J-A26019-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

BRENDA SUE SMITH

                            Appellant                  No. 1452 MDA 2012


            Appeal from the Judgment of Sentence February 9, 2012
                In the Court of Common Pleas of Juniata County
              Criminal Division at No(s): CP-34-CR-0000190-2010


BEFORE: BOWES, J., MUNDY, J., and JENKINS, J.

MEMORANDUM BY MUNDY, J.:                          FILED DECEMBER 15, 2014

        Appellant, Brenda Sue Smith, appeals from the February 9, 2012

judgment of sentence, imposing life imprisonment without possibility of

parole after a jury found her guilty of the first-degree murder of her son-in-

law (Victim).1 After careful review, we affirm.

        The trial court summarized the factual history of this case as follows.

                     Appellant was related to [V]ictim through her
              daughter, Carolyn Hockenberry.          Carolyn and
              [V]ictim were married [and] had three children.
              Their relationship, according to Appellant, was quite
              turbulent and [V]ictim often abused Carolyn.

                     At the time of the murder, the Hockenberrys
              lived in Juniata County, Pennsylvania, and Appellant
              lived in the American South-West.        Prior to a
              scheduled visit, Appellant’s husband purchased the
              murder weapon and performed an internet search to
____________________________________________
1
    18 Pa.C.S.A. § 2502(a).
J-A26019-14


          learn how to properly transport a weapon on an
          airplane. Ultimately, Appellant brought the weapon
          to Pennsylvania and kept it hidden in her suitcase.

                 On the night of the murder, [September 15,
          2010,] Appellant, Victim, Carolyn and the kids were
          all at home. Appellant and Victim got into a verbal
          altercation. Carolyn took the kids into the back
          bedroom where she sat with them and attempted to
          drown out the shouting by turning up the volume on
          the television set. During this altercation, Victim
          may have hit Appellant with a TV tray. Appellant
          retrieved her gun and loaded it, then instructed
          Carolyn to take the kids outside and get into the
          family’s automobile. Appellant covered the gun with
          a towel, approached [V]ictim, and put a bullet in his
          head.

                 Appellant wiped the gun clean, and put both
          the towel and gun in [V]ictim’s lap. She then joined
          Carolyn and the kids in the van and drove to the
          local Pennsylvania State Police barracks[, arriving at
          8:15 p.m.,] to report the alleged earlier violence
          Victim inflicted upon Appellant, that is, the alleged
          assault with the TV tray. Appellant was taken to
          Lewistown Hospital so that she may have a bruise on
          her arm treated. It was while Appellant was at the
          hospital that Troopers investigated and found
          [V]ictim dead.

                Appellant and Carolyn were informed of the
          Troopers discovery prior to leaving the hospital. As
          is standard in any death investigation, because
          Appellant and Carolyn admitted to seeing Victim last,
          Troopers asked them to come to the barracks to be
          interviewed. Appellant [accepted a] ride with the
          Troopers[]. She was not searched nor was she
          handcuffed, and upon arrival, she sat in the public
          lobby.

                Appellant was asked to accompany a Trooper
          to an interview room. She was not guarded, and the
          door remained open. First, she explained that she
          and [V]ictim struggled for the gun and it accidentally

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            discharged.    The Trooper asked Appellant to
            elaborate, and she was unable to do so. She then
            admitted to walking up behind [V]ictim and shooting
            him in the head.

                  At this point the interview was terminated and
            the Trooper left the room. He soon returned, and
            read    Appellant    her   Miranda   rights.      She
            acknowledged that she understood her rights, and
            signed a waiver form. It was then that she provided
            a written statement admitting to the recent purchase
            of the weapon, her intention to shoot [V]ictim so
            that he would “leave [her] daughter alone,” and
            covering the weapon with the towel so that he would
            not see it. She further explains in her statement
            that [Victim] was sitting in a computer chair when
            she shot him, but says that she pulled the trigger
            only because “I startled him and he startled me.”

Trial Court Opinion, 1/4/13, at 1-3.

