J-A05042-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    DEVLIN JAKE JONES, JR.                     :
                                               :
                       Appellant               :   No. 577 WDA 2018

             Appeal from the Judgment of Sentence August 10, 2017
     In the Court of Common Pleas of Allegheny County Criminal Division at
                        No(s): CP-02-CR-0005739-2016


BEFORE: GANTMAN, P.J.E., SHOGAN, J., and MURRAY, J.

MEMORANDUM BY MURRAY, J.:                           FILED FEBRUARY 21, 2019

       Devlin Jake Jones, Jr. (Appellant) appeals from the judgment of

sentence imposed after the trial court convicted him of aggravated

assault/victim less than 6 years old (aggravated assault) and endangering the

welfare of children1 (EWC).            Appellant argues that the evidence was

insufficient to show that the crimes occurred within the time period alleged in

the criminal information. Upon review, we affirm.



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118 Pa.C.S.A. §§ 2702(a)(8) (“[A] person 18 years of age or older” “is guilty
of aggravated assault if he . . . attempts to cause or intentionally, knowingly
or recklessly causes bodily injury to a child less than six years of age.”);
4304(a)(1) (“A parent . . . supervising the welfare of a child under 18 years
of age . . . commits an offense if he knowingly endangers the welfare of the
child by violating a duty of care, protection or support.”).
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       The Commonwealth alleged that Appellant and Linda Sherrell Jones

(Mother) physically abused and endangered the welfare of their 5 children, all

of whom were under the age of 7.2 Pertinently, the Commonwealth’s criminal

information against Appellant stated that the offenses occurred between “April

1, 2015 through September 22, 2015.” Criminal Information, 8/11/16, at 2.3

       Appellant and Mother were tried jointly in a bench trial on May 26, 2017.

Kaitlyn Leo, a caseworker with the Allegheny County Department of Children,

Youth, and Families (CYS), testified that CYS began in-home services with

Appellant’s family in April of 2014, due to housing issues. N.T. Trial, 5/26/17,

at 64. At that time, the home did not have electricity and “[t]here was little

to no food in the home.”         Id. at 64-65.   In April of 2015, CYS observed

“unexplained” injuries on the children, and one of the children, D.T. (Sibling),

who was approximately 4 years old, “disclosed physical abuse.”4 Id. at 66-


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2 Mother has two other children. See In the Interest of D.S., 1377 WDA
2017 (unpublished memorandum) (Pa. Super. Dec. 21, 2018) (affirming
termination of Mother’s parental rights).

3 We note that the electronic record certified on appeal does not include an
official trial docket. While the face of the criminal information is stamped with
a filing date of August 11, 2016, an “index” to the record states that the
information was filed on August 17, 2016. The “index,” however, is not
certified by the clerk of courts, nor does it include any information as to if and
when documents were properly served. Thus, we remind both the trial court
and Appellant’s counsel that the record shall include “a certified copy of the
docket entries prepared by the clerk of the lower court.” See Pa.R.A.P. 1921;
Commonwealth v. Landis, 89 A.3d 694, 697 n.5 (Pa. Super. 2014) (“[I]t is
the appellant’s burden to ensure that the certified record is complete.”).
4 The trial transcript does not specify who observed the injuries in April of

2015, nor to whom Sibling disclosed the abuse. See N.T., 5/26/17, at 66.

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68, 130. CYS then began “intensive in-home services,” which included visits

to the home 3 to 4 times per week. Id. at 68.

      On September 21, 2015, Caseworker Leo observed injuries on another

child, D.T. (Sibling-2), who was approximately 6 years old; the injuries were

on Sibling-2’s lower back and outer thighs. N.T., 5/26/17, at 77. The injuries

were not consistent with the parents’ explanations, and Caseworker Leo took

Sibling-2 to the hospital, where he had both a physical examination and a

forensic interview. See Trial Court Opinion, 7/9/18, at 2; N.T., 5/26/17, at

112. The following day, September 22, 2015, CYS obtained an emergency

custody authorization from the juvenile court and removed all of the children

from Appellant and Mother’s home. N.T., 5/26/17, at 79-82. That same day,

the children had pre-foster placement physical examinations at Children’s

Hospital of Pittsburgh, with Dr. Adelaide Eichman, a pediatrician and expert in

child abuse and neglect.    Id. at 88, 112.     At this time, Caseworker Leo

observed injuries on all 5 of the children. Id. at 88.

