J. S61008/14


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA            :     IN THE SUPERIOR COURT OF
                                        :           PENNSYLVANIA
                   v.                   :
                                        :
ROXANNE TAYLOR,                         :         No. 1641 WDA 2013
                                        :
                        Appellant       :


       Appeal from the Judgment of Sentence, September 13, 2013,
           in the Court of Common Pleas of Washington County
             Criminal Division at No. CP-63-CR-0000827-2012


BEFORE: FORD ELLIOTT, P.J.E., WECHT AND STRASSBURGER,* JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:             FILED FEBRUARY 09, 2015

      Appellant appeals the judgment of sentence imposed following her

conviction on numerous charges related to her criminal neglect of her two

six-year-old boy and girl twins. Finding no error, we affirm.

      Appellant came to the attention of authorities on February 15, 2012,

when a stranger found the male child wandering along Seventh Avenue in

New Eagle wearing only a diaper and T-shirt. The child’s arms and legs were

purple, and he was covered with feces.        At the hospital, the child was

determined to be suffering from hypothermia.             A subsequent police

investigation uncovered appellant’s squalid home, and discovered the twin

sister in equally poor condition.       Both children were suffering from

malnutrition.




* Retired Senior Judge assigned to the Superior Court.
J. S61008/14


      On July 16, 2013, appellant was convicted of two counts each of

aggravated assault, simple assault, unlawful restraint, false imprisonment,

endangering the welfare of children, and recklessly endangering another

person.1 On September 13, 2013, appellant was sentenced to an aggregate

term of 14 to 50 years’ imprisonment. This timely appeal followed.

      Appellant raises the following issues on appeal:

            1.    Whether the evidence presented during trial
                  lack [sic] sufficient elements of the charges of
                  Aggravated Assault to render a guilty verdict.

            2.    Whether the Court erred and/or abused its
                  discretion in granting the Commonwealths’
                  [sic] objection to the introduction of a
                  preliminary transcript of an unavailable
                  witness?

            3.    Whether the Court erred and/or abused its
                  discretion during Jury Voir Dire and selection?

Appellant’s brief at 6-7.

      We find no error with the trial court’s analysis.     After a thorough

review of the record, the briefs of the parties, the applicable law, and the

well-reasoned opinion of the trial court, it is our determination that there is

no merit to the questions raised on appeal.      The trial court’s meticulous,

16-page opinion, filed on February 26, 2014, comprehensively discusses and

properly disposes of the questions presented. We will adopt it as our own

and affirm on that basis.


1
  18 Pa.C.S.A. §§ 2702(a)(1), 2701(a)(1), 2902(a)(1), 2903(a), 4304(a)(1), and
2705, respectively.


                                     -2-
J. S61008/14


     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/9/2015




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Copies: Molly Maguire Gaussa. Esq.; Troci McDonald, Esq.


IN THE COURT OF COMMON PLEAS OF WASHINGTON COUNTY, PENNSYLVANIA
                         CRIMINAL DIVlSION


COMMONWEALTIl OF PENNSYLVANIA )
                                                          )
                    vs.                                   )
                                                          )             NO. 827 of 201 2
ROXANNE TAYLOR,                                           )                                  ....
                                                                                             ,-     '



         Defendant                                        )                                  J ..;n
                                                                                              ,.0-
                                                                                                -· ~1
                                                                                            .;: :JJ
                                                                                             - ~

                          TRIAL OPINION PURSUANT TO PA.IU.P. 1925
                                                                                            -
                                                                                             ..-,
                                                                                                .•; r
                                                                                                        .,
                                                                                                                 -IT]2J
                                                                                                                 I


                                                                                                                 o
                                                                                                .~,




                    The Defendant, Roxanne Taylor, was tried before this Court and aji!& of·."

her peers from July 9, 2012 through July 15, 2013. She was found guilty of Aggravated
                                                                                                             ,
Assault, Unlawful Restraint, Endangering the Welfare of a Child, Simple Assault. and

Recklessly Endangering Another Person, two counts for each charge. On September 13,

2013, the Defendant was sentenced to a total period of incarceration of not less than

fourteen (14) years, to not more than fifty (50) years.

