J-A30034-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

TINA TEDESCO

                            Appellant                  No. 1053 EDA 2016


       Appeal from the Judgment of Sentence entered October 26, 2015
               In the Court of Common Pleas of Monroe County
               Criminal Division at No: CP-45-CR-0002229-2013


BEFORE: BOWES, OLSON, and STABILE, JJ.

MEMORANDUM BY STABILE, J.:                            FILED MARCH 20, 2017

        Appellant, Tina Tedesco, appeals from the judgment of sentence

imposed on October 26, 2015 in the Court of Common Pleas of Monroe

County following her convictions of third degree murder, neglect of care-

dependent person, theft by unlawful taking, theft by failing to make required

disposition of funds received, and tampering with/fabricating physical

evidence.1      With the exception of tampering with physical evidence,

Appellant also was convicted of conspiracy to commit each of the

enumerated crimes.2         The trial court sentenced Appellant to an aggregate

____________________________________________


1
    18 Pa.C.S.A. §§ 2502(c), 2713(a)(1), 3921(a), 3927(a), and 4910(1).
2
    18 Pa.C.S.A. § 903.
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term of incarceration of not less than 183 (15.25 years) months and not

more than 366 months (30.5 years). Appellant filed post-sentence motions

that were denied by order of March 3, 2016. This timely appeal followed. 3

Both Appellant and the trial court complied with Pa.R.A.P. 1925. Following

review, we affirm.

       The trial court issued findings of fact in an opinion accompanying its

order denying Appellant’s omnibus pre-trial motion.        Trial Court Pre-Trial

Opinion (“Pre-Trial Opinion”), 6/20/14, at 1-7.           The trial court also

thoroughly summarized the evidence presented at trial in its opinion

disposing of Appellant’s post-sentence motion.        Trial Court Post-Sentence

Opinion (“Post-Sentence Opinion”), 3/3/16, at 1-11. We hereby adopt the

findings of fact and summary of trial evidence as our own and incorporate

them herein by reference.

       Briefly, Appellant and her husband had a relationship with their victim,

Barbara Rabins, for approximately twelve years preceding Ms. Rabins’

August 18, 2011 death at the age of 70.          Ms. Rabins was a mentally and

physically disabled individual who was estranged from her out-of-state

family and whose father established a trust fund for her before his death.

____________________________________________


3
  Appellant was tried, convicted, and sentenced with her husband, John
Tedesco. Although their cases were joined for trial, they were convicted of
the same crimes, and they received identical sentences, their appeals have
not been consolidated. Mr. Tedesco’s appeal is docketed at No. 787 EDA
2016.



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Appellant and her husband received $2,000 per month from the trust for

rent and incidental expenses as well as money from the trust to pay for their

utility bills.   In addition, Appellant, as payee, received Ms. Rabins’ $1,300

monthly social security checks.       Also, Appellant and her husband were

designated beneficiaries of $100,000 life insurance policy insuring Ms.

Rabins and identifying her as their aunt.

       In 2010, Ms. Rabins suffered a stroke and was admitted to a

rehabilitation facility.   The Tedescos insisted that she be released to their

care shortly thereafter and Ms. Rabins was discharged against medical

advice. At the time of her discharge on July 14, 2010, Ms. Rabins weighed

219 pounds. At the time of her August 2011 death, which was caused by

“hypernatremic dehydration with aspiration of food bolus,” i.e., dehydration

with high sodium levels and choking (on a piece of cheese), Ms. Rabins

weighed 116 pounds. An autopsy revealed that, at the time of her death,

Ms. Rabins was wearing an adult disposable diaper that was wet with urine,

feces and blood.      She suffered from pressure ulcers on her chest, thighs,

legs, feet, right elbow and forearm, back, lower back, buttocks and hand.

Photographs taken at the autopsy showed that her arms and hands were

dirty and covered in feces, with feces under her overgrown fingernails that

were an inch to an inch and a half long on one hand. Ultimately, the doctor

who conducted the autopsy announced that the manner of death was

neglect of a care dependent person, fitting the medical definition of


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homicide.       As   a   result,   the   Pennsylvania   State   Police   initiated   an

investigation into her death, including a search of the Tedescos’ home.

Appellant and her husband both voluntarily gave statements to the police.

        The Tedescos contended that they cared for Ms. Rabins in their home

but evidence suggested that she was actually living in an apartment with a

roommate, Tom Miller, who was hospitalized in a V.A. hospital beginning in

March of 2011 and beyond Ms. Rabins’ death.             A search of the apartment

revealed an apartment in a filthy condition that contained wheelchairs,

walkers, and a blanket and couch that were soiled.

        The Tedescos were arrested in July 2013 and charged with the crimes

of which they were convicted. In this appeal from the judgment of sentence

entered by the trial court, Appellant asks us to consider eleven issues, all but

one of which were preserved in her Rule 1925(b) statement.

