J-A19006-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                        Appellee               :
                                               :
                v.                             :
                                               :
    SAMIRA H. RANDOLPH-ALI                     :
                                               :
                        Appellant              :       No. 183 MDA 2018

        Appeal from the Judgment of Sentence Entered October 12, 2017
                In the Court of Common Pleas of Dauphin County
             Criminal Division at No(s): CP-22-CR-0003578-2016


BEFORE: GANTMAN, P.J., NICHOLS, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY GANTMAN, P.J.:                          FILED OCTOBER 09, 2018

        Appellant, Samira H. Randolph-Ali, appeals from the judgment of

sentence entered in the Dauphin County Court of Common Pleas, following

her jury trial conviction for obstruction in the investigation of a child abuse

case.1 We affirm.

        In its opinion, the trial court fully and correctly sets forth the relevant

facts and procedural history of this case.         Therefore, we have no need to

restate them.        Procedurally, we add that Appellant timely filed a notice of

appeal on January 23, 2018.          The court ordered Appellant on January 24,

2018, to file a concise statement of errors complained of on appeal per

Pa.R.A.P. 1925(b); Appellant timely complied on February 13, 2018.

        Appellant raises the following issue for our review:
____________________________________________


1   18 Pa.C.S.A. § 4958(b.1).
J-A19006-18


         WAS NOT THE EVIDENCE INSUFFICIENT TO SUPPORT
         [APPELLANT’S] CONVICTION FOR OBSTRUCTION OF A
         CHILD ABUSE INVESTIGATION, 18 PA.C.S. § 4958(B.1)?

(Appellant’s Brief at 4).

      Appellant argues the evidence considered in the trial court’s sufficiency

analysis should have been limited solely to the facts contained in the criminal

information. Appellant alleges that, at trial, the Commonwealth based the

obstruction charge on both (1) actions preceding June 4, 2016, which resulted

in her daughter’s recantation letter, and (2) the telephone conversation that

occurred at the end of June 2016. Appellant, however, maintains the criminal

information contained only facts relating to the events leading to the

recantation letter and not the later telephone conversation.            Appellant

contends the Commonwealth made no request to amend the information to

include the telephone call and, in instructing the jury, the trial court described

the obstruction charge as it appeared in the criminal information only. Based

on evidence relating solely to the facts contained in the criminal information,

Appellant asserts the Commonwealth presented insufficient evidence to show

Appellant induced her daughter to send the recantation letter. Moreover, even

if the additional evidence relating to the telephone call is included, Appellant

submits the trial evidence is still insufficient to uphold the obstruction

conviction. Appellant concludes this Court should reverse her judgment of

sentence and discharge her from further prosecution. We disagree.

      Pennsylvania Rule of Criminal Procedure 560 describes the content of a


                                      -2-
J-A19006-18


criminal information and requires “a plain and concise statement of the

essential elements of the offense substantially the same as or cognate to the

offense alleged in the complaint.” Pa.R.Crim.P. 560(B)(5) (emphasis added).

          [Informations] must be read in a common sense manner
          and are not to be construed in an overly technical sense.
          The purpose of the [information] is to provide the accused
          with sufficient notice to prepare a defense, and to [ensure]
          that [s]he will not be tried twice for the same act.

Commonwealth v. Ohle, 503 Pa. 566, 588, 470 A.2d 61, 73 (1983) (internal

citations and quotation marks omitted).          “A criminal information is not

constitutionally infirm if it notified the defendant of the crime with which [s]he

is charged.” Commonwealth v. Jones, 590 Pa. 202, 237, 912 A.2d 268,

289 (2006). Additionally, Rule 560(B)(5) “does not require that the crime

charged in the Information be identical to that charged in the Complaint, so

long as the charge is [cognate] to the one laid in the Complaint.” 2

Commonwealth v. Donaldson, 488 A.2d 639, 640 (Pa.Super. 1985).

