J-S18023-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JAMIE LYNN SCHWARTZ : : Appellant : No. 1840 EDA 2020
Appeal from the Judgment of Sentence Entered October 5, 2017 In the Court of Common Pleas of Wayne County Criminal Division at No(s): CP-64-CR-0000335-2016
BEFORE: PANELLA, P.J., McCAFFERY, J., and COLINS, J.*
MEMORANDUM BY McCAFFERY, J.: FILED SEPTEMBER 27, 2021
Jamie Lynn Schwartz (Appellant) appeals nunc pro tunc from the
judgment of sentence1 entered in the Wayne County Court of Common Pleas,
following her non-jury conviction of involuntary deviate sexual intercourse
(IDSI), indecent assault,2 and related charges for the sexual abuse of her
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 Appellant’s notice of appeal incorrectly stated the appeal was taken from the
September 15, 2020, order denying her post-sentence motion nunc pro tunc. Appellant’s Notice of Appeal, 9/28/20. In a criminal case, the appeal lies from the judgment of sentence, made final by the denial of a timely filed post- sentence motion. Commonwealth v. Shamberger, 788 A.2d 408, 410 n.2 (Pa. Super. 2001) (en banc). Our Prothonotary has corrected the caption accordingly.
2 18 Pa.C.S. §§ 3123(a)(7), 3126(a)(7), (8). J-S18023-21
husband’s two minor nephews.3 On appeal, she argues the trial court
improperly permitted her and her husband (and co-defendant) to be
represented by the same counsel absent a sufficient waiver, and improperly
allowed the Commonwealth to introduce Tender Years4 hearsay evidence
absent sufficient notice. Appellant also contends the jury’s verdict was against
the weight of the evidence, and trial counsel provided ineffective assistance.
For the reasons below, we affirm.
The facts, as developed during Appellant’s joint non-jury trial with her
husband, are as follows. During the summer of 2013, Michael’s nephews, A.S.
and N.S., would stay at Michael and Appellant’s trailer over the weekends,
while their mother, Jessica Bisceglie (Michael’s sister) worked. N.T. Trial Vol.
I, 6/21/17, at 71, 73, 104; N.T. Trial Vol. II, 7/17/17, at 3-5. At the time,
A.S. was 12 years old and N.S. was 9 years old. N.T., Trial Vol. I, at 70, 103.
Both victims testified that, during the visits, Appellant and Michael would walk
around the house naked “most of the time,” and force A.S. and N.S. to take
off their clothes too. Id. at 74, 106-07. Michael would often have an erection.
Id. at 79, 112.
3 As will be discussed infra, Appellant’s husband, Michael Schwartz (Michael),
was also charged in connection with these crimes, and tried jointly with Appellant.
4 See 42 Pa.C.S. § 5985.1 (permitting admission of otherwise hearsay, out of
court statements by child victim or witness under certain circumstances).
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The victims described a game they were forced to play called “spin the
rock.” N.T., Trial Vol. I, at 74-75, 106. The rock they used had an arrow on
it, and whoever the arrow pointed towards would have to do “something” like
“get naked.” Id. Appellant and Michael also forced A.S. and N.S. to watch
pornographic videos, during which time Appellant was “jerking off” Michael.
Id. at 80-81, 111-12. Both victims also saw Appellant “giving Michael a
blowjob,” and having sexual intercourse. Id. at 76, 86, 108, 110.
Appellant also sexually abused the victims at Michael’s direction. See
N.T., Jury Trial Vol. I, at 87, 117-18. Appellant gave A.S. a “blowjob” twice,
and gave N.S. a “hand job” once or twice, while Michael held the victims down
by their shoulders. Id. at 76-78, 109-110. A.S. testified that Appellant tried
to have sex with him, but he “didn’t have a hard-on.” Id. at 78-79. N.S. also
testified that he was at Appellant and Michael’s trailer on Easter with I.L.,
Appellant’s minor niece.5 See N.T., Trial Vol. I, at 114, 116; N.T., Trial Vol.
II, at 83-84. N.S. stated that in order for him and I.L. to get their Easter
baskets, I.L. “would have to play with Michael’s penis and [N.S.] would have
to play with [Appellant’s] boobs.”6 N.T., Trial Vol. I, at 114. Both victims
testified that Michael talked to them about a “circle of trust,” explaining
“[w]hat happens in the house, stays in the house.” Id. at 81, 106. ____________________________________________
5 I.L. was 17 years old when she testified at trial in July 2017. See N.T., Vol. II, at 83.
6 The testimony does not specify what year this incident occurred.
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In May of 2014, N.S. revealed to his mother, Bisceglie, that “bad things
happen” when he and A.S. stayed at Appellant and Michael’s trailer, and “that
they have a circle of trust there.” N.T., Trial Vol. II, at 6. Although he did not
provide details, he told Bisceglie that “they had to walk around the house
naked.” Id. at 7. Bisceglie did not call the police; instead, she called her
mother (also Michael’s mother), and told Michael “he’ll never see [the boys]
again[.]” Id. at 8-10. However, sometime after January of 2015, she allowed
the boys to visit the trailer again, but only when A.S. had a cellphone with
him. See id. at 12-14.