        Appellant’s issues, which we have reordered for ease of discussion, are

as follows:

        I.     Whether the trial court erred in admitting the grand jury
               testimony of [John Tedesco] against [Appellant] at trial in
               violation of Bruton?[4]

        II.    Whether the trial court commited (sic) error by failing to
               dismiss due to prosecutorial delay?

        III.   Whether the trial court committed error by denying
               [Appellant’s] motion to sever her trial from her husband
               John Tedesco’s trial?
____________________________________________


4
    Bruton v. United States, 391 U.S. 123 (1968).



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      IV.    Whether the trial court erred in failing to suppress the
             statements made by [Appellant] to the police where the
             interrogation lasted several hours and [Appellant] was
             never advised of her Miranda rights?

      V.     Whether the trial court erred in allowing Nurse Blanchard-
             Doran to testify as an expert, over the objection of counsel
             for [Appellant], where the Commonwealth failed to provide
             notice to the defense of this intended use of the witness,
             no report was prepared and her testimony was not able to
             be viewed by defense expert (sic)?

      VI.    Whether the trial court erred in allowing the witness Jillian
             Viscardi to testify without provideing (sic) any notice to the
             defense that she was a witness or that the attorney for the
             Commonwealth himself interviewed her so no written
             statement existed?

      VII.   Whether the trial court erred in allowing the cumulative
             testimony of Corporal [Gross] regarding the condition of
             the victim’s body?

      VIII. Whether the trial court erred in allowing the admission of
            documents and items into evidence over the objection of
            counsel for the defense, that had not been provided in
            discovery in violation of Pa.R.Cr.P. 573?

      IX.    Whether the trial court erred in failing to grant
             [Appellant’s] motion for change of venue due to the
             overwelming (sic) amount of negative pre-trial publicity?

      X.     Whether the trial court erred and abused its discretion in
             sentencing [Appellant] in the top end of the standard
             range of the sentencing guidelines, failing to consider the
             numerous mititgating (sic) factors cited by the defense at
             the sentencing hearing?

      XI.    Whether the trial court erred in failing to grant
             [Appellant’s] motion for judgment of acquittal on the
             tampering with evidence charge as there was insufficient
             evidence to convict presented at trial to convict (sic)?

Appellant’s Brief at 8-10.

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       In her first issue, Appellant asks us to find trial court error for

admitting the grand jury testimony of her husband and co-defendant, John

Tedesco, in violation of Bruton. However, Appellant did not preserve this

issue in her Rule 1925(b) statement. “Any issues not raised in a Pa.R.A.P.

1925(b) statement will be deemed waived.”        Commonwealth v. Hill, 16

A.3d 484, 494 (Pa. 2011) (quoting Commonwealth v. Lord, 719 A.2d 306,

309 (Pa. 1998)).5

       In her second issue, Appellant argues that the trial court erred by not

dismissing the case due to prosecutorial delay.    Again, Ms. Rabins died in

August 2011. Appellant and her husband were charged with the murder of

Ms. Rabins in July 2013.

       In Commonwealth v. Wright, 865 A.2d 894, 901 (Pa. Super. 2004),

this Court determined that:

       [T]he standards set out by the Supreme Court in
       Commonwealth v. Snyder, 552 Pa. 44, 713 A.2d 596 (1998),
       and the subsequent application of those standards in the en banc
       decision of this Court in Commonwealth v. Snyder, 761 A.2d
       584 (Pa. Super. 2000) (en banc), appeal denied, 572 Pa. 703,
       813 A.2d 841 (2002), are the touchstones upon which we must
       analyze the claim of appellant.
____________________________________________


5
  Even if not waived, Appellant would not prevail on her Bruton claim. As
the trial court explained in addressing the issue, which was raised in
Appellant’s post-sentence motion, a reference to Appellant in the testimony
was appropriately changed to “the other person” on one occasion, avoiding
any Bruton violation. Trial Court Opinion, 3/3/16, at 25. A later reference
to Appellant was not redacted but no objection was lodged and her
husband’s response did not implicate Appellant but rather implicated himself
as the one who cared for Ms. Rabins.



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Id. at 901. We explained:

      The Supreme Court in Snyder held that pre-arrest delay
      constitutes a due process violation where there has occurred
      “actual prejudice to the defendant” and there existed “no proper
      reasons     for     postponing     the    defendant's     arrest.”
      Commonwealth v. Snyder, supra, 552 Pa. at 62, 713 A.2d at
      605. This Court, thereafter, stated that “even in the face of
      prejudice, delay is excusable if it is a derivation of reasonable
      investigation.” Commonwealth v. Snyder, supra, 761 A.2d at
      587 (emphasis supplied), citing Commonwealth v. Sneed, 514
      Pa. 597, 526 A.2d 749 (1987). Thus, it is clear that any inquiry
      into pre-arrest delay must be directed to both the existence of
      prejudice to the defendant and to the cause of the delay.

Id. (footnote omitted). Further,

      Taking our direction from the procedure described in Snyder, we
      deem it appropriate that in extended pre-arrest delay cases
      there should be a shifting burden, with the initial burden upon
      the accused to establish that the pre-arrest delay caused actual
      prejudice, and the subsequent burden upon the Commonwealth
      to provide a reasonable basis for the extended delay in
      prosecuting the crime.