       “Variations between allegations and proof at trial are not fatal unless a

defendant could be misled at trial, prejudicially surprised in efforts to prepare

a defense, precluded from anticipating the prosecution’s proof, or otherwise

impaired with respect to a substantial right.” Commonwealth v. Kelly, 487

Pa. 174, 178, 409 A.2d 21, 23 (1979). Accord Ohle, supra at 589, 470 A.2d



____________________________________________


2 Pennsylvania Rules of Criminal Procedure were amended and Rule 225 was
renumbered as Rule 560 in March 2000. The language quoted remained
substantially the same.

                                           -3-
J-A19006-18


at 73; Commonwealth v. Zullinger, 676 A.2d 687, 689 (Pa.Super. 1996).

      Importantly, “Issues not raised in the [trial] court are waived and cannot

be raised for the first time on appeal.”        Pa.R.A.P. 302(a).   “[I]ssues are

preserved when objections are made timely to the error or offense.”

Commonwealth v. Baumhammers, 599 Pa. 1, 23, 960 A.2d 59, 73 (2008),

cert. denied, 558 U.S. 821, 130 S.Ct. 104, 175 L.Ed.2d 31 (2009).            “The

purpose of contemporaneous objection requirements respecting trial-related

issues is to allow the court to take corrective measures and, thereby, to

conserve limited judicial resources.” Commonwealth v. Sanchez, 614 Pa.

1, 32, 36 A.3d 24, 42 (2011), cert. denied, 568 U.S. 833, 133 S.Ct. 122, 184

L.Ed.2d 58 (2012). “[A] party may not remain silent and afterwards complain

of   matters   which,   if   erroneous,   the   court   would   have   corrected.”

Commonwealth v. Strunk, 953 A.2d 577, 579 (Pa.Super. 2008) (quoting

Commonwealth v. Clair, 458 Pa. 418, 423, 326 A.2d 272, 274 (1974)).

See, e.g., Commonwealth v. Adams, 39 A.3d 310, 319-20 (Pa.Super.

2012), affirmed, 628 Pa. 600, 104 A.3d 511 (2014) (reiterating: “[A]

defendant’s failure to object to allegedly improper testimony at the

appropriate stage…constitutes waiver” and “absence of a contemporaneous

objection below constituted a waiver of appellant’s claim respecting the

prosecutor’s closing argument”).

      Instantly, the record makes clear Appellant did not object at trial either

to the admission of the additional facts she now challenges or to the


                                      -4-
J-A19006-18


prosecutor’s reference to those facts at closing. (See N.T., Trial, 9/11-12/17,

at 13-14, 34-35, 44-46, 73-74, 107-08, 117.) Therefore, Appellant waived

her “limited facts” issue for appellate review. See Pa.R.A.P. 302(a).

      Moreover, Appellant’s claim merits no relief in any event.      The well-

reasoned opinion of the Honorable Deborah E. Curcillo fully discusses and

properly disposes of the question presented.      (See Post Sentence Motion

Order and Memorandum Opinion, filed January 10, 2018, at 5-8) (finding: trial

court can consider all evidence presented at trial in reviewing sufficiency of

evidence; evidence demonstrated Appellant wrongly communicated with

daughter and attempted to impede child abuse investigation; Appellant

admitted contact with daughter during investigation and daughter then wrote

letter recanting abuse; detective testified daughter later re-asserted abuse

allegation once she learned her siblings would not necessarily be placed in

foster care; detective testified Appellant directed daughter and grandmother

to write recantation letter; Appellant admitted telling grandmother that

Appellant was losing her home, kids, job, etc. as a result of abuse allegations;

Appellant’s statements to grandmother indicate attempt to get grandmother

and daughter to work against investigation; Commonwealth presented

sufficient evidence to sustain conviction). Accordingly, to the extent part of

Appellant’s sufficiency claim is properly before us, we affirm on the basis of

the court’s opinion.

      Judgment of sentence affirmed.