FACTS

           The victims of the crimes committed by the Defendant are Ms. Taylor'S two

children, E.B. and A.B .. six year old twins. The crimina1 investigation involving the

Defendaot's conduct began on February IS, 2012. On that day, a man on his way to

work at 6:00 a.m. noticed a small child along on the side of the road clad only in a diaper

and at-shirt. (T.T. p. 67) The mao, Edward Dennont, stopped immediately, picked up

the child and asked him where he lived.' The child pointed to the house in front of him.


I   Throughout Mr. Dennont's encounter with the child, he thought £.S. was a girl.




                                                      I          ...
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                            '-

Mr. Dermant knocked on the door but no one answered. The child was shivering

uncontrollably. Mr. Dermont took the child to his truck, wrapped him in a coat and

called his wife, who called the police. Mr. Dennont then drove to his own home located

a few minutes away. Both Mr. Dermont and his wife observed that the child's anns and

legs were purple, that he was shaking from the cold and was covered in feces . (T.T. pp.

34-8, 40, 67). They wrapped him in an afghan and put a heating pad on him in an effort

to warm him. Mrs. Dennont fed him Rice Krispies, toast and hot chocolate, which he

readily ate. (T.T. p. 69)

       The police arrived within a few minutes and the paramedics arrived and took the

child to the emergency room at the Mon Valley Hospital. The paramedic, Kenneth

Prunty, observed that the child's hands and feet were purple and mottled and that the

child was emaciated and thought he (he also believad the child was a girl) was two or

three years old. (T .T. pp. 134, 136-7) Mr. Prunty testified that the child was the worst

case of neglect he had seen in his thirty-one years of being a paramedic. (T.T. p. 153).

       In the meantime, the police arrived at the defendant's home and tried to rouse the

residents therein. Officer Rocco banged on the door and went around the house knocking

on windows, hitting the glass with a flashlight to make noise. The officer observed an

open window on the side of the house about ten feet off the ground and that the side yard

underneath the window was full of dog feces. (T.T. p. 85) After at least one half of an

hour, an hour after the child was found, the Defendant Ms. Taylor came to the door.

(T.T. p. 89) The officer asked her if she had children and to check on them. The

Defendant led Officer Rocco through the house to the children's bedroom. She unlocked




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                             '-
    a dead bolt on the bedroom door and opened the door. (T.T. p. 9J) One child was asleep

    on a mattress and the window was open; the Defendant stated to the officer that E.B.

    must have climbed out the window. Another inhabitant of the house, Edward Buckholtz,

    appeared from another bedroom. Mr. Buckholtz is the biological father of the children'

           As the officers went in the home on February 15,2012, they noticed a terrible

    stench of urine and feces throughout the home . (T.T. pp. 90, 161) The Defendant kept a

    large menagerie of animals in the house. There were at least six dogs in the basement,

    five cats throughout the house and two rabbits in cages. (1',T. pp. 1044-5) When Officer

    Rocco awoke the child, he noticed that she was very thin and bad some feces caked on

    her. (1'T p. 91) He noted there were no toy, but there was a potty chair full of feces and

    wine on the floor of the room. Another officer then transported the Defendant, Mr.

    Buckholtz and A,S. to the emergency room where ER was being treated, (1',T. p. 1019)

           ER arrived at the emergency room by ambulance at 7:00 ILm, He had a

temperature of94.5 degrees. considered to be hypothermic, (T,T p, 168). The

emergency room nurse, Janice Varley, observed that E.B. had a distended belly, that his

limbs were extremely thin and that he had bruising on his body, (Exhibits 12, 14-18,21 ),

The child's diaper was clean but he      was covered in feces, allover his feet and most of his
body. (T.T. p. 170, Exhibit 22). The child could speakonJy a few words, His hair Was

thin and brittle and he had a low potassium level , signs of malnutrition. (T.T. p.p. 173.

178-9).

          A.R was observed to have a distended abdomen and her legs were bowed and

thin, (T,T p. 231), Her hair was thin and matted with urine; she had. feces on her body.


1Mr. Buckholtz wu also cbarged with the same crimes 8l Case No. 826-12. He pled guilty to Aggravated
Assaul~ two counts, and received a negotiated .entence of two to four years.