Id. at 902.

      As the trial court noted, Appellant does not suggest that the statute of

limitations had expired for any of the crimes with which she was charged.

Pre-Trial Opinion, 6/20/14, at 8. Instead, Appellant argues that she suffered

prejudice as a result of the pre-arrest delay because two potential witnesses,

Tom Miller and Ronnie Mendel, were not available to testify. However, as

the trial court recognized, Mr. Miller was already in the V.A. Hospital at the

time of Ms. Rabins’ death and could not recall his contacts with Ms. Rabins or

Mr. Tedesco at that time.    Id. at 12.   Further, Ms. Mendel, who was Ms.


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Rabins’ sister, was estranged from her sister and, as the trial court noted, it

was not clear how her testimony could have benefitted the defense.     Id.

       As the Commonwealth observes, Ms. Mendel passed away before trial

but her husband was available to testify and did testify concerning Ms.

Rabins’ estrangement from her family.            Commonwealth Brief at 21.

“Therefore, even if the absence of Ronnie [Mendel] could conceivably be

considered as prejudicial to the defense, the presence, availability and

testimony of [her husband] adequately covered that issue as demonstrated

by the transcript.” Id.

       We agree with the trial court’s conclusion that Appellant did not suffer

any prejudice as a result of any pre-arrest delay.6 Appellant is not entitled

to relief on this issue.

       In her third issue, Appellant contends the trial court erred by denying

her request to sever her trial from that of her husband.             Appellant

acknowledges that “[t]he decision to grant or deny a severance rests in the

sound discretion of the trial court.” Appellant’s Brief at 23. However, she

argues that separate trials should have been granted in accordance with

____________________________________________


6
  Even if Appellant successfully carried her burden to show prejudice, the
Commonwealth provided a reasonable basis for the delay. As the trial court
explained, “[T]he Commonwealth had a reasonable basis in continuing to
investigate the circumstances of Barbara Rabins’ death and that part of the
delay after the gathering of Barbara Rabins’ medical records was caused by
the use of the grand jury to pursue the investigation.” Pre-Trial Opinion,
6/20/14, at 12.



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Pa.R.Crim.P. 583, which provides that the court may order separate trials if

it appears that any party may be prejudiced by the defendants being tried

together. She suggests that prejudice existed here in light of the fact she

and her co-defendant were also husband and wife. She argues that Bruton

addresses the issue of one defendant’s statements implicating a co-

defendant. She also raises the issue of spousal immunity, contending that

testimony of either co-defendant is subject to spousal immunity and is

inadmissible against the other spouse.

      We disagree.    First, regarding Bruton, there were no statements by

John Tedesco that implicated Appellant. See n. 5. As to spousal immunity,

as the trial court recognized, 42 Pa.C.S.A. § 5913 provides for spousal

immunity in a criminal proceeding but with certain exceptions, one of which

is a criminal proceeding that includes a murder charge.             42 Pa.C.S.A.

§ 5913(4). Appellant has not demonstrated any prejudice resulting from the

trial court’s denial of her motion to sever, and spousal immunity does apply

to murder trials.    Moreover, as the Commonwealth notes, joint trials are

appropriate when the defendants face conspiracy charges as they did here,

and when the charges demonstrate a logical connection between the

defendants and the crimes charged.          Commonwealth Brief at 29 (citing

Commonwealth v. Paolello, 665 A.2d 439 (Pa. 1995). Finding no abuse

of discretion on the part of the trial court for denying the severance request,

we conclude that Appellant’s third issue fails for lack of merit.


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      In her fourth issue, Appellant asserts trial court error for denying her

motion to suppress the statements she gave to police because the

interrogation lasted several hours, she was in custody at the state police

barracks, and she was not advised of her Miranda rights. The trial court

rejected Appellant’s characterization of the circumstances surrounding her

statements and concluded Miranda rights were not required.

      Our standard of review of “the denial of a suppression motion is

limited to determining whether the suppression court’s factual findings are

supported by the record and whether the legal conclusions drawn from those

facts are correct.”   Commonwealth v. (Patrick Scott) Jones, 121 A.3d

524, 526 (Pa. Super. 2015) (quoting Commonwealth v. (Curtis) Jones,

988 A.2d 649, 654 (Pa. 2010)). Where the suppression court’s findings are

supported by the record, we are bound by those findings and may reverse

only if the court’s legal conclusions are erroneous. Id.

      Appellant was questioned three times. The first occasion was during

the execution of the search warrant of the Tedescos’ home.           Corporal

William Gross of the Pennsylvania State Police “escorted [Appellant and her

daughter] to the kitchen area and [Appellant] and her daughter and

[Corporal Gross] remained in the kitchen for the entire time the search

warrant was being conducted.”     Pre-Trial Opinion, 6/20/14, at 16 (quoting

notes of testimony of the suppression hearing).       During the search, the

Corporal explained to Appellant that the purpose of the search was to


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investigate questions raised by the coroner about Ms. Rabins’ death and he

asked Appellant about her relationship with Ms. Rabins. Id.

