J-S79033-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JACKIE S. KAUFFMAN                         :
                                               :
                       Appellant               :   No. 1170 MDA 2018

          Appeal from the Judgment of Sentence Entered May 11, 2018
       In the Court of Common Pleas of Mifflin County Criminal Division at
                        No(s): CP-44-CR-0000653-2016


BEFORE: SHOGAN, J., OLSON, J., and MUSMANNO, J.

DISSENTING MEMORANDUM BY OLSON, J.:                 FILED FEBRUARY 12, 2019

        As I believe that the Anders1 brief filed on behalf of Appellant meets,

although barely, the requirements established by our Supreme Court in

Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009), I would not remand

this case but would decide it on the merits.

        As the learned Majority notes, Santiago requires that the Anders brief

state, inter alia, counsel’s reasons for concluding that the appeal is frivolous.

Majority Memorandum at 3. The Majority further notes that Appellant wishes

to raise challenges to the sufficiency of the evidence of the charge of

endangering the welfare of children (“EWOC”) and the excessiveness of the

sentence. Id. at 4. However, the Majority concludes that the Anders brief

fails to contain a statement from counsel as to why he believes that these

____________________________________________


1   Anders v. California, 386 U.S. 738 (1967).
J-S79033-18



challenges are frivolous, nor does he refer to anything in the record that he

believes arguably supports the appeal. Id. Although I agree that the Anders

brief filed by counsel is far from scholarly, I believe that it meets the basic

requirement of setting forth the basis for concluding that the issues are

frivolous. Thus, I must respectfully dissent.

      As for the sufficiency argument, counsel for Appellant asserts:

      Appellant engaged in a romantic relationship with Adam Stidfole,
      a known and designated Tier III Megan’s [L]aw offender. Adam
      Stidfole had previously been convicted of sexual abuse of children
      and possession of child pornography.

      Appellant engaged in the relationship with Adam Stidfole and
      moved in to [sic] his residence bringing her nine[-]year[-]old
      daughter in contact with Adam Stidfole. Appellant failed to warn
      her daughter of Adam Stidfole’s status nor did Appellant take any
      precautions to protect her daughter.

      Rather Appellant refused to accept the fact that Adam Stidfole was
      a convicted sex offender. When the facts of Mr. Stidfole’s status
      was [sic] made known to Appellant by Children and Youth Services
      she refused to acknowledge that evidence of Mr. Stidfole’s prior
      behavior.

      Despite this knowledge, Appellant allowed or failed to prevent
      contact between Adam Stidfole and her daughter. …

      Testimony presented by cross[-]examination of Appellant bore out
      the fact Appellant felt she had a duty of care but as a result of
      here [sic] lack of that duty caused harm to her nine[-]year[-]old
      daughter.

      Appellant’s assertions were that others were lying or intentionally
      false during their testimony at trial, including her daughter.

Anders brief at 2 (unnumbered).

      The Argument section of the Anders brief goes on to state:


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      There are no non-frivolous issues preserved for appeal.

                                     *****
      Appellant entered into a live[-]in relationship with Adam Stidfole,
      a convicted Sexual Offender Tier III of Megan’s Law. Appellant’s
      nine[-]year[-]old daughter was brought by her into this living
      arrangement.

      Appellant’s daughter testified at trial Mr. Stidfole had
      inappropriate contact with her. Appellant testified asserting her
      daughter was lying or coached to testify in such [a] manner and
      Appellant did not violate her duty of care for her daughter.

Anders brief at 3-4 (unnumbered). In my view, these statements indicate

that counsel believes the sufficiency claim regarding the EWOC conviction is

frivolous as the evidence established that Appellant permitted her nine-year-

old daughter to reside in the home of a convicted sexual offender and,

although warned by Children and Youth Services, failed to take steps to

protect her daughter from the abuser. Moreover, the evidence established

that the daughter testified to being sexually assaulted by Appellant’s

paramour. Appellant refused to believe her daughter and, instead, claimed

that she, and the other witnesses, were lying. Most significantly, the evidence

established that Appellant acknowledged on cross-examination that she

believed that she had a duty of care to her child but, as a result of a breach

of that duty, she caused harm to her daughter. In my view, this information

is sufficient for us to determine counsel’s reasons for concluding that the

sufficiency claim is frivolous.

      Turning to the claim that the sentence was excessive, the Anders brief

provides:

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J-S79033-18


      Appellant was sentenced to serve a one year to two year term of
      imprisonment in a State Correctional Institution. Appellant was
      granted RRRI relief bringing her potential sentence to nine months
      to two years.

      Appellant had a zero prior record score however the [c]ourt in
      imposing sentence indicated Appellant’s lack of care caused such
      damage to her daughter that the sentence imposed was
      appropriate.

Anders brief at 4 (unnumbered). Again, although I would not point to this

brief as an example of what a well-drafted Anders/Santiago brief should

entail, I find that it is sufficient for us to determine that counsel believes the

excessive sentence claim is frivolous as Appellant was sentenced to only one

to two years’ imprisonment, was afforded RRRI relief and was sentenced

based on her lack of care and the damage caused to her nine-year-old child.

      For the foregoing reasons, I do not believe that this case should be

remanded for counsel to make a subsequent filing. Instead, I believe that the

case should be decided on its merits at this time.




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