      On September 16, 2010, the police charged Appellant with criminal

homicide. After a preliminary hearing held October 14, 2010, the case was

bound over to the Court of Common Pleas of Juniata County. On November

30, 2010, Appellant filed an omnibus pretrial motion, including a motion to

suppress and a motion for change of venue or venire.       In her motion to

suppress, Appellant sought to exclude inculpatory statements made by her,

allegedly obtained in violation of her constitutional rights.       Appellant’s

Omnibus Pretrial Motion, 11/30/10, at 1-2.     In her motion for change of

venue or venire, Appellant averred that local media coverage of the case

precluded the possibility of obtaining a fair and impartial jury in Juniata

County. Id. at 2-3. A hearing on Appellant’s omnibus pretrial motion was




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held on January 11, 2011.2 Following the hearing, the trial court issued an

order taking the motion for change of venue or venire under advisement in

anticipation of “stipulations concerning exposure of the stories, as well as

the content of the stories.” Trial Court Order, 1/11/11, at 1. In a separate

order that same day, the trial court deferred a decision on the suppression

motion pending its review of the preliminary hearing transcript.3

       On February 8, 2011, the trial court filed an order and memorandum,

denying Appellant’s suppression motion. Also on February 8, 2011, the trial

court related the following in its memorandum accompanying its order

denying Appellant’s motion for change of venue or venire.

                     [W]e are not satisfied that, on the basis of the
              information brought to our attention during the
              course of the Pre-Trial Hearing and also on the basis
              of information brought to our attention by attempted
              stipulation concerning circulation of newsprint and
              radio media in Juniata County area, that an Order
              changing venue, at this time would be appropriate.

                     Obviously, the issue of venue change is always
              deemed continuing and can be addressed pretrial
              upon further information being developed or,
              certainly, at a time when difficulty in empanelling a
              jury is encountered.

Trial Court Memorandum, 2/8/11, at 1.


____________________________________________
2
 No transcript of this proceeding is contained in the certified record or in
Appellant’s reproduced record.
3
 The preliminary hearing transcript is not included in the certified record or
Appellant’s reproduced record.


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       The matter proceeded to jury selection on January 23, 2012, with trial

held on January 30, 2012 to February 3, 2012.4            At the conclusion of the

trial, the jury found Appellant guilty of first-degree murder. On February 9,

2012, the trial court sentenced Appellant to life in prison. On February 21,

2012, Appellant filed an omnibus post-sentence motion raising several

issues, including those now on appeal.5          On May 17, 2012, the trial court

granted Appellant’s oral motion for a 30-day extension for decision on the

post-trial motions. See Pa.R.Crim.P. 720(B)(3)(b). On July 20, 2012, the

Juniata County Clerk of Courts entered an order notifying Appellant of the

denial of her post-sentence motions by operation of law. See Pa.R.Crim.P.

720(B)(3)(c). On August 9, 2012, Appellant filed a timely notice of appeal.6

       On appeal, Appellant raises the following issues for our consideration.

              1.    [Appellant] made both oral and written
              statements to police during a custodial interrogation
              without being advised of her rights under Miranda
              v. Arizona[, 384 U.S. 436 (1966)] and the
              Pennsylvania and United States Constitutions. The
              statements were also made involuntarily as
              [Appellant] was so emotionally and psychologically
              distraught that the confession could not have been
____________________________________________
4
 No transcript of the jury selection is contained in the certified record or in
Appellant’s reproduced record.
5
  We note that February 19, 2012 was a Sunday, and February 20, 2012 was
a court holiday. When calculating a filing period, weekends and holidays are
excluded from this computation. 1 Pa.C.S.A. § 1908. Therefore, Appellant
had until February 21, 2012 to timely file any post-trial motion.
6
  Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.


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              voluntary.    Did the trial court commit an error of
              law in failing to suppress these statements and
              allowing their presentation at trial?

              2.     On September 17, 2010, [Appellant’s] husband
              visited her at the Mifflin County Correctional Facility.
              Their conversation was recorded and the recording
              was admitted as evidence and played for the jury at
              trial in violation of spousal privilege. Did the trial
              court commit an error of law in allowing the
              admission of this extremely prejudicial and protected
              evidence?

              3.   The alleged crime occurred in a small, rural
              town in Pennsylvania and received extensive press
              coverage. Did the trial court commit an error of law
              in denying [Appellant’s] request for Change of
              Venue?

Appellant’s Brief at 5-6.

      Appellant first contests the trial court’s refusal to suppress her

inculpatory oral and written statements that she claims were the product of

custodial interrogation by the police, performed in violation of her Fifth and

Fourteenth Amendment rights. Id. at 26. When reviewing a challenge to a

trial court’s denial of a suppression motion, we observe the following

principles.

