J-A02020-16

                                  2016 PA Super 171



COMMONWEALTH OF PENNSYLVANIA                           IN THE SUPERIOR COURT OF
                                                             PENNSYLVANIA
                            Appellee

                       v.

JALENE R. MCCLURE

                            Appellant                         No. 147 MDA 2015


        Appeal from the Judgment of Sentence entered October 31, 2014
                 In the Court of Common Pleas of Centre County
                Criminal Division at No: CP-14-CR-0001778-2012


BEFORE: PANELLA, STABILE, and FITZGERALD,* JJ.

OPINION BY STABILE, J.:                                      FILED AUGUST 08, 2016

        Appellant, Jalene R. McClure, appeals from the judgment of sentence

entered on October 31, 2014 following her convictions of aggravated assault,

simple assault, two counts of endangering the welfare of a child, and

recklessly endangering another person.1                Appellant also has filed an

application for relief pursuant to Pa.R.A.P. 123 in response to which the

Commonwealth filed a motion to strike.              We deferred disposition of both

motions. After considered review and for the reasons that follow, we vacate




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*
    Former Justice specially assigned to the Superior Court.
1
   18 Pa.C.S.A.        §§   2702(a)(1),        2701(a)(1),    4304(a)(1)   and   2705,
respectively.
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Appellant’s judgment of sentence and remand for a new trial. In addition,

we deny both parties’ motions as moot.

      The record reflects that Appellant ran a daycare business out of her

home as of August 18, 2010. When the mother of five-month old P.B., one

of the children entrusted to Appellant’s care, picked up her daughter from

Appellant’s home on August 18, Appellant told the child’s mother that P.B.

was sick and had vomited. While driving home, the mother noticed that P.B.

was losing consciousness and took her to the hospital. It was determined

that P.B. had sustained head injuries, including a fractured skull and retinal

hemorrhaging.

      When first interviewed by Detective Dale Moore and a CYS employee

on the evening of August 18, 2010, Appellant insisted nothing happened to

P.B. at the daycare facility on August 18.    On August 23, 2010, during a

subsequent interview with Detective Moore and the CYS employee, Appellant

gave a verbal statement as well as a written statement, indicating that she

had tripped while carrying P.B. and fell, hitting P.B.’s head on a car seat. At

trial, an expert testified P.B.’s injuries were consistent with a child who was

shaken.   The expert opined that the injuries were sustained at Appellant’s

daycare facility on August 18.

      At the conclusion of the trial, a jury found Appellant guilty of the

crimes listed above.   The trial judge sentenced Appellant to an aggregate

sentence of ten to twenty years in prison.      Appellant filed post-sentence

motions, which the trial court denied.         This timely appeal followed.
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Appellant complied with the trial court’s directive to file a concise statement

of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b) and

subsequently requested the opportunity to file a supplemental Rule 1925(b)

statement, a request the trial court granted.2

       In this appeal, Appellant presents nine issues. For ease of discussion,

we have reordered the issues as follows:

       1. To admit evidence on motive, there must be a logical
          connection between the crime and the proffered evidence.
          Was evidence of a contentious divorce two years after the
          alleged crime relevant, unfairly prejudicial and violate the
          spousal privilege rule?

       2. Did the trial court commit error when it: (a) allowed Detective
          Dale Moore to admit the redacted written statement of Ms.
          McClure that changed an explanation of an accident into a
          confession or statement against interest; (b) allowed
          Detective Dale Moore to give improper evidence of both his
          and a CYS worker’s opinion regarding the veracity of
          [Appellant’s] statement; and (c) allowed Detective Dale
          Moore to reenact [Appellant’s] demonstration of a fall in a
          way that was not demonstrated by [Appellant]?

       3. It is error to admit evidence offered solely to engender
          sympathy for a victim and not relevant to a central issue at
          trial. Did the trial court abuse its discretion when it allowed
          testimony of [P.B.’s] mother regarding an unrelated diagnosis
          of esotropia, crossing of the eyes, which occurred two years
          after the alleged incident; and allowed the mother to testify
          regarding trips to Easter Seals and the possibility of re-injury?
____________________________________________


2
  The Commonwealth filed a motion to strike the order granting Appellant’s
request to file a supplemental Rule 1925(b) statement. The trial court
denied the Commonwealth’s motion.            The Commonwealth appealed,
asserting it was appealing a collateral order pursuant to Pa.R.A.P. 313. This
Court disagreed and, on June 26, 2015, quashed the appeal.               See
Commonwealth v. McClure, 852 MDA 2015).