In the summer of 2016, N.S. told his father, John Fitzgerald, about the
“circle of trust” and the “sexual stuff” he and A.S. did at Appellant’s trailer.
N.T., Trial Vol. I, at 130. Fitzgerald subsequently provided a written statement
to the Wayne County District Attorney’s Office. Id. at 132. Pennsylvania
State Trooper Wayne Thomas interviewed N.S. on June 3, 2016, and N.S.
relayed to him the sexual acts he was forced to witness or participate in “two
and half years prior to the date of [the] interview.” See id. at 137-42. N.S.
told Trooper Thomas that he told his mother about the abuse and “his mom
was supposed to be contacting the police, but nobody would believe her.” Id.
at 143.
In August of 2016, Bisceglie was at a Walmart store with A.S., when
Michael approached her. N.T., Trial Vol. II, at 14. He showed her a picture
of Bisceglie’s fiancé and her father “trading guns.” Id. at 15. Bisceglie’s fiancé
was a convicted felon, who was not permitted to possess a firearm. Id. At
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that time, Michael told her “he wasn’t going to use those pictures[,] he just
needed them to protect himself and that [her] boys need to fix what they have
done and [he and Appellant] wanted them to [say] they made all this up and
that the lied.” Id. Bisceglie told Michael that “it’s out of [her] hands now.”
Id.
In October of 2016, Appellant and Michael were charged with one count
each of IDSI and statutory sexual assault, three counts of indecent assault,
and two counts each of indecent exposure and corruption of minors. 7 The
Commonwealth filed a notice of joinder on October 12, 2016, indicating its
intent to try Michael and Appellant together.8 See Commonwealth’s Notice of
Joinder, 10/12/16.
On November 15, 2016, Appellant filed an omnibus pretrial motion,
requesting, inter alia, a change of venue. The trial court conducted a hearing
on December 30th. During the hearing, the prosecutor noted that trial counsel
— Nefertiti Jordan, Esquire — represented both Appellant and Michael, who,
the prosecutor felt had “varying degree[s] of culpability.” N.T. Omnibus H’rg,
12/30/16, at 35. Attorney Jordan assured the court that the co-defendants
executed a written conflict waiver, although she did not have it with her in
court. Id. at 36. Accordingly, the trial court proceeded to question Attorney
Jordan about the joint representation, and then colloquied Appellant and ____________________________________________
7 18 Pa.C.S. §§ 3122.1(b), 3127(a)(7), 6301(a)(1).
8 Michael’s case was docketed at CP-64-CR-0000336-2016.
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Michael separately, under oath. See id. at 37-49. At the conclusion of the
hearing, the court determined that while a potential conflict did exist, both
Appellant and Michael chose to proceed with joint representation. See id. at
50; Order, 1/3/17. On January 27, 2017, Attorney Jordan forwarded the
parties’ written conflict waiver to the trial court. See Letter from Attorney
Jordan to President Judge Raymond L. Hammill, 1/9/17. That waiver, signed
by the parties on June 28, 2016, pertained to dependency reunification
proceedings, which resulted from the criminal investigation. See id., Conflict
Waiver, 6/26/16. Attorney Jordan also provided an email she sent to
Appellant and Michael on August 2, 2016, which referred to a retainer
agreement, presumably for her representation in the criminal proceedings, as
well as the following statement: “[P]lease note the waiver of conflict of issue
still pertains to this matter as the alleged incident is the primary reason for
your potential conflict.” Id., Email from Attorney Jordan to Appellant and
Michael, 8/2/16.
The cases were scheduled for a non-jury trial commencing on June 21,
2017, before President Judge Raymond L. Hammill. One week before trial, on
June 13th, the Commonwealth filed a “Tender Years Notice” pursuant to 42
Pa.C.S. § 5985.1, indicating it intended to elicit five prior, out of court
statements made by N.S. to various individuals involved in the investigation
— specifically, Wayne County Children and Youth Caseworker Maryanne
Blackledge, Trooper Thomas, N.S.’s parents (Bisceglie and Fitzgerald), and
N.S.’s uncle, Joseph Fitzgerald. See Commonwealth’s Tender Years Notice,
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6/13/17, at 1-2. The Commonwealth attached these prior statements to its
notice. See id. On June 20, 2017, Appellant filed a motion to exclude the
Tender Years testimony asserting the Commonwealth provided insufficient
notice pursuant to Section 5985.1(b), and, in any event, the statements were
made under unreliable circumstances. See Appellant’s Motion to Exclude
Tender Years Testimony, 6/20/17, at 1-2 (unpaginated).