                    Our standard of review in addressing a
              challenge to 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.      Because the Commonwealth
              prevailed before the suppression court, we may
              consider only the evidence of the Commonwealth
              and so much of the evidence for the defense as
              remains uncontradicted when read in the context of
              the record as a whole.       Where the suppression

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              court’s factual findings are supported by the record,
              we are bound by these findings and may reverse
              only if the court’s legal conclusions are erroneous.
              The suppression court’s legal conclusions are not
              binding on an appellate court, whose duty it is to
              determine if the suppression court properly applied
              the law to the facts. Thus, the conclusions of law of
              the courts below are subject to our plenary review.

Commonwealth v. Ranson, --- A.3d ---, 2014 WL 5018477 at *2 (Pa.

Super. 2014), quoting Commonwealth v. Jones, 988 A.2d 649, 654 (Pa.

2010), cert. denied, 131 S. Ct. 110, 178 (2010) (citations, quotations and

ellipses omitted).7

       Preliminarily, we note that the certified record does not contain a

transcript of the January 11, 2011 hearing on Appellant’s omnibus pre-trial

motion, including Appellant’s motion to suppress.     “Our law is unequivocal

that the responsibility rests upon the appellant to ensure that the record

certified on appeal is complete in the sense that it contains all of the

____________________________________________
7
   Our Supreme Court has recently clarified our scope of review when
considering a challenge to a trial court’s suppression ruling as it relates to
“the extent of the record that the appellate court consults when conducting
that review.” In re L.J., 79 A.3d 1073, 1080, (Pa. 2013). The Supreme
Court held that such review is limited to the suppression hearing record, and
“it is inappropriate to consider trial evidence as a matter of course, because
it is simply not part of the suppression record, absent a finding that such
evidence was unavailable during the suppression hearing.” Id. at 1085.
Because prior cases held that a reviewing court could consider the trial
record in addition to the suppression record, the Supreme Court determined
that the more limited scope announced in In re L.J. would apply
prospectively to cases where the suppression hearing occurred after October
30, 2013. Id. at 1088-1089. Instantly, the subject suppression hearing
was held on January 11, 2011. Accordingly, our scope of review includes the
trial testimony in this case.


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materials     necessary     for   the    reviewing    court   to   perform   its   duty.”

Commonwealth v. Preston, 904 A.2d 1, 7 (Pa. Super. 2006) (en banc)

(citation omitted), appeal denied, 916 A.2d 632 (Pa. 2007). The transcript

is not included in the clerk of courts’ list of record documents supplied to the

parties.    See Pa.R.A.P. 1911, 1931(d).             Appellant has made no effort to

assure inclusion of the missing transcript. See id. at 1926(b). “When the

appellant … fails to conform to the requirements of Rule 1911, any claims

that cannot be resolved in the absence of the necessary transcript or

transcripts must be deemed waived for the purpose of appellate review.”

Preston, supra. Because our scope of review for Appellant’s suppression

issue in this case includes the trial transcript, which is extensively cited by

the parties, we decline to find waiver on this issue.

         Appellant specifically contends the police subjected her to a custodial

interrogation     without     first     providing    her   with    Miranda    warnings.

Appellant’s Brief at 29. Appellant concedes that she was Mirandized prior

to giving her written statement but claims the original taint precludes

admission of the written statement as well. Id. The trial court determined

that Appellant was not subjected to custodial interrogation “until after she

admitted to walking up behind [V]ictim and shooting him in the head,” after

which she was advised of her Miranda rights. Trial Court Opinion, 1/4/13,

at 10.




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     “In Miranda [], the United States Supreme Court declared that an

accused has a Fifth and Fourteenth Amendment right to have counsel

present during custodial interrogation, so as to ensure that the defendant’s

right against compulsory self-incrimination is protected.” Commonwealth

v. Martin, --- A.3d ---, 2014 WL 4745782, *14 (Pa. 2014).

           The principles surrounding Miranda warnings are []
           well settled. The prosecution may not use
           statements stemming from a custodial interrogation
           of a defendant unless it demonstrates that he was
           apprised of his right against self-incrimination and
           his right to counsel. Thus, Miranda warnings are
           necessary any time a defendant is subject to a
           custodial interrogation.      As the United States
           Supreme Court explained, the Miranda safeguards
           come into play whenever a person in custody is
           subjected to either express questioning or its
           functional equivalent.      Moreover, in evaluating
           whether Miranda warnings were necessary, a court
           must consider the totality of the circumstances.