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     4. An accused has a fundamental right to present relevant
        evidence to rebut motive and bias. Did the court abuse its
        discretion when it precluded defense witnesses from testifying
        how [Appellant] ran her daycare; managed the stress and
        number of children; and that the daycare was not chaotic,
        unruly or stress–provoking; when the Commonwealth’s
        theory was that [Appellant] temporarily lost control and
        violently assaulted [P.B.] because of that stress?

     5. An accused has a constitutional right to admit evidence that
        logically tends to establish a material fact in the case. Did the
        trial court commit error when it precluded the admission of
        Detective Dale Moore’s October 2010 statement that there
        was insufficient evidence to prosecute the case at that time
        and no charges were being filed, when the detective testified
        that delay in charging was due to other events?

     6. Agreements with defense counsel not to question an accused
        without her lawyer promotes the right to a lawyer and the
        prompt and fair admission of the criminal justice system. Did
        the trial court commit error when it denied [Appellant’s]
        motion to suppress her statements after exercising her right
        to an attorney and in violation of an agreement that she
        would not be interviewed without her attorney present?

     7. A sentence must be reasonable and not excessive, consistent
        with protection of the public, gravity of the offense and take
        into account the rehabilitative needs of the defendant. Did
        the trial court abuse its discretion when it sentenced
        [Appellant] to an aggregate sentence of ten to twenty years,
        which exceeded the aggravated range of five and one-half
        years, failing to take into consideration [Appellant’s] lack of
        prior criminal record; character; family support; rehabilitation
        potential; and/or recuse itself from sentencing?

     8. A judge must recuse himself when his impartiality or bias can
        reasonably be questioned. Do hundreds of text messages
        between the court and the district attorney’s office; ex parte
        communications; photographs posted on social media with
        members of the district attorney’s office; and patently false
        statements made at the motion to recuse hearing raise
        reasonable questions regarding the court’s bias and
        impartiality?

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      9. Should the appellate court remand this case for a hearing
         based upon court reporter Maggie Miller’s affidavit regarding
         the district attorney’s ex parte texts to the trial court in a
         previous criminal case?

Appellant’s Brief at 5-7 (capitalization omitted).

      Appellant’s first five issues present evidentiary challenges.    As our

Supreme Court recently reiterated:

      The admissibility of evidence is a matter for the discretion of the
      trial court and a ruling thereon will be reversed on appeal only
      upon a showing that the trial court committed an abuse of
      discretion. Commonwealth v. Sherwood, 603 Pa. 92, 982
      A.2d 483, 495 (2009). “An abuse of discretion may not be found
      merely because an appellate court might have reached a
      different conclusion, but requires a result of manifest
      unreasonableness, or partiality, prejudice, bias, or ill-will, or
      such lack of support so as to be clearly erroneous.” Id. (quoting
      Commonwealth v. Dillon, 592 Pa. 351, 925 A.2d 131, 136
      (2007) (citation omitted)).

Commonwealth v. Poplawski, 130 A.3d 697, 716 (Pa. 2015).

      In her first issue, Appellant contends the trial court abused its

discretion by admitting evidence relating to Appellant’s divorce in August of

2012, two years after the events giving rise to this case. Appellant contends

the testimony was irrelevant, unfairly prejudicial and violated the spousal

privilege rule.    We agree with Appellant that the          Commonwealth’s

references—during its direct examination of Appellant’s former husband—to

such matters as (1) an argument between Appellant and her husband during

which he allegedly suggested he should ask the police to investigate how she

ran the daycare, (2) Appellant and her husband separating in 2012, (3)

police presence at the marital home as Appellant was removing belongings

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in August 2012, (4) references to an “emotional meltdown” at one or two

unspecified times, and (5) “out of control spending” on Appellant’s part,

either implicate the spousal privilege or were irrelevant to the events of

August 18, 2010 and, consequently, were unfairly prejudicial to Appellant.

See Notes of Testimony, 9/9/14, at 99-113. However, our inquiry does not

end there. As our Supreme Court explained in Poplawski:

     In the event of an erroneous admission of evidence, a verdict
     can still be sustained if the error was harmless.             See
     Commonwealth v. Wright, 599 Pa. 270, 961 A.2d 119, 144
     (2008). An error is harmless if it could not have contributed to
     the verdict, or stated conversely, an error cannot be harmless if
     there is a reasonable possibility the error might have contributed
     to the conviction. Id.

        ....

     The Commonwealth has the burden of proving harmless error
     beyond a reasonable doubt. Id. at 143.