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The children were showered and fed and transported to Children's Hospital of Pittsburgh

for further treatment. (T.T. p. 188)

        At Children's Ho>-pitol, a full medical cheCK-up was completed and a full medical

background was obtained. The children were born on January 27, 2006 at full term. At

birth, E.B. weighed eight pounds, seven ounces and A.a. weighed seven pounds and six

ounces. (T.T. p. 553). Those weights were considered '''robust'' and were in the 75%

per<:entile. The children's medical care provider was Mon Valley Community Health

Service. The children were seen at age three months, at which time they were noted to be

progressing normally. They were not seen again until age twenty-three months. By that

time, the children had not received the requiSite immunizations and had fallen off the

chans, in weight and height, and were by then below the fifth percentile. They were

diagnosed as failure to thrive. (T.T. p. 555). They were sent to an endocrinologist; no

medical condition was found to be the cause of their poor growth. Social Services were

contacted and became involved with the family. Washington County Children and Youth

Social Service Agency was involved on and offfi'om 2008 until February 2011. In-home

parenting was provided and the children were referred to Head Start and speech therapy.

The Defendant signed up for the WIC program which included nutrition counseling.

Generally, the Defendant WIIS cooperative with in-home services but did not follow

through with appoinbnents and therapies provided outside of the home. The last visit to

the pediatrician with the Defendant was in January 2011 . (T.T. p. 565) E.B. weighed

thirty-five pOWJds and WIIS 39.5 inches and A.B. WIIS thirty-six pounds and 40.5 inches.

(T.T. pp. 565, 587) These reflected fairly normal data, above the 25" percentile. By

February 15, 2012, a year later, the day E..B. was found outside, the children had lost




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 weight over the year. a very alarming occum:nce In children this age . A child at age nvc

 and six average. eight to ten pounds a year in weight gain. (T.T. p. 360). Dr. Squire. of

 Children', Hospital observed both children', developmental del.ys to be at a level of

 eighteen to twenty-four months behind and because no medical condition was present,

 the doctor concl uded that the developmcnta1 delays were caused by an inadequate home

environment. (T.T. p.p. 364. 370) Dr. Squires~ medical assessment was that the children

 were subjected to neglect. (T.T. p. 367). Upon discharge from Children's Hospital, the

children were placed in foster care. They both quickly gained weight. At the time of

trial, fifteen months later, E.B. weighed fifty-nine pounds and A.B. weighed fifty-six

pounds, a gain of approximately twenty pounds within a year, (T.T. p.p. 471,486)

           Dr. Wolford of the Child Advocacy Center of Children's Hospital, an expert in

the field of child abuse and neglect, reviewed this case and testified that the children were

the subject of child abuse and neglect. (T.T. p.p. 370). Dr. Walford quantified their

condition as moderate malnutrition. (T.T. p. 371) PhysiCian Assistant Aislynn Jenkins

testified that chronic malnutrition impairs long-term brain and organ development (T.T.

p. 602).

       The Defendant testified that she did not work and was home with the children.

She also lOok care of her disabled brother on a daily basis. (T.T. p. 990) The Defendant

took morphine for back pain. (T. T. p. 1064) She explained that she failed to hear Officer

Rocco on February 15,2012 because the air conditioning was so loud. (T.T. p. 1093)

The temperllture on that day was 35 degrees. (T.T. p. 137) The Defendant also testified

that on February 15, 2012, the children were not malnourished and their physical

condition as depicted in Exhibits 21 and 29 were normal and appropriate and th.tthe




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children's condition as depicted in Exhibits 46 and 47 show the children to be

overweight. (T.T. p. 1101 )

ISSUES ON APPEAL

        The Appellant raises three issues in her concise State of Matters Complained of

on Appeal:

        I.   SUFFICIENCY OF THE EVIDENCE FOR ACCRA VATED ASSAULT

        The evidence and testimony presented at the time of the Defendant's trial was
       insufficient to establish Defendant's guilt regarding the charges of Aggravated
       Assault beyond a "'8Sonable doubt. The elements of Aggravated Assault we'"
       not establiShed or proven as the injury was as a result of Aggravated Assault is
       to be a pennanent serious bodily injury. (Statement of Matters Complained of on
       Appeal, No. 1)

       In evaluating a challenge to the sufficiency afthe evidence, the Court must

determine whether the evidence edmitted at trial and all ",",onable infe",nce. drawn

therefrom, when viewed in light most favorable to the Commonwealth as the verdict

wiMer, is sufficient to permit the trier of fact to find that each element of the crimes

