J-S91034-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                      Appellee                 :
           v.                                  :
                                               :
    ANGELA MARIE JONES                         :
                                               :
                      Appellant                :   No. 526 MDA 2016


           Appeal from the Judgment of Sentence February 18, 2016
              In the Court of Common Pleas of Lancaster County
             Criminal Division at No(s): CP-36-CR-0003758-2014


BEFORE: FORD ELLIOTT, P.J.E., RANSOM, J., and STEVENS, P.J.E. *

MEMORANDUM BY STEVENS, P.J.E.:                        FILED JANUARY 27, 2017

        Angela Marie Jones (“Appellant”) appeals from the judgment of

sentence entered by the Court of Common Pleas of Lancaster County after a

jury convicted Appellant of three counts of Endangering the Welfare of

Children (18 Pa.C.S. § 4304(a)(1)).1 Appellant claims the trial court abused

its discretion in various evidentiary matters and in imposing an excessive

sentence. After careful review, we affirm.

        The trial court aptly summarized the factual history of this case as

follows:

        In July 2014, [Appellant] lived with her fiancé, [V.D.] and her
        three children [E, H, and D] … in Ephrata, Lancaster County. At
____________________________________________


1
  We refer to Appellant and her family members with their initials as this
case involves the care of minor children.



*Former Justice specially assigned to the Superior Court.
J-S91034-16


     the time, E was six, H was three, and D was one. [Appellant’s]
     apartment building had three levels, with [Appellant’s]
     apartment occupying the top two floors. Her brother, [A.J.],
     lived in the same building with his fiancé [B.H.] in an apartment
     directly underneath his sister’s.

     On the evening of July 11, 2014, [Appellant] was at home with
     her children while her fiancé was at work. She had planned to
     attend an AA meeting from 7:00 p.m. until 8:00 p.m. at a
     church located very close to her home. [FN2] [Appellant]
     claimed she had arranged for a babysitter, [A.D.] but that [A.D.]
     was running late.     At some point that evening, [Appellant]
     decided to go to the meeting, leaving her children unattended.
     She testified that she left for the meeting at 7:45 p.m. and that,
     by the time she left, her children had been asleep for
     approximately ten minutes. She added that she returned from
     the meeting at approximately 8:30 p.m. and that the babysitter
     arrived shortly thereafter.

           [FN2:] The church building was down an alley from
           the home. The two structures were approximately
           one hundred feet apart.

     [A.J.] testified that, at approximately 7:30 P.M. on July 11,
     2014, he was sitting on a couch in his apartment watching
     television when he noticed movement on his front porch. About
     fifteen minutes later, he noticed movement on his front porch
     again and decided to investigate. When he opened the blinds
     and looked out the window, he noticed his nephew [H.] on the
     front porch crying for his mother. After consulting with his
     fiancé, [A.J.] brought [H.] into his apartment and went upstairs
     to [Appellant’s] apartment to check on her other two children.
     He found [Appellant’s] other two children unattended on the
     upper level of her apartment, and indicated that it was very
     warm in the room and that the youngest child, [D.], was
     sweating. There was one operating window air conditioning unit
     in the apartment, located in [Appellant’s] bedroom, but the door
     to that room was almost entirely closed.

     During this time, [A.J.’s fiancé, B.H.], called the police and
     Sergeant Philip Snavely of the Ephrata Borough police
     responded. The call was made at 8:05 P.M. and Sergeant
     Snavely responded at 8:07 P.M. Sergeant Snavely initially spoke
     with [B.H.] in her apartment and then proceeded up to

                                   -2-
J-S91034-16


     [Appellant’s] apartment. There, he observed [Appellant’s] two
     other children on the third floor of the apartment. He indicated
     that the bedroom appeared to be a converted attic and was very
     hot. He also observed a knife on the kitchen counter, utensils in
     the kitchen sink, and an unlocked second-story exterior door,
     which led to a second-floor balcony with steep stairs on the side
     leading to the ground level of the building. Sergeant Snavely
     then notified the Lancaster County Children and Youth Agency
     that he was leaving all three children with [A.J.] and [B.H.] He
     cleared the scene at 8:30 P.M. after advising [A.J.] and his
     fiancé to call him immediately once [Appellant] returned and to
     not allow [Appellant] to take back her children until they had
     done so. They complied.