Commonwealth v. Gaul, 912 A.2d 252, 255 (Pa. 2006) (internal quotation

marks and citations omitted), cert. denied, 552 U.S. 939 (2007).

                 The law is clear that Miranda is not implicated
           unless the individual is in custody and subjected to
           interrogation.

                  Police detentions only become custodial when,
           under the totality of the circumstances, the
           conditions and/or duration of the detention become
           so coercive as to constitute the functional equivalent
           of formal arrest … [T]he test focuses on whether the
           individual being interrogated reasonably believes his
           freedom of action is being restricted.




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Commonwealth v. Snyder, 60 A.3d 165, 170 (Pa. Super. 2013) (internal

quotation marks and citations omitted, emphasis in original), appeal denied,

70 A.3d 811 (Pa. 2013).

                  The factors a court utilizes to determine, under
            the totality of the circumstances, whether a
            detention has become so coercive as to constitute
            the functional equivalent of arrest include: the basis
            for the detention; its length; its location; whether
            the suspect was transported against his or her will,
            how far, and why; whether restraints were used;
            whether the law enforcement officer showed,
            threatened or used force; and the investigative
            methods employed to confirm or dispel suspicions.
            The fact that a police investigation has focused on a
            particular individual does not automatically trigger
            “custody,” thus requiring Miranda warnings.

Commonwealth v. Baker, 24 A.3d 1006, 1019-1020 (Pa. Super. 2011),

quoting Commonwealth v. Mannion, 725 A.2d 196, 200 (Pa. Super. 1999)

(citations omitted), affirmed, 78 A.3d 1044 (Pa. 2013).

      Instantly, contrary to the trial court’s finding, Appellant asserts the

totality of the circumstances reveal she was subjected to a custodial

interrogation. Appellant’s Brief at 28.

            Appellant was clearly the object of an investigation
            which she was the focus. The officers wanted to
            question her because she was the last person to see
            [Victim] alive. There was nobody else that they
            were investigating.     The investigation into how
            [Victim] died (suicide vs. homicide) focused on only
            two people: Carolyn and [Appellant]. The police
            never considered Carolyn a suspect; that only leaves
            one other person to investigate – [Appellant].




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Id.   Appellant further argues the following additional facts warrant a legal

conclusion that Appellant’s encounter with the police was custodial and

coercive. Appellant was advised of Victim’s death while she was leaving the

hospital where she had been examined for injuries she attributed to an

attack from Victim.    Id.   The police transported Appellant to the police

station in a police vehicle. Id. at 28-29. The police refused her request to

speak with her daughter before giving a statement. Id. at 28.

            If Appellant was led to believe that she couldn’t even
            speak to her own daughter until providing a
            statement to police, had nowhere else to go, was
            asked to come to the police station even before
            leaving the hospital where she was receiving
            treatment for her injuries, and was transported to
            the police station in the back of a police cruiser
            rather than in the pastor’s car with her daughter, it
            reasonably follows that Appellant would believe that
            she was not free to leave until providing a statement
            and therefore was the object of a custodial
            interrogation.

Appellant’s Brief at 29. We disagree.

      Initially, we note that “[b]eing the ‘focus’ of an investigation does not

have talismanic qualities requiring the rendition of Miranda warnings.

Rather, it is but one factor in deciding whether one is ‘in custody.’” In re

V.H., 788 A.2d 976, 981 (Pa. Super. 2001), appeal denied, 808 A.2d 573

(Pa. 2002) (citations omitted), see also Baker, supra.        Additionally, we

conclude the facts support the trial court’s determination that Appellant was

not in custody at the time she made her initial inculpatory statement.