'Charged were proven beyond a reasonable doubt. Commonwealth y. Hopkins. 741 A.2d

910 (Pa. Super. 2000). If the trier of fact ",asonable could have determined from the

evidence presented that each element was established, the evidence is deemed sufficient

to support a guilty verdict. Id. at 914. The jury has sole responsibility of determining

whether to believe or disbelieve a witness. l!l. "This standard is equally applicable to

cases where the evidence is circumstantial rather than direct so long as the combination

of the evidence Iinks the accused to the crime beyond a reasonable doubt."

Commonwealth v. Thomas, 67 A.2d 594, 597 (pa. Super. 2005).

       At the trial, the Defendant moved for Judgment of Acquittal of the charge of

Aggravated Assault, claiming that the Commonwealth failed to establish that the



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Defendant acted recklessly under cucwnstances manifesting extreme lndifference to the

value of buman life and that the Commonwealth fililed to establish that either child victim

,uffered serious bodily injury. (T. T. pp. 751, 760). The Defendant again raised those

issues at the conclusion of the trial. (T.T. p. 1124) The issue on appeal, whether

sufficient evidence was presented to establish serious bodily injury, bas been properly

preserved.

        The Defendant was charged with two counts of Aggravated Assault, one for each

child The Criminallnfom1ation charged the Defendant as follows: "The actor did

attempt to cause serious bodily injury to another, namely, six-year old (E.B.) and (A.B.);

or caused such injury intentionally, knowingly, or recklessly under circumstances

manifesting extreme indifference \0 the value of human life, in violation of Section 2702

(a) (1) of the Pa. Crime Code Act of December 6, 1972, 1& Po. C.S.A. §2702 (a) (1), as

amended." See Record, DockelNo. 9.

       To substantiate a guilty verdict for the charge of aggravated assault pursuant to

Pa. C.S.A. §2701(a) (1), the Commonwealth must establish beyond a reasonable doubt

that I.) the Defendant caused serious bodily injury to the victim or victims and 2.) that

the Defendant acte d intentionally, knowingly or reckless Iy under circumstances

manifesting extreme indifference to the value of human life OR 1.) that the Defendsnt

attempted to cause serious bodily injury to the victim or victims and engaged in conduct

that constituted' a substantial step toward causing serious bodily injury and 2.) that the

Defendant's conduct was intentional, that it was her conscious object or purpose to cause

serious bodily injury.




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          The Commonwealth charged the Defendant with either causing serious bodily

injury or attempting to caUse serious bodily on each child. Causing or attempting to

cause were Dot charged sep81'8tely. The verdict slip did not reflect whether the jury found

that the Defendant actually caused serious bodily injury or attempted to caUSe such

injury.

          Th. Defendant contends in her Concise Statement, that the evidence did not

establish that the injury rose to the level of "permanent serious bodily injury" necessary

to find Aggravated Assault. Serious bodily injury is defined as any "bodily injury which

creates a substantial risk of death or which causes serous permanent disfigurement Or

protracted loss or impairment of the function of any bodily member or organ." 18 Po.

C.SA §2301.

          What constitutes serious bodily injury must be decided on a case by case basis.

CommQnwealth v. Dailey. 828 A.2d 356 CPa Super. 2003). it is for the jury to decide if

the Commonwealth has proven that serious bodily injury occurred. Here, both children

were severely underweight By all      aCCOWlts,   they were emaciated, bad distended bellies

and the medical professionals who saw them reported that they looked like children from

a Holocaust camp or a third world country. The evidence. if believed, established that the

children wen: neglected. The lock on the bedroom door and the over flowing potty chair

are facts from which it could be inferTed that the children were left alone for long periods

oftim•. No toys were observed to be available for the children. The children, at age six

years of age, were not potty trained, had very limited verbal skills, did not know basic

raclS and lacked many social skills. The jury could reasonably conclude that they were

the victims of abject neglect. Further, the jury could reasonably conclude that the




                                              8
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Defendant failed to provide sufficient food to the children. Dr. Wolford of Childn:n's

Hospital opined that the malnutrition impaired the childn:n's growth. E.B. was bow-

legged, which caused him to be clumsy and     impai~    his walking. A.B. Was also bow-

legged. A jwy could reasonably conclude that the lack of nutrition provided to the

children slowed their growth, deformed their bones, delayed their language development

and impaired the children' s overall brain development. The jury could reasonably find

that those conditions were .. protracted .... impairment of the function of any bodily

member or organ."