     [B.H.] stated that, at approximately 8:45 P.M. that evening, she
     observed a truck pull into the driveway of the apartment building
     and noticed [Appellant] and [A.D.] exit that vehicle. She then
     contacted Sergeant Snavely as she had been instructed to do,
     after she heard [Appellant] knock on the door to [B.H.’s]
     apartment.     At 8:51 P.M., Sergeant Snavely was again
     dispatched to the building in response to two calls. One was
     from [B.H.], as described above, while the other was from
     [Appellant], who indicated that her brother had taken her
     children.

     Upon arriving at the scene at 8:52 P.M., Sergeant Snavely spoke
     with [Appellant] regarding her whereabouts that evening.
     Sergeant Snavely indicated that [Appellant] told him she had
     been at an AA meeting at a nearby church, that she had
     arranged for a babysitter to look after the children, that the
     babysitter was five minutes late and that, during that five-
     minute period, [A.J.] had taken her children. After hearing
     [Appellant’s] version of the events, Sergeant Snavely told her
     she was lying because he was on the scene from 8:07 P.M. until
     8:30 P.M. and never saw her. At that point, he stopped taking a
     statement from [Appellant]. He also told her to call her fiancé,
     [V.D.], so that her three children could be released to their care.
     Sergeant Snavely remained at the building until 9:15 P.M. when
     he coordinated the custody exchange of the children to
     [Appellant] and [V.D.] and advised Lancaster County Children
     and Youth accordingly. Lancaster County Children and Youth
     assured Sergeant Snavely that their organization would
     immediately investigate. As a result of these events, Sergeant
     Snavely charged [Appellant] with two counts of Endangering the

                                    -3-
J-S91034-16


      Welfare of Children (M-1) and one count of Endangering the
      Welfare of Children (F-3), one count for each of [Appellant’s]
      children.

Trial Court Opinion, 6/16/16, at 1-5 (citations and some footnotes omitted).

      Prior to her jury trial, Appellant filed a motion in limine, seeking to

preclude the prosecution from telling the jury that Appellant was at an

Alcoholics Anonymous (AA) meeting when she left her children unattended,

as Appellant claimed such testimony was irrelevant and unfairly prejudicial.

Instead, Appellant asked that the Commonwealth indicate that Appellant was

at a meeting at a church. The Commonwealth argued that using the phrase

“church meeting” was inappropriate as it would suggest the gathering had a

religious purpose. After the parties submitted briefs on this issue, the trial

court filed an order directing the parties to generally refer to the gathering

as a “meeting half a block away from the apartment.” Order, 10/1/2015.

      At the conclusion of the trial, the jury convicted Appellant of all three

counts of Endangering the Welfare of Children.      The trial court ordered a

presentence investigation and deferred sentencing. On February 18, 2016,

the trial court held Appellant’s sentencing hearing at which Appellant,

Appellant’s caseworker, and Appellant’s pastor testified on Appellant’s

behalf. The trial court then imposed three concurrent sentences of one year

less one day to two years less one day incarceration to be followed by a

three-year probationary tail. The trial court gave Appellant credit for time

served and determined that she was eligible for work release and pre-

release re-entry.   On February 26, 2016, Appellant filed a post-sentence


                                     -4-
J-S91034-16



motion, which the trial court subsequently denied on February 29, 2016.

Appellant filed a notice of appeal on March 30, 2016 and complied with the

trial court’s direction to file a concise statement of errors complained of on

appeal pursuant to Pa.R.A.P. 1925(b).

      Appellant raises five issues for our review:

      I.     The trial court erred in allowing the Commonwealth to
             present witness testimony that [Appellant] had been at an
             AA meeting where the Court initially held that attendance
             at the AA meeting could not be referenced.

      II.    The trial court erred in allowing the Commonwealth to play
             for the jury and admit into evidence three 911 calls when
             two were hearsay and one referenced the AA meeting that
             the court previously ruled was inadmissible.