      The trial court determined that Appellant was not subjected to a

custodial investigation necessitating administration of Miranda rights.

“Specifically excluded from custodial interrogation (in the Miranda decision)

was ‘[g]eneral on-the-scene questioning as to facts surrounding a crime or

other general questioning of citizens in the fact-finding process . . . . ’” Id.

(quoting Miranda v. Arizona, 384 U.S. 436, 477 (1966)).           Because the

Corporal’s questions “appear to be the general fact-gathering questioning

excluded from the Miranda holding[,] . . . there was no custodial

interrogation in the house of the kind addressed in Miranda.” Id. at 17.

      In addition to the questioning in her kitchen, Appellant also was

questioned twice at the police barracks.      She and her husband voluntarily

arrived at the barracks and signed in as visitors in response to a state police

request that they come to answer questions. Each was interviewed by two

state troopers in separate audiotaped sessions that, for Appellant, lasted

approximately 90 minutes.       During the session, she voiced on various

occasions her understanding that she was not under arrest and was free to

leave at any time. Although she was questioned in a closed room, the door

was not locked and she was not restrained.

      At the conclusion of the interview, Appellant went to the parking lot to

wait for her husband. One of the troopers later came out to the parking lot


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and asked her to return to the barracks to answer additional questions

prompted by responses her husband gave during his interview.           Appellant

agreed and returned to the barracks for an additional interview that lasted

approximately ten minutes. She again acknowledged her understanding that

she was free to leave during the questioning.

      The trial court, after reviewing the audiotapes of the two interviews,

concluded that Appellant was subject to interrogation but it was not a

custodial interrogation requiring the administration of Miranda warnings.

Pre-Trial Opinion, 6/20/14, at 17-18. As the trial court recognized, “The test

for determining whether a suspect is in custody is whether the suspect is

physically deprived of his freedom in any significant way or is placed in a

situation in which he reasonable believes that his freedom of action or

movement    is   restricted.”   Id.    at   15   (quoting   Commonwealth      v.

Eichlinger, 915 A.2d 1122, 1133-34 (Pa. 2007)).             Also, “[a] person is

considered to be in custody for purposes of Miranda when the officer’s show

of authority leads the person to believe that she was not free to decline the

officer’s request, or otherwise terminate the encounter.”          Id. (quoting

Commonwealth v. Page, 965 A.2d 1212, 1218 (Pa. Super. 2009)

(additional citation omitted)). We find the trial court’s factual findings are

supported by the record and that its legal conclusions are correct.

Therefore, we shall not disturb the trial court’s ruling denying Appellant’s

motion to suppress. Appellant’s fourth issue fails.


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      Appellant’s fifth through eighth issues allege trial court error relating

to evidentiary issues. As such, our standard of review is abuse of discretion.

Commonwealth v. Watson, 945 A.2d 174, 176 (Pa. Super. 2008);

Commonwealth v. G.D.M., Sr., 926 A.2d 984, 986 (Pa. Super 2007).

      In her fifth issue, Appellant asserts trial court error for allowing Nurse

Blanchard-Doran to testify as an expert witness because the Commonwealth

failed to identify her as an expert witness, because no report was prepared,

and because Appellant’s expert was unable to view her testimony. As this

Court recognized in Watson, “Our standard of review in cases involving the

admission of expert testimony is broad: ‘Generally speaking, the admission

of expert testimony is a matter left largely to the discretion of the trial court,

and its rulings thereon will not be reversed absent an abuse of discretion.”

Watson, 945 A.2d at 176 (quoting Commonwealth v. Brown, 596 A.2d

840, 842 (Pa. Super. 1991) (additional citations omitted)).         “An expert’s

testimony is admissible when it is based on facts of record and will not cause

confusion or prejudice.” Id. (citing Brown, supra).

      Ms. Blanchard-Doran was the director of nursing at a facility where

Appellant’s victim was treated a year prior to her death.         As mentioned

above, Ms. Rabins left the facility against medical advice at the insistence of

Appellant and her husband. The witness offered testimony concerning Ms.

Rabins’ stay at the facility, her condition, and her discharge against medical

advice.   When the witness offered testimony regarding the staging of


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wounds, counsel for Appellant objected based on the lack of an expert

report. The trial court permitted the prosecution to voir dire the witness and

afforded defense counsel the opportunity to question the witness on her

qualifications.   The witness was then received as an expert in geriatric

nursing.

      As the trial court recognized, Pa.R.E. 702 (Testimony by Expert

Witnesses) provides that a witness qualified by knowledge, skill, training or

education may offer opinion testimony if the expert’s knowledge is beyond

that of the average layperson, the expert’s specialized knowledge will aid the

trier of fact to understand the evidence, and the expert’s methodology is

accepted in the relevant field. “Determining whether a witness may testify

as an expert is a matter within the sound discretion of the trial court, whose

decision will only be reversed for a clear abuse of discretion.” Post-Sentence

Opinion, 3/3/16, at 28 (quoting Yacoub v. Lehigh Valley Medical

Associates, P.C., 805 A.2d 579, 591 (Pa. Super. 2002)).

