J-S30010-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                         Appellee

                    v.

CHAD MARSHALL WILCOX,

                         Appellant                  No. 1032 MDA 2016


         Appeal from the Judgment of Sentence January 22, 2016
            In the Court of Common Pleas of Lycoming County
           Criminal Division at No(s): CP-41-CR-0001056-2012


BEFORE: SHOGAN, RANSOM, and MUSMANNO, JJ.

MEMORANDUM BY SHOGAN, J.:                             FILED JULY 18, 2017

     Appellant, Chad Marshall Wilcox, appeals from the judgment of

sentence entered on January 22, 2016, in the Lycoming County Court of

Common Pleas. We affirm.

     The record reveals that on March 16, 2012, Appellant was charged

with numerous crimes in connection with the sexual abuse of his six-year-old

step-daughter, I.F. Specifically, Appellant was charged as follows:

           [Appellant] was charged with Statutory Sexual Assault1,
     Aggravated Indecent Assault2, Involuntary Deviate Sexual
     Intercourse with a Child3, Indecent Assault (under 13 years of
     age)4; Corruption of Minors (sexual offenses)5; Rape of a Child6;
     Indecent Exposure7; and Unlawful Contact with a Minor8.
     [Appellant] was tried by jury on January 21, 2016, with the jury
     returning a verdict of guilty on all counts.
           1
               18 Pa.C.S. § 3122.1
           2
               18 Pa.C.S. § 3125
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           3
               18 Pa.C.S. § 3123(B)
           4
               18 Pa.C.S. § 3126(A)(7)
           5
               18 Pa.C.S. § 6301(a)(1)(ii)
           6
               18 Pa.C.S. § 3121(c)
           7
               18 Pa.C.S. § 3127(A)
           8
               18 Pa.C.S. § 6318(a)(1)

           The Court sentenced [Appellant] to an aggregate sentence
     of 21 to 70 years, to be served consecutively to a 40 to 80 year
     sentence for murder out of Montgomery County, Pennsylvania.
     For Count 6 Rape of Child, the Court imposed a minimum
     sentence of 10 years and a maximum sentence of 40 years. For
     Count 8 Unlawful Contact with a Minor, the Court imposed a
     minimum sentence of 10 years, the maximum of 20 years. The
     sentences in both those counts were ordered to run consecutive
     to one another. For Count 1 Statutory Sexual Assault, the Court
     sentenced [Appellant] to a minimum of one (1), maximum of 10
     years in a state correctional institution, also to run consecutive
     to sentences in Count 6 and Count 8.

Pa.R.A.P. 1925(a) Opinion, 8/22/16, at 1. Post-sentence motions were filed

and denied. This timely appeal followed. Both Appellant and the trial court

have complied with Pa.R.A.P. 1925.

     On appeal, Appellant raises seven issues for this Court’s consideration:

     I. The lower court erred in determining that there was sufficient
     evidence to support a conviction of all charges following the
     January 21, 2016 trial, as the Commonwealth did not establish
     the factual predicate necessary for conviction.

     II. The lower court erred by finding that the alleged victim was
     unavailable for purposes of the Tender Years doctrine and




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       admitting hearsay evidence from Lou Ann [Ziegler],[1] Melis[s]a
       [Dangle],[2] and Sherry Moroz.

       III. The lower court erred by ruling that the alleged victim was
       unavailable to testify, thereby violating the Appellant’s right to
       confrontation as guaranteed by the Pennsylvania and United
       States Constitutions.

       IV. The lower court erred by failing to discharge the entire jury
       panel when, during selection, Juror #1 stated in open court that
       the District Attorney was a good man who hires good people.
       The Court ordered Juror #1 be stricken for cause, but refused to
       discharge the entire panel.

       V. The lower court erred by denying the Appellant’s motion to
       dismiss based upon Sgt. Taylor’s unlawful seizure of the
       Appellant’s discovery, notes, and documents containing trial
       strategy developed by the Appellant and his trial counsel.

       VI. The lower court erred by denying the Appellant’s request for
       continuance due to the fact that his discovery and notes had
       been obtained by the Commonwealth.

       VII. The lower court erred by permitting Mr. Mowery’s testimony
       during trial concerning statements made to him by the alleged
       victim.

Appellant’s Brief at 7.