On the following day, June 21, 2017, prior to the start of trial, President
Judge Hammill considered Appellant’s motion to exclude the Tender Years
testimony. The court first heard argument concerning the timeliness of the
motion, and, after taking a short recess, denied Appellant’s objection on that
ground. See N.T., Trial Vol. I, at 7-30. The Commonwealth then presented
witnesses to support its claim that N.S.’s statements were made under reliable
circumstances. See id. at 39-61. Following additional argument by counsel,
the court determined that N.S.’s prior out of court statements were
admissible.9 Id. at 67. The court proceeded immediately to the non-jury
trial.10
Both victims testified regarding the abuse they suffered while staying
with Appellant and Michael in their trailer. Under cross-examination, A.S.
testified he did not know if Appellant was pregnant during this time, although ____________________________________________
9 The trial court did not require further testimony from these witnesses during
the Commonwealth’s case-in-chief, presumably because it was sitting as fact finder.
10 At the conclusion of testimony on June 21st, the trial court continued the
case until July 17, 2017. See N.T., Trial Vol. I, at 168-69.
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he described her stomach as “[n]ot big.” N.T., Trial Vol. I, at 99. Similarly,
N.S. could not remember “anything strange” about Appellant’s naked body.
Id. at 120, 127. Both boys also denied noticing anything unusual about
Michael’s penis. See id. at 100, 127.
Appellant and Michael both testified on their own behalf. They denied
all allegations of abuse and overt sexual behavior in front of the victims, and
denied that the victims stayed with them on the weekends between May 2013
and May 2014. See N.T., Trial Vol. II, at 135-36, 138, 145, 151, 154-55.
Michael also explicitly denied Bisceglie’s claim that he attempted to blackmail
her. See id. at 141-42. In addition, Appellant and Michael presented
evidence that they each had noticeable physical abnormalities at the time the
abuse allegedly occurred — primarily during the summer of 2013.
Appellant testified she met Michael in April of 2013, when she was
already pregnant with another man’s child. See N.T., Trial Vol. II, at 156.
They married on May 26, 2013, and she gave birth by cesarean section on
June 7, 2013. Id. at 156, 160, 183. Appellant stated she had her gall bladder
removed in August of 2013, was treated for a hernia within her incision in
September of 2013, and discovered she was pregnant with Michael’s child in
November of 2013. See id. at 158-60. That child was born on May 15, 2014.
Id. at 156. Appellant described her stomach as looking “like [she] got
attacked by a cat,” as a result of her two cesarean sections. Id. at 162.
Appellant also presented her gynecological medical records, which
documented the difficulties she encountered during her pregnancies. See id.
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at 41-71 (testimony of Nurse JoAnn Anderson, custodian of records at
Women’s Health Care).11
For his part, Michael testified that his penis, which was uncircumcised,
was “swelled, painful, and bleeding” for about three months prior to January
of 2014. N.T., Trial Vol. II, at 132. He stated he had a circumcision on January
13, 2014, but had to undergo a second surgery in February of 2014 because
“[t]here was a problem with the first operation.” Id. at 131-33.
Appellant and Michael also presented testimony from friends and family
members who disputed the victims’ accounts that they stayed with Appellant
and Michael during the summer of 2013. See N.T., Trial Vol. II, at 81 (family
friend Ralph Huebner testified A.S. attended church with his grandmother,
Barbara Schwartz, “four out of every five weeks” between May 2013 to May
2014); 93-95 (Appellant’s stepfather, Charles Misszler, testified that between
May 2013 and May 2014, he would pick up Appellant’s two older children and
never saw the victims at the trailer); 99-100, 104 (Michael’s sister, Bailey Ann
Schwartz, testified she spent “one to two weekends a month” at the trailer
from May 2013 to May 2014 and the victims were never there, and A.S. “spent
the summer of 2013 mainly” with his grandmother); 115, 118-19 (Michael’s
11 We note that Appellant’s medical records indicated she weighed only 126
pounds on May 28, 2013 – less than two weeks before she gave birth to her first child — and 124 pounds on April 18, 2014 — a month before giving birth to her second child. See N.T., Trial Vol. II, at 67-68. Although she acknowledged she was losing weight before the delivery of her child in June of 2013, Appellant claimed she still had a “huge stomach.” Id. at 157.
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mother, Barbara Schwartz, testified that the victims never went to Appellant
and Michael’s trailer without her and never stayed there overnight between
May 2013 and May 2014); 129 (Michael’s father, Thomas Schwartz, testified
the victims did not spend time alone with Michael and Appellant in the trailer
between May 2013 and May 2014, and “[t]he times that they were there we
were there also”). In addition, I.L. testified that she never did “anything at
all sexual” with N.S. or Michael, and she was not at Appellant and Michael’s
trailer on Easter of 2014. See id. at 88, 90.
At the conclusion of testimony and argument on July 17, 2017, President
Judge Hammill found both Appellant and Michael guilty of all charges. The
next day, the court ordered Appellant to undergo an assessment by the Sexual
Offenders Assessment Board (SOAB) to determine if she met the criteria for
classification as a sexually violent predator (SVP). See 42 Pa.C.S. § 9799.24.
On October 5, 2017, the court conducted a combined SOAB and sentencing
hearing. The trial court determined Appellant met the criteria for classification
as an SVP, and sentenced her to an aggregate term of 12 to 40 years’
imprisonment.12 See N.T., Sentencing, 10/5/17, at 21, 29. That same day,
Attorney Jordan filed a motion to withdraw as counsel. The court granted the
motion and appointed the Wayne County Public Defenders Association to
represent Appellant on appeal. Order, 10/10/17.