      III.   The trial court erred in permitting the Commonwealth to
             simply tell the jury that [Appellant] had prior crimen falsi
             convictions and then further erred by admitting into
             evidence what the Commonwealth purported to be certified
             copies of those convictions without the Commonwealth
             calling a witness to establish and authenticate [Appellant’s]
             prior record.

      IV.    The trial court abused its discretion in denying [defense
             counsel’s] request for a mistrial when a Children and Youth
             Social Service Case Worker testified to another caseworker
             working with [Appellant] at a time prior to the incident in
             question.

      V.     The trial court’s aggregate sentence of one year less one
             day to two years less one day of incarceration, followed by
             a three year period of probation was so manifestly
             excessive as to constitute too severe a punishment and
             was clearly unreasonable under the circumstances of this
             case, and the rehabilitative needs of [Appellant], where
             the court did not impose an individualized sentence and
             instead improperly based its sentence, in part, on



                                      -5-
J-S91034-16


            [Appellant’s] previous conviction for         endangering   the
            welfare of children.

Appellant’s Brief at ii (reordered for ease of review).

      The majority of Appellant’s arguments challenge the trial court’s

discretion in the admission of certain evidence. Our standard of review for

evidentiary matters is well-established:

      The admission of evidence is a matter vested within the sound
      discretion of the trial court, and such a decision shall be reversed
      only upon a showing that the trial court abused its discretion. In
      determining whether evidence should be admitted, the trial court
      must weigh the relevant and probative value of the evidence
      against the prejudicial impact of the evidence. Evidence is
      relevant if it logically tends to establish a material fact in the
      case or tends to support a reasonable inference regarding a
      material fact. Although a court may find that evidence is
      relevant, the court may nevertheless conclude that such
      evidence is inadmissible on account of its prejudicial impact.

Commonwealth v. Antidormi, 84 A.3d 736, 749 (Pa.Super. 2014)

(citation omitted).

      In her first evidentiary challenge, Appellant claims the trial court

abused its discretion in allowing a prosecution witness to testify that

Appellant left her children unsupervised while she attended an AA meeting.

Specifically, Appellant argues that the admission of this information was

unduly prejudicial and irrelevant in her trial for unrelated charges of

Endangering the Welfare of Children.          Appellant points out that this

testimony violated the trial court’s pretrial order which directed that parties

should simply indicate that Appellant was attending a “meeting half a block

away from the apartment.” Order, 10/1/2015.



                                      -6-
J-S91034-16



      While the trial court initially ruled in its pretrial order that such a

reference to the AA meeting was inadmissible, the trial court recognized that

defense counsel proceeded to tell the jury multiple times in her opening

statement that Appellant was attending a “church meeting” despite the fact

that the Commonwealth voiced its opposition to this phrasing before trial.

The trial court agreed with the Commonwealth’s concern that the defense

counsel had misled the jury by characterizing Appellant’s AA meeting as a

church meeting as it suggested that Appellant was attending a gathering

with a religious purpose.    As a result, the trial court ruled that defense

counsel had opened the door to allow the prosecution to introduce evidence

to clarify the true nature and purpose of Appellant’s AA meeting.

      We find the trial court did not abuse its discretion in allowing the

Commonwealth to further explore Appellant’s purported explanation of her

whereabouts on the night in question. Defense counsel emphasized in her

opening statement no less than six times that Appellant was at a church,

directing the jury to “[p]ay attention to where [Appellant] was at the time.

She was at a church.”       N.T. Trial, 11/16/15, at 49.   Defense counsel’s

comments were in direct violation of the trial court’s pretrial order limiting

the parties to generally refer to Appellant’s attendance at a “meeting half a

block away from the apartment.” Order, 10/1/2015.