      Two of the children, Sibling and D.T. (Child), who were not twins, but

both around 3 years old during the relevant time period in 2015, testified at

trial. At the time of trial, Sibling was 7 years old, Child was 6 years old, and

they were living together in the same foster home. N.T., 5/26/17, at 18-19,

46.   Child related that if the children got in trouble, Appellant and Mother

“would whup us”; he also testified that Appellant hit him on his back with a

hanger, leaving marks. Id. at 52-54. Child described an incident when he


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and two of his siblings were in the bath alone and splashing water. Id. at 55.

Appellant came into the bathroom, went out and got a hanger, returned, and

“beat” the children. Id. at 55-56. Child stated that he “got hurt.” Id. at 56.

Sibling testified that when he “broke the rules,” Appellant and Mother beat

him with an electrical cord and a hanger on his “bum” and sometimes his legs,

and that it hurt. Id. at 22.

       The Commonwealth presented the videotaped testimony of Dr.

Eichman. The trial court summarized:

       Dr. Eichman testified that she examined [Sibling] on September
       21, 2015 and observed various injuries on [Sibling.] Dr. Eichman
       observed multiple linear marks on [Sibling’s] back and loop marks
       on the child-victim’s right outer thigh. Dr. Eichman opined that
       the injuries sustained by [Sibling] were “pattern marks” caused
       by an implement of some sort and that they would have caused
       substantial pain when they were inflicted. Dr. Eichman had
       reviewed records . . . relating to the examination of [Sibling] at
       the Children’s Hospital of Pittsburgh in April of 2015. Dr. Eichman
       opined that [Sibling] was the victim of physical abuse.

Trial Court Opinion, 7/9/18, at 2-3.

       Neither Appellant nor Mother testified.    Mother did not present any

evidence.     Appellant presented a videotape of a July 27, 2015 forensic

interview of Child. N.T. Trial, 5/26/17, at 138, 148.

       At the conclusion of trial, the court found Appellant guilty of aggravated

assault against Child and EWC.5 On August 10, 2017, the court sentenced

____________________________________________


5The trial court found Mother guilty of the same offenses, and on appeal, this
Court affirmed her judgment of sentence. Commonwealth v. Jones, 1359



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Appellant to 6 to 12 months of incarceration, followed by 5 years of probation,

on the aggravated assault count, with no further penalty for EWC. Appellant

filed a timely post-sentence motion, which the trial court denied on March 26,

2018. Appellant filed this timely appeal. Both Appellant and the trial court

have complied with Pennsylvania Rule of Appellate Procedure 1925.6

       On appeal, Appellant states his issue as follows:

       “In criminal trials the proof offered by the Commonwealth must
       measure up to the charge made in the indictment.” Here, the
       Information specifically alleged that the crime occurred between
       April 1, 2015 and September 22, 2015. At trial, however, the
       Commonwealth failed to prove that the alleged crime occurred
       during this timeframe. Thus, the “proof” failed to “measure up to
       the charge made in the indictment.” Did the court err in convicting
       [Appellant]?

Appellant’s Brief at 4.

       Appellant contends that because the Commonwealth alleged in the



____________________________________________


WDA 2017 (unpublished memorandum) (Pa. Super. Nov. 20, 2018).
Additionally, Mother’s parental rights to the 5 children in this case, as well as
her 2 other children, were terminated. In The Interest of D.S., 1377 WDA
2017 at 4 n.1 (unpublished memorandum) (Pa. Super. Dec. 21, 2018)
(affirming termination of parental rights). Finally, we note that according to
Appellant, his parental rights have also been terminated. Appellant’s Brief at
9.