12 The court imposed consecutive sentences on all counts with the exception
of statutory sexual assault and two of the three counts of indecent assault.
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On October 25, 2017, Chief Public Defender Steven Burlein, Esquire,
filed a timely notice of appeal. The next day, the trial court directed Appellant
to file a Pa.R.A.P. 1925(b) concise statement of error complained of on appeal.
See Order, 10/26/17. After requesting and receiving two extensions of time,
on December 19, 2017, Attorney Burlein filed a statement of intent to file an
Anders13 brief pursuant to Rule 1925(c)(4). See Pa.R.A.P. 1925(c)(4).
Subsequently, on September 20, 2018, this Court dismissed Appellant’s
appeal when Attorney Burlein failed to file a brief. See Commonwealth v.
Schwartz, 3494 EDA 2017, Order, 9/20/18.14 Nearly seven months later, on
July 8, 2019, Attorney Burlien withdrew his appearance.
On July 17, 2019, Appellant filed a timely, pro se petition for collateral
relief pursuant to the Post Conviction Relief Act (PCRA). 15 By that time,
President Judge Hammill had retired, and the Honorable Jonathan Mark,
specially presiding, was assigned to oversee the proceedings. See Trial Ct.
Op., 9/15/20, at 5-6. Present counsel, Mark Moulton, Esquire, was appointed
to represent Appellant. Attorney Moulton filed an amended petition on
December 20, 2019, asserting, inter alia, that prior counsel was ineffective for
13 See Anders v. California, 386 U.S. 738 (1967).
14 We note the appeal was originally dismissed on July 18, 2018. However, upon application of counsel, we reinstated it on August 14th. Thereafter, counsel once again, inexplicably, failed to file a brief and the appeal was dismissed on September 20th. See Schwartz, 3494 EDA 2017.
15 42 Pa.C.S. §§ 9541-9546.
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failing to file post-trial motions, and perfecting her direct appeal. See
Appellant’s Amended Petition for Post-Conviction Relief, 12/20/19, at 3-4
(unpaginated). By order entered February 24, 2020, upon agreement of the
Commonwealth, Judge Mark granted reinstatement of both Appellant’s post-
sentence motion and direct appeal rights nunc pro tunc. See Order, 2/24/20,
at 2-3. The court directed Appellant to file a post-sentence motion within 14
days. Id. at 3.
On March 10, 2020, Appellant filed a post-sentence motion challenging,
inter alia, the weight of the evidence supporting her convictions and the
excessiveness of her sentence.16 On July 7, 2020, the post-sentence motion
was denied by operation of law. See Pa.R.Crim. P. 720(B)(3)(a) (“If the judge
fails to decide the motion within 120 days, or to grant an extension . . ., the
motion shall be deemed denied by operation of law.”). However, on July 15th,
Judge Mark entered an order striking the July 7th order. See Order, 7/15/20.
Judge Mark deemed the 120-day period for deciding the post-sentence motion
“tolled by the COVID-19 pandemic-related Emergency and Court Closure
16 The 14th day after the court’s February 24th order was March 9, 2020. However, the docket indicates the February 24th order was not mailed to the parties until February 27, 2020. See Trial Court Docket, 2/24/20; Pa.R.A.P. 108(d)(1) (date of entry of criminal orders is date clerk of courts mails or delivers copies of order to parties). Thus, Appellant had until March 12th to file a timely post-sentence motion, and her motion filed on March 10th, was timely.
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Orders[.]”17 Id. Thereafter, on September 15, 2020, Judge Mark entered an
opinion and order denying Appellant’s post-sentence motion. This timely nunc
pro tunc appeal follows.18
Appellant raises the following four issues for our review:
I. Whether the . . . trial court erred as a matter of law and/or abused it[ ]s discretion in that [Appellant] was permitted [to] proceed under joint representation and waiver of jury without sufficient colloquy of either and [the court’s] reliance on a defective waiver?
II. Whether the . . . trial court erred as a matter of law and/or abused it[ ]s discretion in allowing tender years hearsay without the defense having sufficient meaningful notice of the Commonwealth’s intent to use that evidence?
III. Whether the . . . trial court erred as a matter of law and/or abused it[ ]s discretion in the weights applied to testimony concerning [Appellant’s] distinctive physical appearance ____________________________________________
17 We recognize that an order denying post-sentence motions by operation of
law is not subject to reconsideration. See Pa.R.Crim.P. 720(B)(3)(c). Nevertheless, we agree with Judge Mark’s determination that a significant period of time during the relevant 120-day period was tolled due to the Pennsylvania Supreme Court’s COVID-19 judicial emergency. See In re Gen. Statewide Jud. Emergency, 228 A.3d 1283, 1285 (Pa. 2020) (suspending all time computations from March 19, 2020, through April 1, 2020); In re Gen. Statewide Jud. Emergency, 230 A.3d 1015 (Pa. 2020) (extending judicial emergency through June 1, 2020). Thus, we conclude Judge Mark had the authority to strike the July 7th order and consider Appellant’s post-sentence motion.