                                     -5-
J-A19006-18




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date:10/09/2018




                          -6-
                                                                                     Circulated 09/11/2018 03:08 PM




   COMMONWEAL TH OF PENNSYLVANIA : IN THE COURT OF COMMON PLEAS
                                 : DAUPHIN COUNTY, PENNSYLVANIA

                                                       : 183 MDA 2018
                           v.                          : 3578 CR 2016

· · ·---SA-MI-R-A-RAND9bPH-A-bl-- ---                  : CRIMINALAPPE-Ah-·-- ·----··-

                     TRIAL COURT STATEMENT IN LIEU OF OPINION
                             PURSUANT TO PA.R.A.P. 1925

         AND NOW, this 6th day of March, 2016, having received the Notice of Appeal from our

  order of January 10, 2018, and a Statement of Errors Complained of on Appeal, and having filed

  a Memorandum Opinion on that same date, this Court incorporates by reference our

  Memorandum Opinion, which details the facts in this matter, provides our reasons for

  concluding that Appellant is not entitled to post-sentence relief, and is the basis of our January

  l 0, 2018 final order denying Appellant's Post-Sentence Motion. Therefore, we will submit

  nothing further regarding this matter unless directed by the Superior Court of Pennsylvania.

                                                                          Respectfully submitted:




                                                                        Deborah E. Curcillo, Judge




  Distribution:
  The Superior Court of Pennsylvania!.�-�
  Hon. Deborah E. Curcillo
  James Karl, Esq., Dauphin County Public Defender's Office
                                                                                                                     ·-·. . ...
  Ryan Lysaght, Esq., Dauphin County District Attorney's Office                                                                   ..


                                                                                       ••..._r,.;· •
                                                                                                                     c- ..
                                                                                        -··---�   -�·   ·•.




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COMMONWEAL TH OF PENNSYLVANIA                                    : IN THE COURT OF COMMON PLEAS,
                                                                 : DAUPHIN COUNTY, PENNSYLVANIA

                              v.                                 : NO. 3578 CR 2016

SAMIRA RANDOLPH ALI                                              : CRIMINAL MATTER
                                                                                 - ------··-------·-------·


                POST SENTENCE MOTION ORDER AND MEMORANDUM OPINION

              AND NOW, this 10th day of January, 2018, upon consideration of the Post Sentence

    Motion filed by Samira Randolph Ali, (hereinafter "Defendant") it is HEREBY ORDERED that

    the Motion is DENIED.

                                                FINDINGS OF FACT

             Defendant was charged with, inter alia, obstruction of a child abuse investigation on May

    26, 2016. The criminal information was filed July 27, 2016. She proceeded to a jury trial on

    September 12, 2017, where she was found guilty of obstruction. She was sentenced October 12,

    2017, and a timely post sentence motion was filed. Briefs were ordered and timely filed.

             On May 5, 2016, Scott Schaeffer, a patrolman with Steelton Police, was dispatched for a

runaway juvenile1• (Notes of Testimony, Jury Trial Sept 11-12, 201                   r. p. 18-19). While en route
to the juvenile's home, he learned that she had arrived at Steelton Police Station. Officer

Schaeffer informed her mother, the defendant, that her child was safe at the police station. (N.T.

    19-20). He then returned to the police station to interview the minor. The minor was crying and

very upset. She indicated that her mother beat her and she did not want to go home. (N .T. 20).

Following procedure when child abuse is alleged, Schaeffer called Detective Shaub. (N. T. 21 ).




1
    As the victim was a minor at the time of the incident, we will use the initials "AR" when referring to the victim.
2
                "N.T."
    ..Hereinafter

                                                             1
         Detective Sergeant William Shaub has been with the Steelton Police Department for

 about 20 years and a police officer for 29 years. (N.T. 63). His assignment at the time of this

 incident was to investigate all child neglect, child abuse, child sex and unattended death cases.

 (N.T. 64). He was ca1led in that night and spoke with A.R. and took her statement. (N.T. 66). He

 recalled she was extremely upset and appeared to be injured around her left eye. (N.T. 66-67).

 He took photos of her injuries. (N.T. 70). After a case review with Children & Youth, charges

 were filed against Defendant on May 25 of that year. (N.T. 70).

        At some point in early June he received a copy of a letter from A.R. recanting her story.