      The trial court concluded that Ms. Blanchard-Doran had the requisite

knowledge and skills to qualify as an expert under Pa.R.E. 702, noting:

      [Ms. Blanchard-Doran’s] expertise in geriatric nursing qualified
      her to discuss pressure ulcers and wounds and her knowledge of
      them as they relate to geriatric patients. She is not required to
      be admitted as an expert in pressure ulcers and their staging
      specifically, as [Appellant] contends in her brief, to be qualified
      to discuss pressure ulcers in geriatric patients.

Id. at 29. Further, the Commonwealth did not violate any disclosure rules

because the witness did not generate or introduce an expert report.         Id.

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Moreover, the defense was on notice of the prosecution’s intention to offer

an expert in pressure ulcers, even if the expectation was that a different

witness would offer that testimony. Consequently, Appellant did not suffer

any prejudice. Finding no abuse of discretion in the trial court’s admission of

Ms. Blanchard-Doran’s expert testimony, we reject Appellant’s fifth issue for

lack of merit.

      In her sixth issue, Appellant argues that the trial court erred by

permitting Jillian Viscardi to testify without notice to the defense of the

intent to call her as a witness. Appellant also complains that the prosecutor

failed to disclose that he interviewed Ms. Viscardi in the course of his trial

preparation and that, as a result, there was no written statement from the

witness. Again, our standard of review is abuse of discretion.

      When Ms. Viscardi was called to testify, counsel for Appellant asked for

an offer of proof.   The prosecutor explained that Ms. Viscardi was a high

school friend of one of the Tedescos’ daughters and would testify about the

Tedescos’ home and who was living there.             Counsel then objected,

suggesting that there must have been a statement taken from the witness.

The prosecutor explained that Ms. Viscardi was identified by another of the

daughter’s friends in July 2015 from a photograph and was interviewed by

the prosecutor himself in the course of his trial preparation. No statement

was prepared. In response to the trial court’s question concerning disclosure

of the witness, the prosecutor explained that notice of the witness was not


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required under the discovery rule.      The trial court overruled the objection

and permitted the testimony.

      “The Rules of Criminal Procedure require only that the Commonwealth

disclose the identity of eyewitnesses.” Commonwealth v. Dietterick, 631

A.2d 1347, 1351 (Pa. Super. 1993) (citation omitted), appeal denied, 645

A.2d 1312 (Pa. 1994). Ms. Viscardi was not an eyewitness to any criminal

activity. “The Commonwealth is under no obligation to disclose the names

of all its witnesses to the defendant.” Id. (citations omitted). We find no

abuse of discretion in the trial court’s ruling.

      In her seventh issue, Appellant asserts trial court error for permitting

Corporal Gross to offer cumulative testimony regarding the condition of Ms.

Rabins’ body. Appellant contends that testimony concerning the condition of

the body had already been offered by Dr. Land and Coroner Cindy Skrzypek,

both of whom were present at the autopsy, as well as E.M.T. Mackenzie

Joyce who testified as to the condition of the body when Ms. Rabins was

pronounced dead.      Appellant’s Brief at 46-47.    She argues that Corporal

Gross’s testimony was designed to elicit an emotional response from the jury

and that the testimony had little probative value but significant prejudicial

effect due to the Corporal’s status as lead investigator in the case. Id. at

47-48.

      The trial court explained its decision to allow the testimony, noting:

      The testimony of Corporal Gross about the state of Ms. Rabins[’]
      body as he observed it at the autopsy was limited. He testified

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      that Ms. Rabins was dressed in a t-shirt and adult diaper with
      feces and urine in it. He did not testify further as to the state of
      her body. Although testimony regarding the state of Ms. Rabins’
      body was previously elicited, albeit in a much more graphic
      fashion, Corporal Gross’ testimony regarding his observations at
      the autopsy was necessary to explain why he then initiated the
      investigation into Ms. Rabins[’] death. The probative value of
      this very limited testimony was not outweighed by needlessly
      presenting cumulative evidence. Further [Appellant] has failed
      to show how Corporal Gross’ limited testimony about the state of
      Ms. Rabins’ body prejudiced her.

Post-Sentence Opinion, 3/3/16, at 40. We find no abuse of discretion on the

part of the trial court for permitting the Corporal to provide limited

testimony concerning his observations and the role his observations played

in the initiation his investigation into Ms. Rabins’ death. Appellant’s seventh

issue does not afford any basis for relief.

      In her eighth issue, Appellant argues that the trial court erred in

allowing the admission of documents and items into evidence that had not

been provided in discovery.    Appellant      contends   that   several   pieces   of

evidence were admitted over her counsel’s objection despite the fact the

Commonwealth had not disclosed the existence of the items. She claims her

counsel could not have discovered the evidence through the exercise of due

diligence.   Appellant’s Brief at 49.    Appellant suggests that the amount of

evidence not disclosed was not a coincidence but rather reflected that the

Commonwealth attempted to ambush Appellant at trial. Id.