18 Appellant complied with the trial court’s direction to file a Pa.R.A.P. 1925(b)
statement of errors complained of on appeal. We note Appellant raised several additional claims in her Rule 1925(b) statement that she does not include in her brief. See Appellant’s Concise Statement of Matters Complained of on Appeal, 10/29/20, at 1-2 unpaginated (asserting the trial court erred or abused its discretion in: “disallowing relevant evidence of the physical appearance of” Appellant, denying a change of venue, and imposing a lengthy sentence).
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during the time of the charged events, the witnesses’ lack of noting the patchwork of scars that existed, and [the] testimony of [I.L.] which directly contradicted the Commonwealth’s evidence?
IV. Whether the . . . court based upon matters uniquely of record in the instant case [Appellant] suffered ineffective assistance of counsel by trial counsel’s ineffective explanation of joint representation and jury waiver; lack of pre-trial motions to suppress evidence, suppress prior bad acts evidence, inadequate support for the change of venue and recusal motions; failing to impeach witnesses or present credible evidence that refuted witness testimony in violation of [Pa.R.E.] 603 & 613 with no reasonable basis to omit such impeachment; failing to present evidence of viable defense(s) including improper use of medical witness testimony, omission of relevant medical testimony and lack of use of available medical testimony?
Appellant’s Brief at 5-6 (some capitalization omitted).19
First, Appellant contends the trial court improperly permitted Attorney
Jordan to represent both her and Michael absent a sufficient waiver of
conflict.20 Appellant’s Brief at 24. Appellant insists that the “mere existence
of [a] conflict” between co-defendants represented by the same counsel
“vitiates the proceedings, even though no actual harm results.” Id. at 25.
Here, she maintains there was an actual conflict since she “could have chosen
to be a witness against” Michael, and could have argued “she was coerced into ____________________________________________
19 We have renumbered Appellant’s issues for ease of disposition.
20 Although Appellant also challenged the sufficiency of her jury waiver colloquy in her statement of questions, she does not address that particular claim in the argument section of her brief. See Appellant’s Brief at 24-29. Accordingly, it is waived for our review. See Pa.R.A.P. 2119(a) (argument section of brief must contain discussion of claim and citation of pertinent authorities).
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criminal activity” by him. Id. at 25-26. Although she acknowledges a conflict
may be waived, Appellant argues the written waiver used by Attorney Jordan
applied to family court proceedings, where Attorney Jordan represented
Appellant and Michael “in tandem regarding reunification of their children.”
See id. at 26 (citation omitted). However, the waiver did not provide
“sufficient notice” of the different burdens of proof and consequences she
faced in a criminal proceeding. See id. at 26-27. Thus, Appellant insists her
conflict waiver did not constitute “a knowing and intelligent choice,” and once
the trial court received the written waiver, it should have recognized Appellant
“may have been misinformed by counsel[.]” Id. at 27-28.
It is well-established that a defendant may “knowingly and intelligently
waive a constitutional right” — including the right to be represented by
individual counsel. See Commonwealth v. Szekeresh, 515 A.2d 605, 607
(Pa. Super. 1986). “Moreover, the Commonwealth merely needs to establish
a knowing and intelligent waiver of a constitutional right by a preponderance
of the evidence.” Id. Joint representation, alone, “is insufficient to support a
finding of a conflict of interest, and is not a per se” constitutional violation of
the right to effective counsel. Commonwealth v. Evans, 451 A.2d 1373,
1375 (Pa. Super. 1982). Nevertheless, an appellant challenging joint
representation need not show that actual harm resulted; rather, they must
“at least show the possibility of harm.” Id. The Pennsylvania Supreme Court
has explained:
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[An] appellant will satisfy the requirement of demonstrating possible harm, if [they] can show, inter alia, that [they] had a defense inconsistent with that advanced by the other client, or that counsel neglected [their] case in order to give the other client a more spirited defense.
Commonwealth v. Breaker, 318 A.2d 354, 356 (Pa. 1974) (citation
omitted).
Were we to evaluate Appellant’s conflict waiver solely on the basis of
Attorney Jordan’s written waiver form, we might agree her waiver was
insufficient since it applied to the reunification matter. Although the written
waiver does note possible conflicting theories of the events (i.e., that either
one of the co-defendants may have forced the other to sexually abuse the
victims), it does so in the context of reunification with their children. See
Conflict Waiver, 6/28/16.
Nevertheless, what Appellant fails to acknowledge is that President
Judge Hammill conducted a thorough in-court colloquy with both her and
Michael before permitting the joint representation. See N.T., Omnibus H’rg,
at 40-49. Appellant affirmatively responded that she understood the
following: (1) she and Michael could have conflicting defenses, and the
Commonwealth had indicated “she may be less culpable” than he; (2) counsel
will be required to argue the same “theory of innocence” for both her and
Michael; (3) counsel would not be able to advise her to accept a plea bargain
or immunity if representing both her and Michael; and (4) if she could not
afford separate counsel, the court would appoint counsel for her. See id. at
38, 40, 42-43. When asked why she wanted to proceed with the same
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attorney, Appellant responded, “Because we didn’t do it.” Id. at 44.