      Moreover, assuming arguendo that the trial court’s decision to allow

the Commonwealth to elicit testimony concerning Appellant’s attendance at

the AA meeting was incorrect, the admission of this testimony was harmless

                                     -7-
J-S91034-16



error in light of the overwhelming evidence against Appellant on the charges

of Endangering the Welfare of Children.             “[H]armless error exists if the

record demonstrates either: (1) the error did not prejudice the defendant or

the prejudice was de minimis; or (2) the erroneously admitted evidence was

merely cumulative of other untainted evidence which was substantially

similar to the erroneously admitted evidence; or (3) the properly admitted

and uncontradicted evidence of guilt was so overwhelming and the

prejudicial effect of the error was so insignificant by comparison that the

error could not have contributed to the verdict.” Commonwealth v. Shull,

148 A.3d 820, 846 (Pa.Super. 2016) (citing Commonwealth v. Hairston,

624 Pa. 143, 84 A.3d 657, 671–72 (2014)).                     Accordingly, this claim is

meritless.

       Second, Appellant argues that the trial court abused its discretion in

permitting the Commonwealth to play recordings of 9-1-1 calls for the jury,

which she characterizes as inadmissible hearsay.2 Hearsay is “a statement,

other than one made by the declarant while testifying at the trial or hearing,

offered    in   evidence    to   prove     the   truth   of     the   matter   asserted.”

Commonwealth v. Dent, 837 A.2d 571, 577 (Pa.Super. 2003); Pa.R.E.

801(c).      The trial court found the recordings were admissible under the
____________________________________________


2
  Appellant also challenges the admission of the 9-1-1 call she made, telling
the operator that she came back from an AA meeting to find her children
missing. For the reasons we set forth above, we find this claim to be
without merit.



                                           -8-
J-S91034-16



present sentence impression exception, which regardless of the availability

of the declarant to testify at trial, allows the admission of “[a] statement

describing or explaining an event or condition made while the declarant was

perceiving the event or condition, or immediately thereafter ....” Pa.R.E.

803(1).

      Appellant specifically claims that the 9-1-1 tapes did not meet the

present sense impression hearsay exception as B.H., the declarant on the

recordings, did not go into Appellant’s apartment and find the children

unattended before making the 9-1-1 call.        However, the trial court found

that B.H. made statements contemporaneous with the events she described.

In the first 9-1-1 call, B.H indicated that Appellant’s children were

unattended as B.H. observed Appellant’s three-year old child crying alone on

her front porch. In the second 9-1-1 call, B.H. reported that Appellant had

returned home as Sergeant Snavely had asked her to do.                 Moreover, the

information in the recordings were corroborated by B.H., who testified and

was   subject   to   cross-examination     before   the        tapes   were    played.

Accordingly, the trial court properly exercised its discretion in admitting the

9-1-1 recordings into evidence.

      Third, Appellant claims it was error for the trial court to allow the

Commonwealth to admit certified copies of Appellant’s prior crimen falsi

convictions   without   requiring   the   prosecution     to    call   a   witness   to

authenticate the documents. However, Appellant seemingly ignores the trial

court’s citation to authority establishing that certified records are “self-

                                      -9-
J-S91034-16



authenticating,” meaning that they “require no extrinsic evidence of

authenticity in order to be admitted.” Pa.R.E. 902(4).          Moreover, the trial

court noted:

      [i]n Pennsylvania[,] “[t]he use of prior convictions to impeach
      the credibility of a criminal defendant has long been recognized
      as a legitimate prosecutorial tool” as long as certain procedural
      safeguards are met. Commonwealth v. King, 316 A.2d 878,
      879 (Pa. 1974). Before evidence of the convictions may be
      admitted, “clear proof” must be adduced that, among other
      things “the record is authentic and accurate” and “that the
      present defendant is the same person as that to whom the prior
      convictions refer.”     [Id.]     While “the records custodian’s
      testimony” may be used to establish the authenticity and
      accuracy of the record,” a “duly certified copy of the record” will
      suffice and “will be considered as competent evidence.” [Id.] at
      879 n.2.

T.C.O. at 21-22.       As Appellant offers no advocacy to support his bald

conclusion that the prosecution should have been required to present more

evidence of the certified records’ authenticity, we decline to review this

meritless argument further.

