" See, e.g., Commonwealth v. Selenski. 606 Pa 51, 61, 994 A.2d 1083, 1089. (Pa. 2010) (citing Commonwealth v. Hilland Commonwealthv. Come/I, 558 Pa. 238;.256, 736 A.2d 578, 588 (1999)). . Delay in the time for trial that is attributabie to the jiJdicic;1ry may be excluded from the computation of time. See, e.g., Commonwealth v. Crowley, 502 Pa, 393, 466 A.2d 1009· (1983). However; when the delay attributable-to the court is so egregious that a constitutional right has been impaired, the court.cannot be excused for postponing the defendant's trial and the delay will not be excluded. See Commonwealth .v. Africa, 524 Pa. 118, .569 A.2d. 9.20 (1990):

Pa.R.Crim.P. 600, Comment. Although "[t]he Commonwealth . has the burden of

establishing by a. preponderance of the, evidence that it exercised due diligence

throughout the prosecution;'.' it is equally clear that "the administrative mandate of Rule

600 was not designed to insulate the. crirnlnally accused from good faith prosecution ·

delayed through no fault of the Commonwealth;" Commonwealth v. McCarthy, 180 A. 3d

368, 374-:375 (Pa. Super: 2018).

Here, the record before the Court clearly supports this Court's determination that

the Commonwealth met its burden of establishing by a preponderance of the evidence 32 -- .-.,,,

that it exercised due diljgence throughout the prosecution, and that no violation of Rule

600(A}(2) occurred. In reaching this conclusion, we note that to the contrary, the record

reflects that any delay that occurred here was the resultof circumstances beyond the

Commonwealth's control and despite. its due diligence.

We respectfully suggest to the. Superior Court that the denial of the Defendant's

Rule 600Motion is supported by the record, and did not representan abuse of discretion on this Court's part, because the. denial did not override or misapply the law, was not

manifestly unreasonable, and was not the result of partiality, prejudice, bias or ill-will.

Commonwealth v. Bradford,. 616 Pa. 122. 134, 46 A.3d 693, 700 (2012). As such, the

Defendant's. current allegation of error in this reqard does not provide a basis for relief on

appeal.

CONCLUSION

For the foregoing reasons, the Defendant's appeal should be denied in its entirety,

and the Defendant'sjudqment of sentence affirmed.

33.

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