6 Appellant timely requested, and was granted, additional time to file both a
post-sentence motion and the court-ordered Rule 1925(b) statement. We
note that Appellant’s Rule 1925(b) statement spans 4 pages and includes
extensive argument; we remind counsel that a Rule 1925(b) “[s]tatement
shall set forth only those rulings or errors that the appellant intends to
challenge,” “shall concisely identify each ruling or error,” and “should not be
redundant or provide lengthy explanations as to any error.” See Pa.R.A.P.
1925(b)(4)(i)-(ii), (iv).

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criminal information that his criminal conduct occurred between April 1, 2015

and September 22, 2015, the Commonwealth was required to establish that

the offenses were in fact committed during that period. Appellant asserts that

the Commonwealth failed to do so. In support, he reasons that “[a]bsolutely

no competent testimony offered at trial put the offense dates within this

timeframe.      The child witnesses did not identify the dates they were

disciplined.” Appellant’s Brief at 19. Appellant also points out that the CYS

caseworker, Ms. Leo, testified that the child-victim “initially disclosed” that he

was abused in April of 2015 — months before she began working with the

family in July of 2015 — without any explanation of how, when, where, or to

whom the disclosure was made. Id. at 10, citing N.T. Trial, 5/26/17, at 66,

68. Appellant additionally references Dr. Eichman’s video testimony that she

could not say when the child-victim’s injuries occurred, or who caused them.

Id. at 10-11.

       We first note that in his trial court pleadings, Appellant inaccurately cited

the criminal-information dates as March 1, 2015 through April 30, 2015.7 See

Jones, 1359 WDA 2017; Appellant’s Concise Statement of the Errors

Complained of on Appeal, 6/5/18, at ¶¶ 15, 17; Appellant’s Amended Post-

Sentence Motion, 11/27/17, at ¶¶ 16, 18. The trial court likewise stated that


____________________________________________


7 There were apparently two criminal cases filed against Mother; one with
these alleged offense dates (March 1 through April 30, 2015) and the second
case with the same alleged offense dates as Appellant (April 1, 2015 through
September 22, 2015). See N.T., 5/26/17, at 157-158.

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the criminal information dates were March 1, 2015 through April 30, 2015.

Trial Court Opinion, 7/9/18, at 4. Further, the aggravated assault count of

which Appellant was convicted, Count 1, named “John Doe #3” as the victim

and pertained to Child.      See N.T. Trial, 5/26/17, at 160.        However, in

discussing this count, the trial court considered the trial testimony of Sibling.

See Trial Court Opinion, 7/9/18, at 1-2 (discussing testimony of 7-year old

child). However, these discrepancies do not affect our disposition.

      Pennsylvania Rule of Criminal Procedure 560(B) states that a criminal

information “shall be valid and sufficient in law if it contains”:

      the date when the offense is alleged to have been committed if
      the precise date is known, and the day of the week if it is an
      essential element of the offense charged, provided that if the
      precise date is not known or if the offense is a continuing one, an
      allegation that it was committed on or about any date within the
      period fixed by the statute of limitations shall be sufficient[.]

Pa.R.Crim.P. 560(B)(3). This Court has stated:

           It is the duty of the prosecution to “fix the date when an
           alleged offense occurred with reasonable certainty. . . .”
           The purpose of so advising a defendant of the date when
           an offense is alleged to have been committed is to
           provide him with sufficient notice to meet the charges
           and prepare a defense.

           However, “[d]u[e] process is not reducible to a
           mathematical formula,” and the Commonwealth does
           not always need to prove a specific date of an alleged
           crime. Additionally, “indictments must be read in a
           common sense manner and are not to be construed in
           an overly technical sense.”        Permissible leeway
           regarding the date provided varies with, inter alia, the
           nature of the crime and the rights of the accused. See
           Pa.R.Crim.P. 560(B)(3), stating that it shall be sufficient
           for the Commonwealth to provide in the information, if

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           the precise date of an offense is not known, an allegation
           that the offense was committed on or about any date
           within the period fixed by the statute of limitations.

      Case law has further “established that the Commonwealth must
      be afforded broad latitude when attempting to fix the date of
      offenses which involve a continuous course of criminal conduct.”

Commonwealth v. Brooks, 7 A.3d 852, 857–858 (Pa. Super. 2010)

(citations omitted).