       The jury could also, in the alternative, have found that the Defendant failed to

adequately feed the children and neglected them and that the failure created a substantial

risk of serious bodily injury, which proves aggravated assault by attempting to cause

serious bodily injury. In addition to proving that the Defendant caused or attempted to

cause serious bod\ly injury, the Commonwealth must also have proven that the Defendant

possessed the requisite mens rea For the attempt to cause serious bodily injwy. the

Commonwealth must have proven that the Defendant had a strict mens rea, that the

Defendant's conduct was intentional, that it was her purpose to cause serious bodily

injury. The Court recognizes that intent to cause serious bodily injury may be proved

circumstantially. Commonwealth v. Rishtley, 617 A.2d 1289 (Pa. Super. 1999)

However, the case sub judice was devoid of evidence of the Defendant'S intent to hann

the children. There was no evidence of anger or withholding of food for punishment or

retribution. The element of intentionally or knowingly caused the hann was not

established. However, the jury could have reasonably concluded that the Defendant's

actions constituted a recklessness, that she acted recklessly under circumstances




                                             9
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manifesting extreme indifference to the value ofhwnan life. The children had no

medical conditions that affected the proper absorption or digestion of food. A reasonable

inference could be made that they were not fed sufficiently and properly, resulting in a

weight of only thirty-five pounds at age six. The Defendant's statement that the children

did not appear malnourished upon their admission to the hospital and appear overweight

a year later is very telling. One look at those pictures, Exhibits 21 . 29. 46, 47, shows how

reckless her conduct was and how dangerous the outcome could have been without the

chance encounter between a stranger and E.B. The jwy could reasonably conclude that

the Defendant's treatment and care of her children constiruted reckJess behavior

manifesting an extreme indifference to the well.being and safety of E.B. and A.B.

       Thus, the evidence w~ sufficient to establish that the Defendant caused serious

bodily injwy to E.B. and A.B. - by failing to feed them sufficiently and by neglecting

them, ",suiting in malnutrition, slowed growth, defonned legs, language delays and an

overall failure to thrive. The evidence was sufficient to establish that the firilure to

provide food and the overall neglect showed a recklessness manifesting an extreme

indifference to the value of human life. Sufficient evidence was present to support the

jwy's verdict that the Commonwealth proved that the Defendant committed Aggravated

Assault against each of the children.

       2. ADMISSIBILITY OF PRlOR TESTIMONY OF DR. HOLEKAMP

       The Court erred andlor abused its discretion in granting the Commonwealth's
       objection to the introduction of the Preliminary Hearing Transcript of Doctor
       Holekamp introduced by Defense COWlsel to Impeach the testifying witness.
       (Trial Transcript: 191-196). (Statement of Matters Complained of on Appeal,
       No. 2)




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            The Defendant avers that the CO\U1 erred by sustaining the Commonwealth's

objection that prior testimony of Dr. Holekamp was inadmissible hearsay. Dr. Holekamp

testified at the preliminary hearing as a witness ror the Commonwealth. but did not testify

attriat.

            Hearsay is defined as, ". statement, other than one made by the declarant while

testifying at the mal or hearing. offered in evidence to prove the truth of the maner

asserted. Pa.R.E. 801(c). Hearsay is generally not admissible. Pa.R.E. 802. However,

fanner testimony can be admissible when a declarant is WlBvailable and the party against

whom the testimony is now offered had an adequate opportunity and similar motive to

develop the testimony by dirttt, cross, or redirect examination. Pa.R.E. 804.

           At trial, the COlTUJ\onwealth called Jamie Lynn Varley             lIS   one of its many

witnesses. (T.T. at p.167.) On February 15,2012, she was worldng as registered nurse at

Mon Valley Hospital in the emergency room. Upon arriving 81 the hospital at 7:00 a.m.,

Ms. Varley learned that she would be treating a six~year-old boy who was hypothermic.