      As the trial court recognized, Pa.R.Crim.P. 573 (Pretrial Discovery and

Inspection) “enumerates items that must be disclosed upon the defendant’s


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request if they are material to the case, and provides that when applicable,

the Commonwealth shall ‘permit the defendant’s attorney to inspect and

copy or photograph such items.’”     Post-Sentence Opinion, 3/3/16, at 30

(quoting Pa.R.Crim.P. 573(B)(1)).      Items to be disclosed include “any

tangible objects, including documents, photographs, fingerprints, or other

tangible evidence.” Pa.R.Crim.P. 573(B)(1)(f).

     The joint trials of Appellant and her husband began on August 5, 2015,

and concluded on August 14, 2015.      During the August 7 proceedings, in

response to objections that copies of the items comprising Exhibits 37 and

39 were not provided to the defense, the prosecution argued that

Commonwealth property records disclosed to Appellant and her husband

revealed that there were “miscellaneous documents” in the Commonwealth’s

possession. Counsel for John Tedesco argued there was an assumption the

Commonwealth would copy and provide all such documents.       The trial court

determined the defense was aware of the documents and that those

documents were available for inspection. Consequently, the trial court ruled

that the Commonwealth could introduce Exhibits 37 and 39.           Defense

counsel could then review the documents to determine whether there were

any evidentiary objections to the documents before the trial court would

admit them. Defense counsel agreed to that proposed process.

     At the conclusion of the day’s proceedings, the trial court dismissed

the jury and then discussed the challenged documents with counsel.


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Counsel for John Tedesco advised the trial court that he did not have a

problem with the documents other than the way they were listed for

discovery.   He indicated he had no evidentiary objections to any of the

documents. Notes of Testimony, 8/7/15, at 237. Appellant’s counsel then

stated, “I agree.” Id. The trial court admitted the documents. Id. at 238.

Appellant’s counsel did not lodge an objection. Therefore, the issue was not

preserved for appeal. Even if the issue were preserved, we would find no

abuse of discretion on the part of the trial court.       As the trial court

explained, “Rule 573 was not violated as the Commonwealth provided a

complete list of the documents and items in their possession to the defense

and offered them for inspection and copying.”        Post-Sentence Opinion,

3/3/16, at 34. Because the Commonwealth complied with Rule 573, the trial

court did not abuse its discretion by admitting the evidence. We shall not

disturb that ruling. See Commonwealth v. Antidormi, 84 A.3d 736, 749

(Pa. Super. 2014) (decision to admit evidence “shall be reversed only upon a

showing that the trial court abused its discretion in determining whether

evidence should be admitted”) (citation omitted).

     Appellant also complains that the trial court admitted documents from

Ms. Rabins’ trust administrator. However, as the trial court explained:

     The trust documents were documents that . . . the administrator
     of the trust[] had brought with her and given to the
     Commonwealth upon her arrival.         They were not in the
     possession of the Commonwealth to give to the defense during
     pre-trial discovery and were turned over to the defense as soon
     as they were in the Commonwealth’s possession. [Counsel] for

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      the Commonwealth stated that “[a]t the earliest opportunity I
      put both on counsel table prior to 8:30 this morning. As soon as
      I saw both counsel, I explained what it was and when I got it.”

Post-Sentence Opinion, 3/3/16, at 34 (references to notes of testimony

omitted).   “The Commonwealth ‘does not violate discovery rules where it

does not provide defendant with evidence that it does not possess and of

which it is unaware during pretrial discovery.’”       Id. at 34-35 (quoting

Commonwealth v. Flood, 627 A.2d 1193, 1200-01 (Pa. Super. 1993)).

      We find no abuse of discretion on the part of the trial court with

respect to the “miscellaneous documents” that were admitted. Likewise, we

find no abuse of discretion for admitting documents provided by the trust

administrator that were given to Appellant’s counsel as soon as practicable.

Appellant’s eighth issue fails for lack of merit.

      In her ninth issue, Appellant argues trial court error for denying her

motion for a change of venue based on overwhelming negative pre-trial

publicity. Our Supreme Court has explained:

      A trial court’s decision on a defendant’s motion for a change of
      trial venue based on the claimed existence of pretrial publicity
      prejudicial to his or her right to trial before an impartial jury is
      one vested within its sound discretion, and a trial court’s decision
      to deny such a motion will not be overturned by this Court on
      appeal, unless the record evidences that the trial court has
      abused its discretion in making its ruling. Commonwealth v.
      Weiss, 565 Pa. 504, 514, 776 A.2d 958, 964 (2001). We have
      recognized that “the trial court is in the best position to assess
      the atmosphere of the community and to judge the necessity of
      any requested change.” Commonwealth v. Tharp, 574 Pa.
      202, 219, 830 A.2d 519, 529 (2003). In reviewing the trial
      court decision not to grant a change of venue the focus of our
      inquiry is to determine whether any juror formed a fixed opinion

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     of the defendant’s guilt or innocence due to the pretrial publicity.
     Commonwealth v. Drumheller, 570 Pa. 117, 132, 808 A.2d
     893, 902 (2002).