(N.T. 71- 72). He called A.R. and Anita Dean (A.R. 's grandmother and Defendant's mother) to

talk about it and explained that if it were true, A.R. could be facing charges. (N.T. 72). After he

told her that, A.R. indicated the statement she had previously given was the truth, but that she did

not want her siblings in foster care. (N.T. 73). He explained that foster care was a very last

resort. (N. T. 73 ). He then spoke with Ms. Dean who said that A.R. had called Defendant and that

she overheard part of the conversation where Defendant told A.R. that she was going to lose the

house, her job, everything and asked A.R. to write this Jetter. (N.T. 73). He then asked Ms. Dean

to document he conversation and send him an email. (N.T. 73).

        Shaub denied telling A.R. or Ms. Dean that they should not talk to anyone besides him

during this call. He denied even knowing who Defendant's attorney was as they had not had a

preliminary hearing yet. (N.T. 74). Shaub recalJed that the phone conversation with Ms. Dean

and A.R. took place on or about June 20whi1e the letter was dated June 2. (N.T. 76). He believes

the email was sent June 28 or 29. (N.T. 76). Shaub recalled that A.R. did not tell him that

Defendant told her to write the letter. (N.T. 76). There is no indication in his report that he spoke

with A.R. or Ms. Dean on June 20, 2016. (N.T. 78).


                                                  2
         A.R. testified that on the night in question, she and her mother engaged in a verbal

 argument. (N.T. 25). She denied that her mother ever hit her, called her names, or was physically

 abusive in any way. (N.T. 26). She did recall giving a statement to Steelton Police that evening.

 (N.T. 28). A.R. admitted that she was upset with her mother and wanted to get her mother in

 trouble with police. (N.T. 29). A.R. testified that at the time of the incident, her mother was

 recovering from hip surgery and used a cane. (N.T. 36). Her mother was arrested later that

month, and on June 2, A.R. moved out of state to her grandmother's house. (N. T. 31 ).

        Thereafter, on June 4, 2016, she wrote a letter to the Dauphin County District Attorney's

Office recanting her statement. (N.T. 31 ). A.R. testified that she gave the police a false statement

and wanted to rectify it. (N.T. 32). Her mother never spoke to her about the case, nor instructed

her to send the letter. Her grandmother told her to send it to the District Attorney's Office. (N.T.

32). A.R. had the letter notarized to make it look better at the suggestion of her grandmother.

(N.T. 33-34).

        Ms. Dean also testified. She was aware that her daughter was being investigated for child

abuse when A.R. came to live with her because the Defendant was in contact with her to explain.

(N.T. 43 ). Ms. Dean explained that Defendant would call and talk to her and then talk to A.R.

who was excited to talk to her mother about the various things going on in her life. (N.T. 43).

Eventually, Ms. Dean discovered that Samira and A.R. were not supposed to be in contact so she

explained that to A.R. (N.T. 44).

       Ms. Dean called Det. Shaub at some point in late June to ask him what her role was and

who she should talk to about the case. Per her testimony, he told her not to speak to defense

counsel and only to speak to him. (N.T. 44). At some point, she wrote Det. Shaub an email to

memorialize the conversation they had. It indicated that Defendant was telling her and A.R. to


                                                 3
 call and tell the police and district attorney's office that the story was taken out of context. (N.T.

 45-46).

           Ms. Dean recalled the Jetter that A.R. sent and indicated that she read it after A.R.

 composed it. (N.T. 46-47). Ms. Dean did not recalJ telling A.R. where to send the letter or

 advising her on drafting the letter at all. (N.T. 47). She did not recall the date of when she called

 Det. Shaub, but believes it was it was several weeks after A.R. moved in with her as they were

 going to a bank to open an account for her. (N.T. 49).

        Defendant, Samira Randolph-Ali, testified her own behalf. She explained that when her

children misbehave she puts then on punishment. This means they lose access to electronic

devise such as ce11 phones and Kindles. (N.T. 95). On the day in question, A.R was on

punishment. (N.T. 95). Defendant's middle daughter woke her to say that A.R. had taken some

devices back. (N.T. 96). Defendant checked and saw the devices were gone so she confronted

A.R. (N.T. 96).