Poplawski, 130 A.3d at 716.

     The Commonwealth suggests the “evidence concerning Appellant’s

mental state did not cover any time period other than the time period

relevant to this crime.”    Commonwealth Brief at 23.        Further, “[t]he

Commonwealth sought to prove Appellant suffered under extreme stress in

2010 which in turn supported a reasonable inference that the stress was a

contributing factor to her violent attack and injuries sustained by [P.B.].”

Id. While the Commonwealth may have been seeking to prove that stress

resulted in actions by Appellant on August 18, 2010, the questions posed to

Appellant’s former husband were not even remotely restricted to that time

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J-A02020-16


and several specifically referenced August of 2012.      Because there is a

“reasonable possibility” that the error in permitting the testimony “might

have contributed to the conviction,” see Poplawski, 130 A.3d at 716, we do

not find the error harmless.       As this Court has recognized, “[w]hen

improperly admitted testimony may have affected a verdict, the only correct

remedy is the grant of a new trial.” Collins v. Cooper, 746 A.2d 615, 620

(Pa. Super. 2000) (citation omitted; emphasis in original).

      Although our disposition of Appellant’s first issue leads us to vacate

her judgment of sentence and remand for a new trial, we shall address the

remaining evidentiary issues as they may arise again on remand.

      In her three-pronged second issue, Appellant argues the trial court

erred by refusing admission of the redacted portion of the written statement

Appellant gave on August 23, 2010. Appellant also contends the trial court

improperly permitted Detective Moore to testify as to his opinion—and that

of a CYS employee—of the truthfulness of that statement, and erred in the

way it allowed Detective Moore to demonstrate Appellant’s fall.     We shall

address each alleged error separately.

      As Appellant explains, her statement described the mechanics of her

fall and what happened to P.B. during that fall. She also indicated that P.B.

calmed down after the fall and then became fussy—which she attributed to

teething—and then vomited later in the day.         The redacted statement

concluded with the comment, “The throwing up happened a few hours after I

fell[.]” The following information was redacted from the original statement:
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J-A02020-16


     [The throwing up happened a few hours after I fell] so it never
     occurred to me or thought for even a second that [P.B.] was
     hurt. I would have acted immediately. I always notify my
     parents when their children get sick while in my care. I have
     had accidents happen before but there was never any serious
     harm done to a child. I would have acted immediately had I
     thought that I had harmed [P.B.] in anyway what so ever.

Commonwealth Trial Exhibit 49 (redacted portion).

     Appellant argues that the redaction turned the content of her

statement “from an explanation of an accident into an admission and/or

confession and [Appellant] not reporting that injury.”   Appellant’s Brief at

38. Appellant relies on Pa.R.E. 106 in support of her argument. Rule 106

(Remainder of or Related Writings or Recorded Statements) provides:

     If a party introduces all or part of a writing or recorded
     statement, an adverse party may require the introduction, at
     that time, of any other part—or any other writing or recorded
     statement—that in fairness ought to be considered at the same
     time.

Pa.R.E. 106. As the comment to the rule explains:

     The purpose of Pa.R.E. 106 is to give the adverse party an
     opportunity to correct a misleading impression that may be
     created by the use of a part of a writing or recorded statement
     that may be taken out of context. This rule gives the adverse
     party the opportunity to correct the misleading impression at the
     time that the evidence is introduced.        The trial court has
     discretion to decide whether other parts, or other writings or
     recorded statements, ought in fairness to be considered
     contemporaneously with the proffered part.

Id. (Comment).

     We agree with Appellant that she should have been able to correct any

misleading impression by presenting her entire statement to the jury. The



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trial court’s refusal to do so constitutes error of law that we cannot consider

harmless. See Poplawski, supra.

      The next subpart of Appellant’s second issue alleges error in permitting

Detective Moore to express opinions about Appellant’s credibility.      As our

Supreme Court has stated:

      The determination of the credibility of a witness is within the
      exclusive province of the jury.

            ....

      “It is an encroachment upon the province of the jury to permit
      admission of expert testimony on the issue of the credibility of a
      witness.” [Commonwealth v. Seese, 517 A.2d 920, 922 (Pa.
      1986)]. “Whether the expert’s opinion is offered to attack or to
      enhance, it assumes the same impact - an ‘unwarranted
      appearance of authority in the subject of credibility which is
      within the facility of the ordinary juror to assess.’”
      Commonwealth v. Spence, 534 Pa. 233, 245, 627 A.2d 1176,
      1182 (1993) (citation omitted).