     A change in venue is compelled whenever a trial court concludes
     a fair and impartial jury cannot be selected from the residents of
     the county where the crime occurred. Weiss, at 514–15, 776
     A.2d at 964. As a general rule, for a defendant to be entitled to
     a change of venue because of pretrial publicity, he or she must
     show that the publicity caused actual prejudice by preventing the
     empanelling of an impartial jury.            Commonwealth v.
     Robinson, 581 Pa. 154, 195, 864 A.2d 460, 484 (2004). The
     mere existence of pretrial publicity alone, however, does not
     constitute actual prejudice. Simply because prospective jurors
     may have heard about a case through media reports does not
     render them incapable of jury service, since, in today’s
     “information age,” where news of community events are
     disseminated virtually instantaneously by an ever multiplying
     array of delivery methods, it would be difficult to find 12 jurors
     who do not at least have some knowledge of the facts of an
     important and tragic incident like this one.

Commonwealth v. Briggs, 12 A.3d 291, 313 (Pa. 2011) (citations

omitted).

     Appellant’s request for a change of venue was a component of her

omnibus pre-trial motion argued on February 27, 2014.          The trial court

denied the motion, noting that media coverage documented by Appellant

was, for the most part, coverage at the time of Appellant’s arrest in July

2013 or her preliminary hearing in September 2013. Only one newspaper

article—published on February 4, 2014 when the case was listed for trial—

post-dated the preliminary hearing.      “[A] change of venue will not be

required where there has been sufficient time between publication and trial




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for the prejudice to dissipate.” Pre-Trial Opinion, 6/20/14, at 13 (citations

omitted).

      As the trial court explained, significant time had elapsed since the

coverage took place.    Although the trial court denied the request for a

change of venue, the court indicated that Appellant would “be given the

opportunity of individual voir dire at the time of jury selection.         A

determination can be made at that time whether it is possible to obtain an

impartial jury. The motion will be denied, with the right to renew the motion

if necessary during jury selection.” Pre-Trial Opinion, 6/20/14, at 14.

      Although the trial testimony was transcribed, there is no transcription

of the notes of testimony from jury selection.    Appellant does not suggest

that she renewed her motion during jury selection.        The Commonwealth

indicates:

      The issue did not appear to come up in any meaningful way
      during jury selection. Certainly counsel for the Appellant would
      have possessed unlimited challenges for cause. If the jury pool
      was tainted by a mass of adverse or negative pretrial publicity
      one would expect there to be a record made of the same.
      However, there is no such record. There is no basis in the
      record to grant the relief requested by Appellant.

Commonwealth Brief at 54-55.       We agree.     Appellant’s change of venue

challenge fails.

      In her tenth issue, Appellant contends the trial court erred and abused

its discretion by sentencing her at the upper end of the standard range of

the sentencing guidelines and failed to consider mitigating factors raised by


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Appellant at the sentencing hearing. As such, Appellant presents a challenge

to the discretionary aspects of sentencing and her brief must include a

concise statement of the reasons relied upon for allowance of appeal in

accordance with Pa.R.A.P. 2119(f).   However, Appellant instead includes a

statement of the scope and standard of review for a challenge to

discretionary aspects of sentencing and refers to Pa.R.A.P. 3518, a rule

rescinded in 1999.   Appellant’s Brief at 2.   She proceeds to note that a

sentence will not be reversed absent an abuse of discretion; that to

constitute an abuse of discretion, a sentence must either exceed statutory

limits or be manifestly excessive; that an appellant must raise a substantial

question as to the appropriateness of the sentence; and that an appellant

must demonstrate that the trial court’s actions are inconsistent with the

sentencing code or contrary to fundamental norms. Id. (citations omitted).

However, Appellant’s statement does not even suggest a question, let alone

a substantial question.   Therefore, Appellant has not complied with Rule

2119(f) and has not provided any basis for this Court to entertain a

challenge to the discretionary aspects of her sentence.       However, the

Commonwealth did not object to Appellant’s misstep. Therefore, we will not

find the issue waived. See Commonwealth v. Krum, 533 A.2d 134, 138-

39 (Pa. Super. 1987) (en banc) (an appellant’s failure to comply with Rule

2119(f) may be waived if the Commonwealth fails to object to the defect).




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      Despite surviving waiver, Appellant’s issue nevertheless fails. As this

Court has recognized, “[T]he appellant must raise a substantial question as

to the appropriateness of the sentence, which would permit us to accept the

appeal as to this issue.” Commonwealth v. Kimbrough, 872 A.2d 1244,

1262 (Pa. Super. 2005) (citation omitted). “Whether a substantial question

has been raised that a sentence is inappropriate under the Sentencing Code

must be evaluated on a case-by-case basis.” Id. at 1263 (citation omitted).

As this Court reiterated in Kimbrough, “A substantial question exists where

the brief sets forth a colorable argument that the sentence violates a

particular provision of the Sentencing Code or is contrary to the fundamental

norms underlying the sentencing scheme.”    Id. (citation omitted).