(T.T. p. 168). The child's temperature was at 94.5 degrees at his admission.' ld. When

the witness was asked to describe the child's appearance at the emergency room, she

answered:

                    He looked like a child from a third world country. His
                    abdomen was distended, his legs looked like little tree
                    sticks. He just looked broken. I couldn't' believe he was
                    six years old. He looked like a thiee-year-<Jld. He was in a
                    diaper. He had feces in between his toes, on his hands,
                    stuck on his leg. His feet were reddish, purplish color. His
                    legs looked mottled. like they didn't have enough profusion
                    to the legs.


J   On cross-examination. Ms . Varley testified that the child's temperature was 94.9 deatces.




                                                       1I
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 (T.T . pp. J68:21 - 169:6.) Thereafter, the witness offered compelling testimony to the

care provided and the deplorable state of the child's wellbeing. She was then offered for

cross examination.

        During cross-examination. Defense counsel asked the witness if she was aware of

Dr. Holekamp's testimony at the preliminary hearing. (T.T. p. 191) The witness was

not aware of the Doctor's previous testimony. (T,T. p. 191). An attempt to read from the

transcript of the Doctor's testimony was mede, which was objected to by the

Commonwealth. Specifically, Defense COWlsel wanted to introduce the Doctor's

statement of "we kind of warmed him up". (T.T. pp. 191-193) He argued that the

transcript was not an "outooOf..coun statement," but rather testimony from a previous

hearing and therefore outside the definition of hearsay. Defense counsel also argued that

the statement was being used for impeachment purposes. (T.T. p. 192.) At sidebar,

Defense counsel's position was that the witness' testimony characterized the child's

condition as a severe case, while the Doctor's prior testimony painted a less grim picture

of the child's condition and treatment provided. (T.T. pp. 192 - 193.) The Doctor's

testimony would be used to impeach the witness' credibility. This Cowt reminded

Defense Counsel that he could call the Doctor as a witness if desired, but cOWlsci

believed the Doctor's presence was unnecessary. The Court sustained the

Commonwealth's objection.

       Though a declarant's former testimony may be admissible, such exclusion to the

hearsay rule requires that the declarant be Wlavailable at trial. Pa.R.E. 804(b).

Unavailability is defined as:

               "Unavailability as a witness" includes situations in which
               the declarant:



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                       (1)      is exempted by ruling of the coW1 on the
                       ground of privilege from testifying concerning the
                       subject matter of the declarant's statement, or
                       (2)     persists in refusing to testify concerning the
                       S\Ibject matter of the declarant's statement despite
                       an order of court to do SO; or
                       (3)     testifies to a lack of memory of the subject
                       matter of the declarant's statement; or
                       (4)      is Wlable to be present or to testify at the
                       hearing because of death or then existing physical
                       or mental illness or infirmity; or
                       (5)     is absent from the hearing and the proponent
                       of 8 statement has been unable to procure the
                       declarant's attendance.. . by process or other
                       reasonable means.

               A declarant is not unavailable as a witness if exception,
               refusal, claim of lack of memory, inability, or absence is
               due to the procurement or wrongdoing of the proponent of
               a statement for the purpose of preventing the witness from
               anending 0" testifying.

Pa.R.E. 804(8). The case law surrounding an Wl8vailable witness' prior testimony largely

focuses on testimony wished to be introduced by the Commonwealth. See, Commonwealth v. StayS,

70 A.3d 1256 (pa. Super. 20 13)(addressing admission of preliminary hearing testimony when

a witness had subsequently been murdered)~ Commonwealth v. Cruz·Cenleno. 668 A.2d 536

(Pa.Super. 199S)(holding that a witness who cannot be found will be deemed unavailable only if

a good-faith effort to locate the witness and compel testimony had failed); Commonwealth v. Smith,

647 A.3d 907 (pa.Supe'. J994)(where a witness' refusal to testify at trial rendered him

unavailable). Whether a good-faith effon has been made is a question of reasonableness.

Smith, supra. (citing Commonwealth v, Melson, 637 A.2d 633 (pa.Super 1994».