Commonwealth v. Crawford, 718 A.2d 768, 772 (Pa. 1998).              Although

Crawford and Seese involved experts inappropriately offering opinions on

credibility, the same principle can be applied to a police officer in whose

testimony a jury could find an “unwarranted appearance of authority in the

subject of credibility,” something ordinary jurors are able to assess. As the

Commonwealth acknowledged, the fact Detective Moore charged Appellant

with the crimes suggests that he did not believe Appellant.          Notes of

Testimony, 9/8/14, at 288. However, allowing him to express opinions that




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neither he nor the CYS employee believed Appellant 3 is not only irrelevant

but also prejudicial.      Allowing opinions on Appellant’s credibility, despite

charging the jury that determinations of credibility are for the jury,

constitutes error that we cannot consider harmless.

        The third component of Appellant’s second issue is a claim of trial

court error for permitting Detective Moore to demonstrate Appellant’s fall in

a way, she contends, did not accurately mirror Appellant’s demonstration to

Detective Moore. In Commonwealth v. Serge, 837 A.2d 1255 (Pa. Super.

2003), this Court explained:

        Demonstrative evidence is that which is tendered for the purpose
        of rendering other evidence more comprehensible to the trier of
        fact. As in the admission of any other evidence, a trial court
        may admit demonstrative evidence whose relevance outweighs
        any potential prejudicial effect.        Demonstrative evidence,
        however, must also be properly authenticated by evidence
        sufficient to show that it is a fair and accurate representation of
        what it is purported to depict. Pa.R.E. 901(a). Demonstrative
        evidence may be authenticated by testimony from a witness who
        has knowledge of what the evidence is proclaimed to be. Pa.R.E.
        901(b)(1).

Id. at 1261 (internal quotations and citations omitted).

        The trial court rejected Appellant’s assertion, noting, “[g]enerally,

demonstrative evidence is admissible if its probative value outweighs the

likelihood of improperly influencing the jury. Conditions must be sufficiently

close to those involved in the accident to make the probative value of the


____________________________________________


3
    Notes of Testimony, 9/8/14, at 286.


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J-A02020-16


demonstration outweigh its prejudicial effect.” Trial Court Opinion, 4/30/15,

at 13 (quoting Pascale v. Hechinger Co. of Pa., 627 A.2d 750 (1993)). As

the trial court explained:

      Detective Moore demonstrated what [Appellant] explained to
      him occurred when she tripped and stumbled and [P.B.] hit her
      head on the infant carrier. The conditions of the demonstration
      were sufficiently similar to the incident being demonstrated. . . .
      The jury was instructed that when [Appellant] showed Detective
      Moore how she fell, she was not holding a doll. Therefore this
      [c]ourt determined the demonstrative evidence had significant
      probative value and the conditions were similar enough to
      outweigh any prejudicial effect.

Trial Court Opinion, 4/30/15, at 13-14. We agree. Further, to the extent

the demonstration did not mirror Appellant’s description of the fall,

Appellant’s counsel was able to challenge the demonstration on cross-

examination. We find no abuse of discretion in permitting Detective Moore

to demonstrate the fall.

      In her third issue, Appellant contends the trial court abused its

discretion by permitting P.B.’s mother to testify that P.B. was diagnosed with

esotropia, i.e., crossing of the eyes, two years after the incident and to

testify about trips to Easter Seals and the possibility of re-injury. Appellant

contends the testimony was irrelevant and was intended to engender

sympathy from the jury.

      The trial court rejected Appellant’s argument, explaining:

      The Commonwealth did not frame the question in a manner to
      elicit testimony regarding esotropia. [Appellant’s] counsel had
      asked P.B.’s mother on cross-examination if her daughter is
      currently “doing well.” [Notes of Testimony,] 9/8/14 at 163. On
      re-direct, the Commonwealth asked “what are her ongoing
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      issues [] as a result of her skull fracture and hematomas.” Id.
      at 194.

Trial Court Opinion, 4/30/15, at 14. The trial court then provided an excerpt

from subsequent testimony in which P.B.’s mother was asked, “[a]nd in

fairness, they’re not totally sure the eye crossing is from this, they can’t rule

it in or out?” Notes of Testimony, 9/8/14, at 198. The mother responded,

“Correct.” Id.

      While    Appellant’s   counsel   opened   the   door   that    enabled   the

Commonwealth to elicit the testimony, the jury was free to discount it in

light of the absence of expert testimony to support it. We do not find any

abuse of discretion in permitting the testimony.