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       Those facts, viewed in the light most favorable to the Commonwealth,

demonstrate that it was Appellant who first made contact with the police,

claiming she was the victim of an assault by her son-in-law. N.T., 1/30/12,

at 64-65. Appellant also acknowledged to the police that she heard shots

fired when leaving her daughter’s residence after the alleged assault. Id. at

67-68.     Appellant was then taken in an ambulance to the hospital for

assessment of her injuries from the assault, where police later located her

and her daughter to notify them of Victim’s death. Id. at 67, 82. The police

advised Appellant and her daughter that they would like them to talk with

the investigating officers at the police station.8        Id. at 97-98.   Appellant

agreed but indicated she was not comfortable driving herself due to her

unfamiliarity with the area. Id. at 98. She then accepted an offer by the

police to drive her. It was 11:00 p.m. when she accepted the ride.9 Id. at

83. No questioning took place while Appellant was in the police vehicle, and

she was not restrained in any way.             Id. at 83-84.   Upon arriving at the

police station, Appellant waited unattended and unconstrained in the public

lobby. Id. at 84. At 12:02 a.m., Trooper Henderson took Appellant into the

interview room to talk with her. Id. at 267. During the interview, the door

____________________________________________
8
  The officers at the hospital were not involved in the investigation of
Appellant’s assault allegation or of Victim’s death.       They were merely
performing the death notice to Victim’s next of kin. N.T., 1/30/12, at 82.
9
  Appellant’s daughter, with her children, waited for her pastor to arrive to
drive them to the police station. N.T., 1/30/12, at 98.


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to the room remained open, and Appellant was free to leave at any time.

Id.

      Initially, Appellant conceded her account of events, given at the time

she made her complaint, was not accurate.       She then provided a second

version of events, describing an accidental shooting during her struggle to

retrieve the gun from Victim, who had taken it from her luggage.       Id. at

270-271.   When asked about inconsistencies with the physical conditions

found at the scene, Appellant gave a third version, describing an accidental

shooting when Appellant tried to get the gun away from her when she

brought it into the room where he sat at the computer.       Id. at 271-272.

When asked if this version was the truth, Appellant paused and then

provided a fourth version, admitting to intentionally shooting Victim while he

was seated at the computer. Id. at 272. At this point, it was 1:40 a.m.,

and Trooper Henderson stopped the interview, advised Appellant she was

under arrest, and presented her with oral and written Miranda warnings.

Id. at 273.    Appellant executed a written waiver of those rights and

proceeded to supply Officer Henderson with a written statement.           Id.,

Commonwealth Exhibit 19.

      These facts do not portray anything close to coerciveness reaching the

functional equivalent of an arrest. See Snyder, supra. Appellant initiated

contact with the police, was not transported against her will, and was not

subjected to   displays of force, coercion, or      aggressive   investigative


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techniques.     See Baker, supra, see also Commonwealth v. Schwing,

964 A.2d 8, 12 (Pa. Super. 2008) (holding that interview at police station

where door to interview room was open, defendant was free to leave

unaccompanied, and in the absence of other indicia of coercive police

detention, defendant was not subjected to custodial interrogation) appeal

denied, 989 A.2d 916 (Pa. 2009). Accordingly, we discern no error by the

trial court in denying Appellant’s motion to suppress.10

       In her second issue, Appellant challenges the trial court’s evidentiary

ruling, permitting the Commonwealth to introduce into evidence a taped

recording of a conversation she had with her husband on September 17,

2010, while he visited her in the Mifflin County prison after her arrest.

Appellant’s Brief at 33.        We review a trial court’s evidentiary rulings in

accordance with the following standard.

____________________________________________
10
    Appellant advances an alternative argument that even if she was not
subject to custodial interrogation, her statements should nevertheless have
been suppressed “as [they] were made involuntarily.” Appellant’s Brief at
30. We deem this issue waived. Appellant’s Rule 1925(b) statement
addressed her challenge to the trial court’s suppression ruling as follows.
“The [t]rial [c]ourt committed an error of law when it admitted statements
obtained from Appellant in violation of the requirements under Miranda [].”
Appellant’s Rule 1925(b) Concise Statement of Errors Complained of on
Appeal, 9/28/12, at 3, ¶ 5.e. Nowhere in her Rule 1925(b) statement does
Appellant raise this alternative theory for suppression. Pennsylvania Rule of
Appellate Procedure 1925(b) by its text requires that statements “identify
each ruling or error that the appellant intends to challenge with sufficient
detail to identify all pertinent issues for the judge.” Pa.R.A.P. 1925(b)(4)(ii).
Any issues not raised in accordance with Rule 1925(b)(4) will be deemed
waived. Id. at 1925(b)(4)(vii). Our Supreme Court has held that Rule 1925
is a bright-line rule. Commonwealth v. Hill, 16 A.3d 484, 494 (Pa. 2011).


