Com. v. Wilcox, C.

Superior Court of Pennsylvania

Com. v. Wilcox, C.

DecidedJuly 18, 2017

DocketCom. v. Wilcox, C. No. 1032 MDA 2016

StatusUnpublished

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Bluebook

Com. v. Wilcox, C., (Pa. Ct. App. 2017).

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Opinion

J-S30010-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

CHAD MARSHALL WILCOX,

Appellant No. 1032 MDA 2016

Appeal from the Judgment of Sentence January 22, 2016 In the Court of Common Pleas of Lycoming County Criminal Division at No(s): CP-41-CR-0001056-2012

BEFORE: SHOGAN, RANSOM, and MUSMANNO, JJ.

MEMORANDUM BY SHOGAN, J.: FILED JULY 18, 2017

Appellant, Chad Marshall Wilcox, appeals from the judgment of

sentence entered on January 22, 2016, in the Lycoming County Court of

Common Pleas. We affirm.

The record reveals that on March 16, 2012, Appellant was charged

with numerous crimes in connection with the sexual abuse of his six-year-old

step-daughter, I.F. Specifically, Appellant was charged as follows:

[Appellant] was charged with Statutory Sexual Assault1, Aggravated Indecent Assault2, Involuntary Deviate Sexual Intercourse with a Child3, Indecent Assault (under 13 years of age)4; Corruption of Minors (sexual offenses)5; Rape of a Child6; Indecent Exposure7; and Unlawful Contact with a Minor8. [Appellant] was tried by jury on January 21, 2016, with the jury returning a verdict of guilty on all counts. 1 18 Pa.C.S. § 3122.1 2 18 Pa.C.S. § 3125 J-S30010-17

3 18 Pa.C.S. § 3123(B) 4 18 Pa.C.S. § 3126(A)(7) 5 18 Pa.C.S. § 6301(a)(1)(ii) 6 18 Pa.C.S. § 3121(c) 7 18 Pa.C.S. § 3127(A) 8 18 Pa.C.S. § 6318(a)(1)

The Court sentenced [Appellant] to an aggregate sentence of 21 to 70 years, to be served consecutively to a 40 to 80 year sentence for murder out of Montgomery County, Pennsylvania. For Count 6 Rape of Child, the Court imposed a minimum sentence of 10 years and a maximum sentence of 40 years. For Count 8 Unlawful Contact with a Minor, the Court imposed a minimum sentence of 10 years, the maximum of 20 years. The sentences in both those counts were ordered to run consecutive to one another. For Count 1 Statutory Sexual Assault, the Court sentenced [Appellant] to a minimum of one (1), maximum of 10 years in a state correctional institution, also to run consecutive to sentences in Count 6 and Count 8.

Pa.R.A.P. 1925(a) Opinion, 8/22/16, at 1. Post-sentence motions were filed

and denied. This timely appeal followed. Both Appellant and the trial court

have complied with Pa.R.A.P. 1925.

On appeal, Appellant raises seven issues for this Court’s consideration:

I. The lower court erred in determining that there was sufficient evidence to support a conviction of all charges following the January 21, 2016 trial, as the Commonwealth did not establish the factual predicate necessary for conviction.

II. The lower court erred by finding that the alleged victim was unavailable for purposes of the Tender Years doctrine and

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admitting hearsay evidence from Lou Ann [Ziegler],[1] Melis[s]a [Dangle],[2] and Sherry Moroz.

III. The lower court erred by ruling that the alleged victim was unavailable to testify, thereby violating the Appellant’s right to confrontation as guaranteed by the Pennsylvania and United States Constitutions.

IV. The lower court erred by failing to discharge the entire jury panel when, during selection, Juror #1 stated in open court that the District Attorney was a good man who hires good people. The Court ordered Juror #1 be stricken for cause, but refused to discharge the entire panel.

V. The lower court erred by denying the Appellant’s motion to dismiss based upon Sgt. Taylor’s unlawful seizure of the Appellant’s discovery, notes, and documents containing trial strategy developed by the Appellant and his trial counsel.

VI. The lower court erred by denying the Appellant’s request for continuance due to the fact that his discovery and notes had been obtained by the Commonwealth.

VII. The lower court erred by permitting Mr. Mowery’s testimony during trial concerning statements made to him by the alleged victim.

Appellant’s Brief at 7.

In Appellant’s first issue, he avers that the evidence was insufficient to

support a conviction of all charges.3 Appellant was convicted of eight

____________________________________________

1 Lou Ann Ziegler is also referred to as Luann Ziegler and Luanne Ziegler. N.T., 1/21/16, at 49, 50. We will utilize Lou Ann Ziegler for consistency. 2 Melissa Dangle is also referred to as Melissa Wheeland. N.T., 11/12/13, at 90; N.T., 1/21/16, at 59. We will utilize Melissa Dangle for consistency. 3 Appellant presented this issue in his Pa.R.A.P. 1925(b) statement as follows: “1. [Appellant] submits the evidence was insufficient to prove that (Footnote Continued Next Page)

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separate crimes: statutory sexual assault; aggravated indecent assault;

involuntary deviate sexual intercourse with a child; indecent assault where

the victim is under thirteen years of age; corruption of minors of a sexual

nature; rape of a child; indecent exposure; and unlawful contact with a

minor. We note that:

[i]n order to preserve a challenge to the sufficiency of the evidence on appeal, an appellant’s Rule 1925(b) statement must state with specificity the element or elements upon which the appellant alleges that the evidence was insufficient. Commonwealth v. Gibbs, 981 A.2d 274, 281 (Pa. Super. 2009), appeal denied, 607 Pa. 690, 3 A.3d 670 (2010). “Such specificity is of particular importance in cases where, as here, the appellant was convicted of multiple crimes each of which contains numerous elements that the Commonwealth must prove beyond a reasonable doubt.” Id. at 281 (citation omitted). Here, as is evident, Appellant not only failed to specify which elements he was challenging in his Rule 1925(b) statement, he also failed to specify which conviction he was challenging. Thus, we find Appellant’s sufficiency claim waived on this basis. See Gibbs, supra.

Commonwealth v. Garland, 63 A.3d 339, 344 (Pa. Super. 2013).

Appellant’s bald assertion fails to detail which crimes, let alone which

elements of the crimes were not proven beyond a reasonable doubt.

Pursuant to Garland, we conclude Appellant’s failure in this regard is fatal to

his challenge to the sufficiency of the evidence, and we conclude that he has

waived this issue on appeal. Id.

_______________________ (Footnote Continued)

[he] actually committed any sexual abuse of the alleged victim.” Pa.R.A.P. 1925(b) Statement, 7/7/16, at ¶1.

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In his second and third issues, Appellant avers that the trial court

erred by finding that I.F. was unavailable to testify pursuant to the tender

years exception to the prohibition on hearsay, and violated Appellant’s right

to confrontation as guaranteed by the Pennsylvania and United States

Constitutions. We disagree.

It is well settled that “[t]he admission of evidence is solely within the

discretion of the trial court, and a trial court’s evidentiary rulings will be

reversed on appeal only upon an abuse of that discretion.”

Commonwealth v. Woodard, 129 A.3d 480, 494 (Pa. 2015) (citation

omitted). “An abuse of discretion will not be found based on a mere error of

judgment, but rather occurs where the court has reached a conclusion that

overrides or misapplies the law, or where the judgment exercised is

manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will.”

Id. (citation omitted).

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