        A.R. returned the kindle but not her cell phone. Defendant knew that A.R. often kept her

cell phone in her brassiere so she reached out to take it. (N.T. 97). A.R. smacked her hand away.

(N.T. 96). Defendant toJd A.R. not to put her hands on her, and then reached again for the cell

phone; this time her attempt to get her phone caused A.R. 's necklace to break which upset A.R.

(N.T. 97). A.R. was hysterical and called Defendant names causing Defendant to attempt to

strike her, but A.R. blocked her and smacked her hand away. (N.T. 97). Defendant testified that

A.R. is much bigger than her and based on her own physical condition, there was no way she

could physically discipline her child. (N.T. 97-98). The conversation turned mean and A.R. said

she wished Defendant had died in a car accident, while Defendant said she wished she have

never had A.R. (N.T. 98). They kept yelling and then A.R. pushed Defendant out of the way and


                                                   4
        left the house. (N.T. 99). Defendant yelled that if A.R. was not back home by 7:00 p.m. she

        would call the police. (N.T. 99). A.R. did not return in a timely manner and Defendant did call

        the police. (N.T. 99). Officer Schaeffer arrived IO to 15 minutes later and said that A.R. was at

     the station. (N.T. 99).
-----------------                                ···-·-·······-· - .

                Defendant admitted to two telephone calls while A.R. lived in North Carolina, despite the

        fact that they were not supposed to have contact. (N. T. l 01 ). She testified that A.R. called her to

        tell her what was going on in her life. (N.T. 101). Specifically, in the second call, A.R. wanted

        her to know that she had gotten a cal1 back from her Hamilton audition and was thinking about

       _moving home so that if she got the part, she could commute to New York easily. (N.T. 102).

               At that point, Defendant said she had to explain to A.R. that since these child abuse

       allegations were made, they could not live together and really they should not even be talking.

       (N .T. I 02). A.R. grew upset and handed the phone to her grandmother. (N. T. 102). Defendant

       told her mother about the conversation. She said she had lost her job. She said that the police did

       not want to listen to A.R. when she sent the letter ten days after she was arrested. (N.T. l 02).

       Defendant vehemently denies ever instructing A.R. to send a letter recanting anything. (N.T.

       103).

                                           CONCLUSIONS OF LAW

               The defense argues that the evidence was insufficient to support a conviction for

       obstruction of a child abuse investigation and that the verdict was against the weight of the

       evidence.

               Inasmuch as Defendant is making a weight of the evidence claim, she concedes the

       existence of sufficient evidence to sustain the conviction. Com. v. Lewis, 911 A.2d 558 (Pa.

       Super. 2006) (a motion for new trial on the grounds that the verdict was against the weight of the ·


                                                                 5
 evidence concedes that there is sufficient evidence to sustain the verdict). However, we find it

 prudent to address the sufficiency of the evidence claim here.

         A claim chal1enging the sufficiency of the evidence is a question oflaw. Com v. Widmer,

 744 A.2d 745, 751 (Pa. 2000). "In reviewing the sufficiency of the evidence, we must determine

 whether the evidence admitted at trial, and all reasonable inferences drawn from that evidence,

 when viewed in the light most favorable to the Commonwealth as verdict winner, was sufficient

 to enable the fact finder to conclude that the Commonwealth established all the elements of the

 offense beyond a reasonable doubt." Com v. Diamond, 632 Pa. 475, 486-487, 83 A.3d 119, 126

 92013)(citations omitted). See also Com v. Gonzalez, 109 A.3d 711, 716 (Pa.Super. 2015).\ (Pa.

 Super. 1982).

        The Commonwealth may establish the requisite elements wholly by circumstantial

evidence. Com v. Fairley, 444 A.2d 748 (Pa.Super 1982). However, any verdict based wholly on

inference and suspicion must be overturned. Com v. Rambo, 412 A.2d 535 (Pa. 1985).