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                    The standard of review for a trial court’s
              evidentiary rulings is narrow. The admissibility of
              evidence is solely within the discretion of the trial
              court and will be reversed only if the trial court has
              abused its discretion. An abuse of discretion is not
              merely an error of judgment, but is rather the
              overriding or misapplication of the law, or the
              exercise     of    judgment    that   is    manifestly
              unreasonable, or the result of bias, prejudice, ill-will
              or partiality, as shown by the evidence of record.

Commonwealth v. Mendez, 74 A.3d 256, 260 (Pa. Super. 2013) (citation

omitted), appeal denied, 87 A.3d 319 (Pa. 2014).

       Instantly Appellant asserts the trial court erred in permitting the

admission of a privileged communication between spouses in the absence of

a valid waiver of the privilege.11        Appellant’s Brief at 33-34. We conclude

Appellant misconstrues the privilege.          The privilege for confidential marital

communications is codified and provides as follows.

              § 5914. Confidential communications between
              spouses

              Except as otherwise provided in this subchapter, in a
              criminal proceeding neither husband nor wife shall
              be competent or permitted to testify to confidential
              communications made by one to the other, unless
              this privilege is waived upon the trial.


____________________________________________
11
   At trial and in her Rule 1925(b) statement, Appellant raised other grounds
for her objection to the admission of the subject recording, including lack of
discovery, and violation of the Wiretapping and Electronic Surveillance
Control Act, 18 Pa.C.S.A. § 5701. N.T., 1/30/12, at 18, 21, 235; Appellant’s
Rule 1925(b) Concise Statement of Errors Complained of on Appeal,
9/28/12, at 3, ¶¶ 5.b., 5.c. Appellant does not pursue those claims on
appeal.


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42 Pa.C.S.A. § 5914.     The purpose behind the privilege has long been

recognized by our Courts as grounded in the marital relationship.

           The spousal confidential communications privilege
           has its roots in common law and is based upon
           considerations of public policy, as in the case of
           husband and wife to preserve the peace, harmony
           and confidence in their relations. The Section 5914
           privilege encompasses any communications which
           were confidential when made and which were made
           during the marital relationship. The determination of
           what constitutes a confidential communication
           depends upon whether the defendant has a
           reasonable expectation that the communication will
           remain confidential.      As a general matter, the
           presence of third parties at the time the
           communication is made negates the confidential
           nature of the communication.

Commonwealth v. Mattison, 82 A.3d 386, 394 (Pa. 2013) (internal

quotation marks and citations omitted), cert. denied, 135 S. Ct. 221 (2014).

“Historically, the privilege was enacted to preserve marital harmony by

encouraging free marital communication, allowing spouses to confide freely,

and protecting the privacy of marriage.”    Commonwealth v. Hunter, 60

A.3d 156, 159 (Pa. Super. 2013).

           While    communications     between   spouses     are
           presumed to be confidential under section 5914, it
           has long been recognized that whether a particular
           communication is privileged depends upon its nature
           and character and the circumstances under which it
           was said. It is essential that the communication be
           made in confidence and with the intention that it not
           be divulged. Moreover, it is the burden of the party
           opposing the privilege to overcome the presumption
           of confidentiality.

Id. at 159-160 (citations and footnote omitted).

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      Instantly, the Commonwealth did not call Appellant’s husband as a

witness. Therefore, his competency as a witness under Section 5914 is not

at issue.   Playing the audio recording of Appellant’s conversation with her

husband does not implicate “the peace, harmony and confidence” of her

marital relationship, because the information is not being disclosed by her

spouse.     See   Mattison,   supra.      Section   5914   only   addresses   the

competency of a spouse to disclose privileged marital communications made

to that spouse.      See 42 Pa.C.S.A. § 5914.          Further, the trial court

determined that Appellant had been advised that her communications in the

prison were subject to recordation, which negated the confidential nature of

her conversation with her husband. Trial Court Opinion, 1/4/13, at 4; see

Mattison, supra.      Accordingly, we conclude Appellant’s second issue is

devoid of merit.

      In her final issue, Appellant alleges the trial court erred in refusing to

grant her motion for change of venue or venire. Appellant’s Brief at 36.

                   A request for a change of venue or venire is
                   addressed to the sound discretion of the trial
                   court, which is in the best position to assess
                   the atmosphere of the community and to judge
                   the necessity of the requested change. Absent
                   an abuse of discretion, the trial court’s decision
                   will not be disturbed.