Moreover, when the court explained that she “might be caught up in this
because of what [her] husband did[,]” Appellant responded, “I understand
that[.]” Id. Following this colloquy, Attorney Jordan also explained to
Appellant that she could request a separate attorney at any time before trial.
See id.
Based on the comprehensive colloquy conducted by the trial court, we
conclude Appellant is entitled to no relief. Although President Judge Hammill
acknowledged a potential conflict of interest between the co-defendants
existed, he determined it was “their choice to continue with joint
representation.” N.T., Omnibus H’rg, at 50; see also Order, 1/3/17.
Appellant’s responses during the colloquy support the court’s ruling.
Next, Appellant contends the trial court erred or abused its discretion
when it permitted the Commonwealth to introduce N.S.’s hearsay statements
pursuant to the Tender Years Rule, absent compliance with the statutory
notice requirements.21 Appellant’s Brief at 18. She insists the
Commonwealth’s Tender Years notice, sent five days before trial, was
insufficient under the Rule, and the fact that she was provided with the actual
21 In her motion to exclude this testimony, Appellant argued that the Commonwealth provided insufficient notice of its intent to present Tender Years testimony, and that the hearsay statements were unreliable. See Appellant’s Motion to Exclude Tender Years Testimony, 6/20/17, at 1-2 (unpaginated). On appeal, however, she challenges only the Commonwealth’s alleged failure to comply with the notice requirement.
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statements months earlier in discovery is irrelevant. See id. at 18-19.
Relying on Commonwealth v. Crossley, 711 A.2d 1025 (Pa. Super. 1998),
Appellant argues the Commonwealth was required to notify her, explicitly,
that it intended to use the statements as Tender Years evidence. See id. at
20-21.
We review a trial court’s evidentiary rulings for an abuse of discretion.
Commonwealth v. Luster, 234 A.3d 836, 838 (Pa. Super. 2020). However,
“[i]ssues of statutory interpretation are questions of law” of which we employ
de novo review. Id.
The Tender Years Rule, 42 Pa.C.S. § 5985.1, “was enacted to permit
admission of hearsay statements made by child victims of sexual abuse, and
at the same time provide safeguards for truthfulness and the constitutional
rights of an accused.” Crossley, 711 A.2d at 1026. The Rule “recognizes
that child witnesses pose difficult problems for the parties, the court and the
jury.” Id. at 1028. Therefore, it “makes a special accommodation [by
admitting prior hearsay statements of a child witness] to enable the
prosecution to prove its case[.]” Id. In turn, however, the Rule requires the
prosecution to provide the defense with “a type of notice that is direct and
specific in order to provide a meaningful opportunity to challenge the
hearsay.” Id.
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At the time of Appellant’s trial, the Tender Years Rule provided, in
relevant part:22
(a) General rule.—An out-of-court statement made by a child victim or witness, who at the time the statement was made was 12 years of age or younger, describing [sexual offenses], not otherwise admissible by statute or rule of evidence, is admissible in evidence in any criminal or civil proceeding if:
(1) the court finds, in an in camera hearing, that the evidence is relevant and that the time, content and circumstances of the statement provide sufficient indicia of reliability; and
(2) the child either:
(i) testifies at the proceeding; or
(ii) is unavailable as a witness.
* * *
(b) Notice required.—A statement otherwise admissible under subsection (a) shall not be received into evidence unless the proponent of the statement notifies the adverse party of the proponent’s intention to offer the statement and the particulars of the statement sufficiently in advance of the proceeding at which the proponent intends to offer the statement into evidence to provide the adverse party with a fair opportunity to prepare to meet the statement.
42 Pa.C.S. § 5985.1 (2004) (emphasis added).
This Court first considered the parameters of the Tender Years Rule
notice requirement in Crossley. In that case, the appellant was accused of
sexually assaulting a three and one-half year old boy he was babysitting.
22 The statute has been amended twice since Appellant’s trial, but the substance of the Rule remains the same. Effective August 30, 2021, the Rule now permits out-of-court statements by child witnesses who are under the age of 16. See 2021, June 30, P.L. ___, No. 29, § 1, effective in 60 days [Aug. 30, 2021].
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Crossley, 711 A.2d at 1025. On the day of trial, the Commonwealth sought
to present the victim’s out-of-court statements to his mother and
grandmother, as well as a videotaped interview of the victim by a Children
and Youth Services (CYS) worker. Id. at 1026. The appellant objected,
asserting he first received the mother’s and grandmother’s statement four
days before trial, and the videotaped interview the night before trial. Id. The
Commonwealth did not dispute the appellant’s claims, but argued the victim’s
mother had testified at the preliminary hearing. See id. at 1027. The trial
court found that the Commonwealth’s notice with regard to the mother’s and
grandmother’s testimony was sufficient under Section 5985.1, but that its
notice of the videotaped interview was insufficient. Id. Thus, the victim’s
mother and grandmother testified to the victim’s prior statements at the bench
trial, and the trial court found the appellant guilty of all charges. Id.