        Obstruction of a child abuse investigation is defined at 18 Pa.C.S. § 4958. It reads, "a

person commits an offense if, with intent to prevent a public servant from investigating or

prosecuting a report of child abuse under 23 Pa.C.S. Ch. 63, the person by any scheme or device

or in any other manner obstructs, interferes with, impairs, impedes or perverts the investigation

or prosecution of child abuse."

        First, the defense contends that the information only charged Defendant with obstruction

in regards to the action resulting is A.R. 's faxing a letter of recantation. There was no request to

amend the information and in the jury charge, this Court only referenced the letter as it was in

the information. However, in closing, the Commonwealth argued that the obstruction charge was

based on actions preceding the June 4, 2016, letter and the telephone call that occurred at the end


                                                  6
of June 2016. However, inasmuch as the information and jury charge relate solely to action that

preceded the June 4 letter, the sufficiency analysis must be limited to the description of the

alleged crime as set forth in the information and the jury instructions.

        We disagree that the analysis must be limited to events prior to June 4, 2016, and instead

review all of the evidence presented at trial. In reviewing a sufficiency claim this court may not

weigh the evidence and substitute our judgment for the fact finder. Com v. Lewis, 911 A.2d 558

(Pa.Super 2006). Any doubts regarding a defendant's guilt may be resolved by the fact-finder

unless the evidence is so weak and inconclusive that as a matter oflaw no probability of fact may

be drawn from the combined circumstances. Id.

        In reviewing all of the evidence, it is clear that Defendant was in communication with her

child and was attempting to impede the investigation. Defendant admitted to being in contact

with her daughter during the time of the investigation and her daughter wrote a letter recanting

her story during that time. Viewing the evidence in the light most favorable to the verdict winner,

it is clear that Defendant's communication with her daughter affected AR. 's decision to

cooperate. Further, during the phone call when she explained to AR. why A.R. could not move

home would naturally cause a child to change their story. Det. Shaub recalled A.R. changing her

story and then reverting back to the truth once he explained that her siblings were not necessarily

going into foster care. He recalls being told that Defendant told her mother and daughter to write

the letter. Defendant herself testified that she told her mother everything that was happening to

her (losing her home, job, kids) since the allegations were made. Under these circumstances

where Defendant's mother was providing a home to her child, Defendant's statements to her

mother indicate an attempt to get her mother and daughter to work against the investigation.




                                                 7
..
         Defendant's second claim is that the verdict was against the weight of the evidence. A

 verdict is said to be contrary to the evidence such that it shocks one's sense ofjustice, for

 purposes of determining whether to grant a new trial, when the figure of Justice totters on her

 pedestal or when a verdict, --·--
                              at the time of its rendition,
                                                    --    -
                                                            causes the trial judge to lose his breath,
                                            --······ ·--·····-·       .



 temporarily, and causes him to almost fall from the bench. Com. v. Cruz, 919 A.2d 279 (Pa.

 Super. 2007).

        The jury's verdict in no way caused us to lose our breath or feel that Justice had tottered

on her pedestal. They jury weighed the credibility of the witnesses, viewed all of the evidence

presented at trial and rendered its verdict accordingly.

        The defendant is advised that:

        1. You have the right to file an appeal within thirty (30) days of the entry of this Order;

        2. You have the right to the assistance of counsel in the preparation of your appeal;

        3. You have the right, if you are indigent, to appeal in forma pauperis and to proceed

           with assigned counsel as provided in Pa.R.Crim.P. 521(B).

           You have the right, if you are indigent, to appeal in fonna pauperis and to procee�

           with assigned counsel as provided in Pa.R.Crim.P. 122; and,                                   _... _.
                                                                                                         :';("


        4. You have a qualified right to bail under Pa.R.Crim.P. 521(B).
                                                                                                         ',.




                                                                          BY THE COURT:           co
                                                                                                  w



                                                                             �f-�4
                                                                          DeborahE.Curcillo, J.

Distribution:
Hon. Deborah E. Curcillo
Ry§ll--bysaght, Esq., Dauphin County District Attorney's Office
'.Timies Karl, Esq., Dauphin County Public Defender's Office

                                                                  8