                   A change of venue becomes necessary when
                   the trial court determines that a fair and
                   impartial jury cannot be selected in the county
                   in which the crime occurred. … Ordinarily[] a
                   defendant is not entitled to a change of venue
                   unless he or she can show that pre-trial

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               publicity resulted in actual prejudice that
               prevented the impaneling of an impartial jury.
               The mere existence of pre-trial publicity does
               not warrant a presumption of prejudice.

               There is an exception to the requirement that
               the defendant demonstrate actual prejudice.
               Pre-trial publicity will be presumed to have
               been prejudicial if the defendant is able to
               prove that the publicity was sensational,
               inflammatory, and slanted toward conviction,
               rather than factual or objective; that such
               publicity revealed the defendant’s prior
               criminal record, if any, or referred to
               confessions, admissions, or reenactments of
               the crime by the defendant; or that it was
               derived from official police and prosecutorial
               reports.    Even if the defendant proves the
               existence     of   one   or    more    of   these
               circumstances, a change of venue or venire is
               not warranted unless he or she also shows that
               the pre-trial publicity was so extensive,
               sustained, and pervasive that the community
               must be deemed to have been saturated with
               it, and that there was insufficient time between
               the publicity and the trial for any prejudice to
               have dissipated.

          Commonwealth v. Karenbauer, 552 Pa. 420, 715
          A.2d 1086, 1092 (1998) (citations omitted); see
          also Commonwealth v. Briggs, 608 Pa. 430, 12
          A.3d 291, 314 (2011) (“[T]he pivotal question in
          determining whether an impartial jury may be
          selected is not whether prospective jurors have
          knowledge of the crime being tried, or have even
          formed an initial opinion based on the news coverage
          they had been exposed to, but, rather, whether it is
          possible for those jurors to set aside their
          impressions or preliminary opinions and render a
          verdict solely based on the evidence presented to
          them at trial.”).

Commonwealth v. Chmiel, 30 A.3d 1111, 1152-1153 (Pa. 2011).


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      We are constrained to find this issue waived. As noted in footnote two

above, the transcript of the hearing on Appellant’s omnibus pretrial motion is

not contained in the certified record.       Also, as noted, the trial court in

denying Appellant’s motion for change of venue or venire, as contained in

her omnibus pretrial motion, recognized that the motion was “deemed

continuing and can be addressed pretrial upon further information being

developed or, certainly, at a time when difficulty in empanelling a jury is

encountered.”    Trial Court Memorandum, 2/8/11, at 1.        In her post-trial

motion, Appellant asserts, “counsel for [Appellant] renewed their motion

made pretrial for [c]hange of [v]enue/[c]hange of [v]enire.”        Appellant’s

Post-Trial Motion, 2/21/12, at 12, ¶ 50.         Appellant indicates additional

evidence was presented at that time. Id. at 12, ¶¶ 49, 51. Again, however,

we note that no written renewal motion appears in the record and no

transcript of the hearing on Appellant’s motion is contained in the certified

record or Appellant’s reproduced record. Additionally there is no transcript

of jury selection in the record.

      Absent these critical materials, it is impossible for this Court to review

the trial court’s decision on this issue. The only materials before us are the

articles attached to Appellant’s Omnibus pretrial motion, which are dated

over a year before trial. There is no basis upon which to evaluate the trial

court’s determination that the publicity was “not so extensive, sustained and

persuasive without sufficient time between publication and trial for the


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J-A26019-14


prejudice to dissipate[,] … [or] so pervasive that [] the community has been

saturated with it.”   Trial Court Opinion, 1/4/13, at 11 (internal quotation

marks and citation omitted).      Further we cannot evaluate the prejudicial

impact, if any, on jury selection. See Chmiel, supra.

      As noted above, “[o]ur law is unequivocal that the responsibility rests

upon the appellant to ensure that the record certified on appeal is complete

in the sense that it contains all of the materials necessary for the reviewing

court to perform its duty.” Preston, supra. We conclude Appellant’s failure

to do so in this instance results in waiver of her challenge to the trial court’s

denial of her motions for change of venue or venire. See id.

      Having determined all of Appellant’s issues are either meritless or

waived, we discern no error or abuse of discretion by the trial court in its

disputed rulings. Accordingly, we affirm the February 9, 2012 judgment of

sentence.

      Judgment of sentence affirmed.

 Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/15/2014




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