       The record is devoid of any allegations that Dr. Holekamp was unavailable to

attend the trial. He had relocated to Florida. The Commonwealth had suggested that

his entire testimony be presented to the jury but the Defendant did not agree. Defense




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Counsel simply did not believe thllt the Doctor"s preaence end testimony were neceaary

 for the limited pwpose. No reasonable good-faith cfi'ort was made to procure the Doctor's

testimony at trial. Inconvenience alone docs not manifest \Ulllvailability. As such, the

former testimony exception did Dot apply to the Doctor's stalement and was inadmissible hearsay.

       An out-of-court statementjs not hearsay when it is being offered far a purpose

other than the truth of the matter asserted. Pa.RE. 80 I. Defense counsel argued that

the statement would b. used for impeachment purpcses. This Court notes lbat this question

is analogous to the matter before the Pennsylvania Supreme Court in Commonwealth v, Baa.

43 I A.2d 909 (po. 1981). There, the defendant testified in his homicide trial. On cross-

examination, the Commonwealth impeached the defendant with verbatim statements made

by a witness to the slaying as recorded by the investigating officer. The Commonwealth

made a similar argument: that the statements were not he"""y, as they were only

offered for impeachment PllIpos" and not offered for the truth of the matter they asserted.

14 at 912.   The Supreme Court stated,

                In our view, however, this argument either reflects a
                hopelessly shallow understating of the function of lbe
                hearsay rule, or, worse, disingenuously seeks to defend a
                subtwge to introduce otherwise inadmissible evidence
                under the guise of impeachment The statement. .. for
                impeachment by conb'adiction. by its very nature is
                founded upon the truth of the contradictory evidence
                offered.

                                          • ••
               The statement here in question, obviously incompetent
               hearsay lfotfered .. direct evidence, gained no competency
               by vinue of the fact that it was brought out on cross-
               exarnlnation in an effott to estshlish that [defendant's]
               recitation of the facts was untrue.

[d. at912-913.




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        Ms. Vadey cbaraeterized the child's condition as (evere . TIle Doctor's isoJated pnor

statement suggested a less severe condition. Defense counsel's goal was to convince the jury

that the nUI!le's opinion was skewed and they should give greater weight to the Doctor',

isolated sta!emenl. The Doctor's testimony would be used exactly for the matter that it asserted.

The statement was unquestionably inadmissible he"""y. The Court did not commit error.

3. VOIRDIRE

        The Court erred andlor abused its discretion during Jury ViOT Dire and selection.
        The Court did not allow for a second day of jury selection end limited the Defendant',
        selection of impartial jurors by way of denying a second day of Jury selection.
        (Statement of Matters Complained of on Appeal, No. 3)

        As • threshold matter, the Court finds thet this issue i. waived. Under Pa. R. App.

P. 302(0), issues nol raised in the lowor court are Waived and cannot be asserted for the

fj"t time on appeal. Pa. R.A.P. No. 302 (a); Commonwealth y. Fitzgera!d, 877 A.2d

1273 (pa. Super. 2005). AI no time did the Defendant request more j urors Or ask for "a

second day of jury se1ection.tI

       Jury selection begen on July 8, 2013 at 2:05 p.m. (See Transcript JUly 8, 2013).

The pool consisted of thirty-eight potential jurors. Five were stricken faT cause at the

motion of the Defendant Those jurors were 88, 321, 308, 21 , and 14. Additionally,

nefendantmoved to strike an additional five (5) jurors (No. 51, 96, 94, 310, and 382)

which were denied. The Commonwealth and Defendant were each affOrded seven

preemptory strikes.   There were more than a sufficient nwnber of qualiJied jlD'Ors fi'om
which to choose. The Commonwealth and Defendant then selected twelve jurors

foUowed by two alternate jurors. This described process was never objected to the

Defendant. Accordingly, any issue arising from jury selection is waived on appeal. Even

if the fivejW'Ors which the Defendant bed esked to be exc:uoed bed been struck, a



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sufficient number of jurors remained and were available when tho solection 'Wa3 to bc::sin-

Fourtc:cnjurol'll and fourteen strikes fur a total of twenty-eight persons were needed. Th.

Court did not limit a second day ofjury ,election. Th= was absolutely no need for more

jurors or a second day. The jury selection was fair and impartial and the Court

committed no error in the voir dire.

CONCLUSION

        The conviction of Roxanne raylor on all counts should be aflinned.

                                             BY THE COURT:




Date:   f':e.-t. d£/ ;zo /'-1




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