      Appellant contends her sentence was at the upper end of the standard

range.    However, “[w]hen the sentence is within the range prescribed by

statute, a challenge to the maximum sentence imposed does not set forth a

substantial question as to the appropriateness of the sentence under the

guidelines.”   Id. (quoting Commonwealth v. Brown, 587 A.2d 4, 6 (Pa.

Super. 1991)).    Appellant has failed to present a substantial question for

review.

      With respect to Appellant’s assertion that the trial court did not

consider mitigating factors, we note that when the sentencing court has the

benefit of a pre-sentence report, “it shall be presumed that that sentencing

judge was aware of the relevant information regarding the defendant’s


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character and weighed those considerations along with the mitigating

statutory   factors.”   Post-Sentence    Opinion,   3/3/16    at   22   (quoting

Commonwealth v. Bruner, 564 A.2d 1277, 1289 (Pa. Super. 1989)

(additional citation omitted)).   Here, the trial court acknowledged receipt

and review of the pre-sentence investigation during Appellant’s sentencing.

Id. (citing Notes of Testimony, Sentencing, 10/26/15, at 2).        As the trial

court explained:

      [T]he sentence for Murder in the Third Degree is within the
      guideline range and is therefore presumptively reasonable. In
      sentencing [Appellant], the [c]ourt review[ed] the PSI, letters
      from the victim’s family, letters from [Appellant’s] family and
      friends, and fashioned an aggregate sentence based on the
      evidence presented at trial and the jury’s ultimate finding of guilt
      as to all charges. Because of the torture and abuse suffered by
      the Victim, who was mentally handicapped, at the hands of
      [Appellant and her husband] for their own gain, the consecutive
      sentences did not result in an excessive aggregate sentence.

Id.   We agree. Finding no abuse of discretion on the part of the trial court,

Appellant’s challenge to her sentence fails.

      In her eleventh and final issue, Appellant challenges the sufficiency of

the evidence supporting her conviction for tampering with evidence.           A

challenge to sufficiency of evidence presents a question of law subject to

plenary review. Commonwealth v. Jones, 904 A.2d 24 (Pa. Super. 2006)

(citation omitted). As this Court noted in Jones:

      In reviewing a sufficiency challenge, we must determine whether
      the evidence at trial, and all reasonable inferences derived
      therefrom, when viewed in the light most favorable to the
      Commonwealth as verdict[-]winner, are sufficient to establish all
      elements of the offense beyond a reasonable doubt.

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J-A30034-16



      To establish the offense of tampering with evidence, the
      Commonwealth must prove three interrelated elements: (1) the
      defendant knew that an official proceeding or investigation was
      pending; (2) the defendant altered, destroyed, concealed, or
      removed an item; and (3) the defendant did so with the intent to
      impair the verity or availability of the item to the proceeding or
      investigation. Commonwealth v. Morales, 447 Pa. Super.
      491, 669 A.2d 1003, 1005 (1996) (citing 18 Pa.C.S.A.
      § 4910(1)).

Id. at 26 (quotations, citations and footnote omitted).

      The trial court concluded that, viewing the evidence in the light most

favorable to the Commonwealth as the verdict winner, “the accumulation of

circumstantial evidence in this case was strong enough for a jury to find that

Ms. Rabins did not live or die at the Tedesco home and to make the

inference that the Tedescos tampered with physical evidence believing an

investigation was forthcoming.” Post-Sentence Opinion, 3/3/16, at 14. The

trial court proceeded to summarize the evidence supporting the tampering

conviction. Id. at 14-16. That evidence included a lease reflecting that Ms.

Rabins lived in an apartment with Tom Miller; that emergency personnel

were called to the apartment to assist Ms. Rabins on several occasions; that

the landlord indicated Ms. Rabins lived there; that mail postmarked to Ms.

Rabins was found in the apartment; and that the coroner and emergency

personnel responding to the Tedescos’ home found the immaculate state of

the Tedescos’ living room incompatible with the Tedescos’ statements that

Ms. Rabins primarily lived in the living room and died there.     In addition,

witnesses testified that they never saw Ms. Rabins or any medical equipment

                                    - 26 -
J-A30034-16


in the Tedesco home and never heard prior to the night Ms. Rabins died that

an elderly woman was living there.

    The accumulation of this evidence was such that a jury could find
    beyond a reasonable doubt that Ms. Rabins was living at the
    apartment on Route 115 and not the Tedesco home, and that the
    Tedescos tampered with physical evidence regarding her
    residence and place of death, believing an investigation into her
    death was about to be begin.

Id. at 16.    We agree.    Viewing the evidence and reasonable inferences

therefrom in a light most favorable to the Commonwealth, we find the

evidence was sufficient to support Appellant’s conviction of tampering with

evidence. Appellant’s sufficiency challenge fails.

      Judgment of sentence affirmed. In the event of further proceedings,

to the extent necessary for review, the parties shall attach to their filings

copies of the trial court’s June 20, 2014 Pre-Trial Opinion and/or its March 3,

2016 Post-Sentence Opinion.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/20/2017




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