      As for visiting Easter Seals and the possibility of re-injury, again, the

defense opened the door on P.B.’s status by asking the question on cross-

examination.     Further, as the trial court notes, “the nature and extent of

[P.B.’s] injuries are relevant as one of the elements of aggravated assault is

serious bodily injury. The Commonwealth bears the burden of proving the

serious bodily injury element beyond a reasonable doubt.            Therefore, the

nature of the victim’s injuries was undoubtedly relevant and admissible.”

Trial Court Opinion, 4/30/15, at 15.        We agree.    We find no abuse of

discretion in permitting the testimony under the circumstances.

      In her fourth issue, Appellant asserts the trial court erred by

precluding testimony about Appellant’s running of her daycare because the

Commonwealth’s theory was that Appellant lost control and violently

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J-A02020-16


assaulted P.B. due to the stress associated with running the business.

However, Appellant was not precluded from presenting such testimony, as is

evidenced by the trial court’s pre-trial ruling in which it held:

        11. The Commonwealth’s Motion in Limine seeking to preclude
        [Appellant] from alleging that she has run a “successful daycare
        for 11 years” is Granted in part, and Denied in part.
        [Appellant] may not characterize the daycare using adjectives
        such as “successful” but may provide facts regarding how long
        she has operated a day care business and facts concerning
        whether she has had any previous incidents with injuries.

Trial    Court   Order,   9/5/14,   at   4   (emphasis   in   original).   As   the

Commonwealth correctly observes, Appellant did in fact present testimony

concerning the operation of her daycare through the testimony of women

whose children were cared for by Appellant. See, e.g., Notes of Testimony,

9/10/14, at 256-271 (Testimony of Jennifer Lindeman) and at 275-282

(Testimony of Christina Welch).          Appellant’s fourth issue fails for lack of

merit.

        In her fifth issue, Appellant argues the trial court erred by precluding

admission of a statement from October 2010 when Detective Moore

purportedly commented to an insurance adjuster that the evidence was

insufficient to prosecute Appellant. We find this issue devoid of merit. The

testimony was not that Detective Moore stated prosecution was foreclosed.

Rather, the testimony was that, in October of 2010, Detective Moore left a

voicemail message for the adjuster indicating that, “at this time,” the

evidence was not sufficient. Notes of Testimony, 9/9/14, at 240. Further,

as the Commonwealth notes, it is up to the District Attorney, not the
                               - 13 -
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investigating detective, to decide whether the evidence is believed to be

sufficient to support a conviction. Id. at 44.

      In her sixth issue, Appellant complains the trial court erred by denying

the motion to suppress her August 23, 2010 statement in light of the

violation of an agreement that she would not be interviewed without an

attorney. We reject Appellant’s assertion. Appellant initially told Detective

Moore she wanted to discuss some matters with her attorney before

speaking with him. However, she subsequently contacted Detective Moore

and said she was tired of not hearing back from her attorney and would

meet with him.     As this Court has recognized, “[A]n accused who has

invoked his rights may change his mind and choose to waive his rights, so

long as it is he who initiates further communication, and so long as his

waiver is voluntary and intelligent.” Commonwealth v. Brown, 476 A.2d

965 (Pa. Super. 1984). Appellant’s sixth issue fails.

      In her seventh issue, Appellant argues that her sentence is excessive.

Because we have vacated her judgment of sentence, the issue is moot.

However, we note, as the Commonwealth correctly indicates, because

Appellant presented a challenge to the discretionary aspects of sentence, the

challenge was waived because Appellant failed to include in her brief a Rule

2119(f) concise statement of the reasons relied upon for allowance of

appeal.

      In her eighth and ninth issues, Appellant contends the trial court erred

by denying her motion for recusal and seeks a remand for a hearing relating
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to alleged ex parte communications between the District Attorney and the

trial court in a previous criminal case. In light of the fact we have vacated

Appellant’s judgment of sentence and are remanding for a new trial,

together with the fact the trial judge has since retired from the bench, we

find Appellant’s final two issues also are moot.

      Finally, with regard to the outstanding applications for relief filed

during the pendency of this appeal, which include Appellant’s request for an

evidentiary hearing in relation to Appellant’s recusal request and the

Commonwealth’s request to strike an exhibit from Appellant’s application for

relief, we find that both applications are rendered moot by our rulings on the

issues discussed above. Therefore, we deny both applications as moot.

      Judgment    of   sentence   vacated.     Case   remanded    for   further

proceedings consistent with this Opinion. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/8/2016




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