      Fourth, Appellant claims the trial court erred in denying her motion for

a   mistrial   after   a   prosecution   witness,   Children   and   Youth   Agency

caseworker Ashley Caban, testified that upon contacting Appellant for the

first time, Ms. Caban “was aware that [Appellant] had a caseworker assigned

through [the] agency.”        N.T. Trial, at 103.    Appellant argues that it was

extremely prejudicial for the jury to know that Appellant had an open case

with Children and Youth at the time that she was charged with the instant

counts of Endangering the Welfare of Children.



                                         - 10 -
J-S91034-16



      Our standard of review for such a challenge is well-established:

      Our review of a trial court's denial of a motion for a mistrial “is
      limited to determining whether the trial court abused its
      discretion.” Commonwealth v. Fortenbaugh, 620 Pa. 483, 69
      A.3d 191, 193 (2013) (internal quotation marks omitted). A trial
      court may grant a mistrial “only where the incident upon which
      the motion is based is of such a nature that its unavoidable
      effect is to deprive the defendant of a fair trial by preventing the
      jury    from    weighing    and   rendering      a   true   verdict.”
      Commonwealth v. Simpson, 562 Pa. 255, 754 A.2d 1264,
      1272 (2000). A mistrial “is not necessary where cautionary
      instructions    are     adequate    to     overcome       prejudice.”
      Commonwealth v. Chamberlain, 612 Pa. 107, 30 A.3d 381,
      422 (2011).

Commonwealth v. Cash, ---Pa.---, 137 A.3d 1262, 1273 (2016)

      In this case, the record supports the trial court’s decision to deny

Appellant’s request for a mistrial. We agree with the trial court’s observation

that Ms. Caban’s statement that Appellant had an agency caseworker

assigned to her was “tangential[,] fleeting[, and] … in no way had the

unavoidable effect of depriving [Appellant] a fair trial.”        T.C.O. at 20

(quotation marks omitted).      Moreover, the trial court sustained defense

counsel’s immediate objection and promptly gave the jury a curative

instruction that they were only to evaluate Ms. Caban’s statements with

regard to [Appellant’s] alleged conduct on July 11, 2014. Appellant cannot

show prejudice resulted from Ms. Caban’s comment, as a jury is presumed

to follow a trial court’s curative instruction. See Cash, ---Pa.---, 137 A.3d

at 1273.   As such, we find the trial court did not abuse its discretion in

refusing to grant a mistrial.



                                     - 11 -
J-S91034-16



      Lastly, Appellant contends the trial court imposed a manifestly

excessive sentence.      It is well-established that “[a] challenge to the

discretionary aspects of sentencing does not entitle an appellant to review as

of right.”    Commonwealth v. Bynum-Hamilton, 135 A.3d 179, 184

(Pa.Super. 2016).    In order to invoke this Court’s jurisdiction to address

such a challenge, the appellant must satisfy the following four-part test: the

appellant must (1) file a timely notice of appeal pursuant to Pa.R.A.P. 902,

903; (2) preserve the issues at sentencing or in a timely post-sentence

motion pursuant to Pa.R.Crim.P. 720; (3) ensure that the appellant’s brief

does not have a fatal defect as set forth in Pa.R.A.P. 2119(f); and (4) set

forth a substantial question that the sentence appealed from is not

appropriate under the Sentencing Code under 42 Pa.C.S. § 9781(b).            Id.

Appellant has filed a timely notice of appeal, preserved his sentencing claim

before the trial court, and submitted a Rule 2119(f) statement in his

appellate brief.

      We may now determine whether Appellant has raised a substantial

question for our review.         “The determination of what constitutes a

substantial   question   must    be   evaluated   on   a   case-by-case   basis.”

Commonwealth v. Caldwell, 117 A.3d 763, 768, (Pa.Super. 2015). This

Court has provided as follows:

      A substantial question exists only when the appellant advances a
      colorable argument that the sentencing judge's actions were
      either: (1) inconsistent with a specific provision of the
      Sentencing Code; or (2) contrary to the fundamental norms
      which underlie the sentencing process.

                                      - 12 -
J-S91034-16



      When imposing a sentence, the sentencing court must consider
      the factors set out in 42 Pa.C.S. § 9721(b), that is, the
      protection of the public, gravity of offense in relation to impact
      on victim and community, and rehabilitative needs of the
      defendant. And, of course, the court must consider the
      sentencing guidelines.