      “[T]he ‘Commonwealth may not be required to prove the single specific

date of a crime in every instance[;]’ instead, ‘any leeway permissible would

vary with the nature of the crime and the age and condition of the victim

balanced   against     the   rights   of   the   accused.’”   Id.   at   858,   citing

Commonwealth v. McClucas, 516 A.2d 68, 70-71 (Pa. Super. 1986). In

Commonwealth v. Niemetz, 422 A.2d 1369 (Pa. Super. 1980), the

Commonwealth alleged that the defendant repeatedly committed sexual

offenses against his step-daughter from the time the step-daughter was 9

years old until she was 16. Id. at 1371. The criminal information averred

that the alleged offenses occurred “on (or about) divers[e] dates beginning in

1972 and continuing until August, 1977.” Id. at 1372. The Commonwealth

acknowledged that it unable to provide more specificity in the dates.             On

appeal, this Court held that the information “appear[ed] to fit precisely [Rule

560(B)(3)’s predecessor rule’s] proviso that an allegation that an offense was

committed ‘on or about any date within the period fixed by the statute of

limitations shall be sufficient’ when (1) time is not of the essence and (2) a


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precise date is unknown.” Id. at 1373 (emphasis added). Further, we noted

that the defendant had not questioned the validity of the information, but

rather the lack of specificity in the dates, and that “time [was] not of the

essence in the crimes for which [he] was charged and convicted.” Id.

      Preliminarily, we note that in this case, Appellant did not object to Child

or Sibling’s competency to testify, and thus his argument that there was “no

competent testimony” is waived. Commonwealth v. Molina, 33 A.3d 51,

55 (Pa. Super. 2011) (en banc) (“[I]t is ‘well-settled that a defendant’s failure

to object to allegedly improper testimony at the appropriate stage in the

questioning of the witness constitutes waiver.’”); Pa.R.A.P. 302(a) (“Issues

not raised in the lower court are waived and cannot be raised for the first time

on appeal.”); see also Commonwealth v. Anderson, 552 A.2d 1064 (Pa.

Super. 1988) (“Because a trial judge has a superior opportunity to assess the

competency of a witness, an appellate court should virtually never reverse a

competency ruling.”).

      Moreover, even in the absence of waiver, the trial court properly opined

that Caseworker Leo’s credible testimony that she observed injuries on the

children, in conjunction with Dr. Eichman’s testimony, was sufficient to prove

that the abuse occurred within the time period set forth in the criminal

information. Trial Court Opinion, 7/9/18, at 4. This conclusion is supported

by both the record and the law. See Brooks, 7 A.3d at 857 (“[T]he [finder]

of fact while passing upon the credibility of witnesses and the weight of the


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evidence produced, is free to believe all, part or none of the evidence.”). For

example, Caseworker Leo testified that she observed injuries on Child on

September 22, 2015 — the last day of the time period set forth in the criminal

information — and that the injuries were not consistent with Appellant’s

explanation.   N.T., 5/26/17, at 100.      Further, while Appellant challenges

Caseworker Leo’s testimony about Sibling’s initial disclosure that he was

abused, Appellant ignores that in overruling his hearsay objection regarding

the initial disclosure, the trial court explained that it would consider Ms. Leo’s

testimony only as an explanation as to why CYS changed Appellant’s service

plan, and not for the truth of the matter asserted. Appellant also disregards

Caseworker Leo’s repeated testimony that subsequent to the initial disclosure,

she personally observed injuries on the children.

      Finally, Appellant does not otherwise contest the validity of the criminal

information, and he does not argue that “timing was of the essence,” that he

was denied sufficient notice or due process, or that he was unable to

adequately prepare a defense. See Niemetz, 422 A.2d at 1373. Appellant

also disregards the legal authority which provides the Commonwealth with

leeway in proving the date of an offense subject to the “nature of the crime”

and the “age and condition of the victim” when there is a “continuous course

of criminal conduct.” See Brooks, 7 A.3d at 857-858.

      For all of these reasons, we find no merit to Appellant’s argument.

Accordingly, we affirm the judgment of sentence.


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     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/21/2019




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