On appeal, the Crossley Court held the Commonwealth’s notice of its
intent to present this Tender Years testimony was insufficient under the Rule.
See Crossley, 711 A.2d at 1028-29. Thus, it vacated the judgment of
sentence and remanded for a new trial. Id. at 1029. The Court explained
that Section 5985.1(b) requires more than simply providing the adverse party
with the proposed hearsay statements during ordinary discovery; rather, it
mandates “notice of an intention to offer the hearsay statement at trial[,]”
that is, “an intention to use a specific document in a particular manner.”
Crossley, 711 A.2d at 1028. As the panel explained, “the notice provisions
are strict and must be strictly observed.” Id. Furthermore, the Crossley
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Court determined that “a prejudice analysis, which would require the
defendant to establish what he would have done differently had he been given
notice, [was] inappropriate.” Id. at 1028 n.2.
Appellant insists “[t]he facts in Crossley are directly on point with the
instant case where the Commonwealth provided ‘a lot of stuff’ but not until 5
days before trial did it identify what specific parts of the ‘stuff’ the defense
needed to be prepared to answer.” Appellant’s Brief at 21. Although she
acknowledges the Tender Years Rule does not require the notice to be in
writing,23 she argues it must be “sufficient enough to permit the defense to
asses[s] and effectively defend or accept it.” Id. at 23.
Here, Judge Mark addressed Appellant’s claim as follows:
In this case, [Appellant] alleges that she did not receive notice of the Commonwealth’s intent to introduce Tender Years testimony until the eve of trial and that, as a consequence, her attorney did not have sufficient time to prepare to meet the statement. While it is true that formal written notice was not given until a week before trial and received by counsel a day later, the record indicates that use of Tender Years testimony had been discussed on prior occasions and that the Commonwealth had given oral notice of its intent during a pretrial conference two months before the first day of trial and three months before the second and last day of trial. In addition, the statements of persons who would be called to give the Tender Years testimony had been given to defense counsel months earlier. Based on these facts, Judge Hamill denied [Appellant’s] motion to preclude the Tender Years statements based on lack of sufficient notice. Judge Hamill’s decision was fully supported by the facts and the law which, as noted, does not require written notice.
23 See Commonwealth v. Luster, 234 A.3d 836, 838 (Pa. Super. 2020).
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Trial Ct. Op. at 12.
The record supports Judge Mark’s ruling. The parties litigated
Appellant’s motion to exclude the Tender Years statements on the first day of
trial. Attorney Jordan conceded she had received the statements in discovery
before the Commonwealth’s Tender Years notice issued one week before trial.
See N.T., Trial Vol. I, at 12. She also acknowledged she “was aware that
some of the witnesses planned to testify.” Id. However, she insisted: “Those
plans for them to testify never stated in accordance with Tender Years or
anything of that nature.” Id. Attorney Jordan also claimed that the attorney
for the Commonwealth “specifically told me he was not filing Tender Years
Notice” and then attempted to “sandbag the [d]efense.” Id. at 8.
The Commonwealth responded that while it did not provide written
notice until a week before trial, Attorney Jordan “was given oral notice of our
intention to use the Tender Years statement on April 26th of 2017, . . . during
a pre-trial conference[.]” N.T., Trial Vol. I, at 9-10. Furthermore, the
Commonwealth maintained it provided Attorney Jordan with the statements
“months ago and told [her] that these witnesses would be called to . . . testify
in accordance with their statements.” Id. at 11. In support of its argument,
the Commonwealth presented the testimony of Assistant District Attorney
Patrick Robinson (ADA Robinson). See id. at 15. ADA Robinson admitted he
told Attorney Jordan the Commonwealth would not be using Tender Years
testimony at the preliminary hearing. Id. at 16. However, he later
provided Attorney Jordan with the names and statements of the witnesses at
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issue, and noted their “only involvement” in the case was that they had “taken
statements from the children.” Id. at 17. Although he acknowledged he never
used the words “Tender Years,” ADA Robinson testified there was
“conversation” at the April 2017 pretrial hearing regarding “matters that
probably would need to be filed, but [he] was unsure of how to proceed
because” the trial court was going to be the fact finder. See id. at 25-26.
But see Commonwealth’s Exhibit 2, Letter from ADA Robinson to Attorney
Jordan, 5/12/17 (stating the Commonwealth will call Bisceglie and the victims
as witnesses at trial, and “[d]epending on how the [t]rial develops, [it] may
call” the CYS caseworker and N.S.’s father).
Although we recognize the Commonwealth’s oral notice could have been
more explicit, we conclude Judge Mark did not err in finding it satisfies the
spirit of the Tender Years Rule. See Luster, 234 A.3d at 838. Unlike in
Crossley, Attorney Jordan had the relevant statements in her possession
months before trial, and N.S.’s Tender Years statements were these witnesses’
only involvement in the case. See Crossley, 711 A.2d at 1026 (defendant
received statements only four days before trial). Furthermore, there was
discussion about the use of these statements as Tender Years evidence at the
pretrial conference.24 Thus, we conclude no relief is warranted.