Id. (internal citations omitted).

      Specifically, Appellant claims the trial court “double-counted” her prior

2015 conviction for endangering the welfare of a child. Appellant’s Brief at

28. Appellant contends that the trial court’s reference to the prior conviction

was improper as “any prior convictions [A]ppellant had were already

accounted for when her prior record score was calculated.” Appellant’s Brief

at 28. This Court has found that an allegation that the trial court has

improperly “double-counted” a defendant’s criminal history and prior record

score is a substantial question for review.     Commonwealth v. Goggins,

748 A.2d 721, 728 (Pa.Super. 2000).

      Given the circumstances of Appellant’s convictions and her prior

criminal record, the sentencing guideline range for Appellant’s minimum

sentence was nine to sixteen months on each of the three convictions for

Endangering the Welfare of a Child.           The trial court imposed three

concurrent standard range sentences of one year less one day to two years

less one day incarceration to be followed by three years probation.

      Despite Appellant’s argument to the contrary, the record contains no

evidence that the trial court improperly considered his prior conviction for

Endangering the Welfare of a Child.          Rather, the trial court discussed


                                    - 13 -
J-S91034-16



Appellant’s prior conviction in clarifying its rationale in selecting incarceration

an appropriate sentencing alternative for the current crimes. The trial court

noted that Appellant already been “afforded the privilege of house arrest” as

a sentence for the previous conviction and was charged with the instant

offenses shortly after completing parenting classes.                   N.T. Sentencing,

2/18/16, at 11.        As a result, the trial court felt a stronger sanction was

warranted because Appellant’s previous sentence of house arrest had been

ineffective as Appellant demonstrated a propensity to reoffend.

      Moreover, the trial court fully discussed its reasons for imposing its

sentence    on    the     record.       The    trial   court    considered    Appellant’s

“comprehensive and detailed Presentence Investigation” as well as the

sentencing guidelines, Appellant’s character, counsels’ arguments, and the

testimony given at the sentencing hearing.             N.T. Sentencing, at 11.       This

Court has held that “where the sentencing court imposed a standard-range

sentence with the benefit of a pre-sentence report, we will not consider the

sentence excessive. In those circumstances, we can assume the sentencing

court “was aware of relevant information regarding the defendant's

character and weighed those considerations along with mitigating statutory

factors.” Commonwealth v. Corley, 31 A.3d 293, 298 (Pa.Super. 2011)

(citing Commonwealth v. Devers, 519 Pa. 88, 546 A.2d 12, 18 (1988)).

      Emphasizing the need to protect the public and to deter Appellant from

reoffending,     the   trial   court   also   emphasized       that   “[i]ncarceration   is

warranted because a lesser sentence would depreciate the seriousness of

                                          - 14 -
J-S91034-16



the crimes.” N.T. Sentencing, at 11. In its 1925(b) opinion, the trial court

noted that the circumstances of the instant offenses “deserve special

mention”:

      Appellant made the selfish choice to put her own interests above
      those of her three children on a hot July night by leaving an
      infant, a three-year old, and a six-year-old unattended in an
      unlocked, converted third-story attic without a fan or air-
      conditioning for well over an hour. Indeed, making the situation
      even more egregious is that [Appellant] had a window air-
      conditioning unit in her own bedroom, but decided not to share it
      with her children. During [Appellant’s] absence, her three-year
      old son opened an exterior door and made his way down a set of
      steep, rickety stairs to his neighbor’s porch, where he started
      crying for his mother.
                                     ***
      [Appellant] left her children to fend for themselves for an
      indeterminate amount of time before arriving home nearly forty-
      five minutes after the meeting she claims to have attended had
      concluded – a meeting that was supposedly merely steps away
      from her home.

T.C.O. at 25-27. Accordingly, we find that the trial court properly exercised

its discretion in imposing Appellant’s sentence.

      For the foregoing reasons, we affirm the judgment of sentence.

     Affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/27/2017




                                    - 15 -