24 We note that in Luster, this Court interpreted the Tender Years notice requirement strictly. In that case, a week before trial, the Commonwealth provided “oral notice of its intention to present” a videotape of the victim’s forensic interview pursuant to the Tender Years Rule. Luster, 234 A.3d at (Footnote Continued Next Page)
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In her third claim, Appellant challenges the weight of the evidence
supporting her convictions.25 Specifically, she maintains the trial court
inadequately weighed the testimony describing her distinct markings on her
abdominal area — which she claims the victims should have remembered —
as well as the testimony of I.L., who contradicted N.S.’s testimony and “had
no reason to be untruthful[.]” Appellant’s Brief at 29-30.
Our review of a weight claim is well-established:
“The weight of the evidence is exclusively for the finder of fact, who is free to believe all, none or some of the evidence and to determine the credibility of the witnesses.” Resolving contradictory testimony and questions of credibility are matters for the finder of fact. It is well-settled that we cannot substitute our judgment for that of the trier of fact.
Moreover, “Appellate review of a weight claim is a review of the exercise of discretion, not the underlying question of whether the verdict is against the weight of the evidence.” “Because the trial judge has had the opportunity to hear and see the evidence presented, an appellate court will give the gravest consideration to the findings and reasons advanced by the trial judge when reviewing a trial court's determination that the verdict is [or is not] against the weight of the evidence.” “One of the least ____________________________________________
837. The panel concluded that “one week’s notice did not provide [the defendant] a ‘fair opportunity to prepare to meet the statement.’” Id. at 839. The panel noted that as a result of the late disclosure, “it was necessary to redact irrelevant information from the video in the midst of trial with the jury already impaneled.” Id. Here, the Commonwealth’s attorneys indicated that there was discussion regarding its intent to introduce the Tender Years statements at a pretrial conference conducted two months before trial. See N.T., Trial Vol. I, at 9-10, 25-26. We conclude this satisfies the notice requirements of the Rule.
25Appellant properly preserved her weight claim in her timely filed post- sentence motion. See Pa.R.Crim.P. 607(A)(3).
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assailable reasons for granting or denying a new trial is the lower court's conviction that the verdict was or was not against the weight of the evidence and that a new trial should be granted in the interest of justice.”
Furthermore, “in order for a defendant to prevail on a challenge to the weight of the evidence, the evidence must be so tenuous, vague and uncertain that the verdict shocks the conscience of the court.”
Commonwealth v. Miller, 172 A.3d 632, 642–43 (Pa. Super. 2017)
(citations omitted).
In her weight challenge, Appellant focuses on her medical records and
testimony concerning the appearance of her abdominal area during the
relevant period, and I.L.’s testimony, which directly contradicted N.S.’s claim
that she was also sexually abused. See Appellant’s Brief at 30. Our review
is somewhat hampered because President Judge Hammill, who sat as fact
finder during Appellant’s non-jury trial, retired before this appeal was
perfected and did not issue an opinion. Nevertheless, Judge Mark, recognizing
his limited role, reviewed the transcript and found no “abuse of discretion,
shock, or injustice” in the verdict. Trial Ct. Op. at 16. Upon our review, we
agree. The Commonwealth’s case rested almost exclusively on credibility
determinations. While Appellant presented testimony which tended to poke
holes in the victims’ accounts, none of the evidence presented undermined
the court’s verdict to the degree that it would shock one’s conscience. See
Miller, 172 A.3d at 643. The trial court, sitting as fact finder, was free to
believe the testimony of A.S. and N.S. See Miller, 172 A.3d at 642. Thus,
Appellant’s challenge to the weight of the evidence fails.
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In her final issue, Appellant contends trial counsel, Attorney Jordan,
rendered ineffective assistance in several respects. See Appellant’s Brief at
32. She recognizes, however, that these ineffectiveness claims cannot be
addressed until collateral review. Id. at 33. We agree.
In the seminal decision, Commonwealth v. Grant, 813 A.2d 726 (Pa.
2002), the Pennsylvania Supreme Court held that “as a general rule, a
petitioner should wait to raise claims of ineffective assistance of trial counsel
until collateral review.” Id. at 738. Eleven years later, in Commonwealth
v. Holmes, 79 A.3d 562 (Pa. 2013), the Supreme Court reaffirmed its holding
in Grant, but also delineated two narrow exceptions to the general rule. Id.
at 576-78. A trial court may consider ineffectiveness claims on post-verdict
review: (1) in “an extraordinary case where the trial court, in the exercise of
its discretion, determines that a claim (or claims) of ineffectiveness is both
meritorious and apparent from the record so that immediate consideration
and relief is warranted[;]” or (2) when the defendant raises “multiple, and
indeed comprehensive, ineffectiveness claims[,]” which the court, “in its
discretion and for good cause shown,” determines post-verdict review is
warranted, and the defendant waives his right to PCRA review. Id. at 577,
578 (footnote omitted).
Appellant does not claim that either exception applies here.
Accordingly, no relief is due.
Because we conclude none of Appellant’s issues warrant relief, we affirm
the judgment of sentence.
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 9/27/2021
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