       In Appellant’s first issue, he avers that the evidence was insufficient to

support a conviction of all charges.3            Appellant was convicted of eight

____________________________________________


1
  Lou Ann Ziegler is also referred to as Luann Ziegler and Luanne Ziegler.
N.T., 1/21/16, at 49, 50. We will utilize Lou Ann Ziegler for consistency.
2
 Melissa Dangle is also referred to as Melissa Wheeland. N.T., 11/12/13, at
90; N.T., 1/21/16, at 59. We will utilize Melissa Dangle for consistency.
3
   Appellant presented this issue in his Pa.R.A.P. 1925(b) statement as
follows: “1. [Appellant] submits the evidence was insufficient to prove that
(Footnote Continued Next Page)


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separate crimes: statutory sexual assault; aggravated indecent assault;

involuntary deviate sexual intercourse with a child; indecent assault where

the victim is under thirteen years of age; corruption of minors of a sexual

nature; rape of a child; indecent exposure; and unlawful contact with a

minor. We note that:

      [i]n order to preserve a challenge to the sufficiency of the
      evidence on appeal, an appellant’s Rule 1925(b) statement must
      state with specificity the element or elements upon which the
      appellant     alleges   that   the  evidence   was    insufficient.
      Commonwealth v. Gibbs, 981 A.2d 274, 281 (Pa. Super.
      2009), appeal denied, 607 Pa. 690, 3 A.3d 670 (2010). “Such
      specificity is of particular importance in cases where, as here,
      the appellant was convicted of multiple crimes each of which
      contains numerous elements that the Commonwealth must
      prove beyond a reasonable doubt.” Id. at 281 (citation omitted).
      Here, as is evident, Appellant not only failed to specify which
      elements he was challenging in his Rule 1925(b) statement, he
      also failed to specify which conviction he was challenging. Thus,
      we find Appellant’s sufficiency claim waived on this basis. See
      Gibbs, supra.

Commonwealth v. Garland, 63 A.3d 339, 344 (Pa. Super. 2013).

      Appellant’s bald assertion fails to detail which crimes, let alone which

elements of the crimes were not proven beyond a reasonable doubt.

Pursuant to Garland, we conclude Appellant’s failure in this regard is fatal to

his challenge to the sufficiency of the evidence, and we conclude that he has

waived this issue on appeal. Id.


                       _______________________
(Footnote Continued)

[he] actually committed any sexual abuse of the alleged victim.”     Pa.R.A.P.
1925(b) Statement, 7/7/16, at ¶1.



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      In his second and third issues, Appellant avers that the trial court

erred by finding that I.F. was unavailable to testify pursuant to the tender

years exception to the prohibition on hearsay, and violated Appellant’s right

to confrontation as guaranteed by the Pennsylvania and United States

Constitutions. We disagree.

      It is well settled that “[t]he admission of evidence is solely within the

discretion of the trial court, and a trial court’s evidentiary rulings will be

reversed    on   appeal    only    upon    an    abuse    of   that   discretion.”

Commonwealth v. Woodard, 129 A.3d 480, 494 (Pa. 2015) (citation

omitted). “An abuse of discretion will not be found based on a mere error of

judgment, but rather occurs where the court has reached a conclusion that

overrides or misapplies the law, or where the judgment exercised is

manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will.”

Id. (citation omitted).

      Hearsay is defined as a declarant’s out-of-court statement offered to

prove the truth of the matter asserted, and it is generally inadmissible

unless an exception applies.      Pa.R.E. 801 and 802.         The “tender years

exception,” one of the exceptions enumerated in Pa.R.E. 802, provides as

follows:

      (a) General rule.--An out-of-court statement made by a child
      victim or witness, who at the time the statement was made was
      12 years of age or younger, describing any of the offenses
      enumerated in 18 Pa.C.S. Chs. 25 (relating to criminal
      homicide), 27 (relating to assault), 29 (relating to kidnapping),
      31 (relating to sexual offenses), 35 (relating to burglary and

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     other criminal intrusion) and 37 (relating to robbery), not
     otherwise admissible by statute or rule of evidence, is admissible
     in evidence in any criminal or civil proceeding if:

           (1) the court finds, in an in camera hearing, that the
           evidence is relevant and that the time, content and
           circumstances of the statement provide sufficient
           indicia of reliability; and

           (2) the child either:

                 (i) testifies at the proceeding; or

                 (ii) is unavailable as a witness.

42 Pa.C.S. § 5985.1(a) (emphasis added).

     The unavailability component is set forth as follows:

     (a.1) Emotional distress.--In order to make a finding under
     subsection (a)(2) (ii) that the child is unavailable as a witness,
     the court must determine, based on evidence presented to it,
     that testimony by the child as a witness will result in the child
     suffering serious emotional distress that would substantially
     impair the child’s ability to reasonably communicate. In making
     this determination, the court may do all of the following:

           (1) Observe and question the child, either inside or
           outside the courtroom.

           (2) Hear testimony of a parent or custodian or any
           other person, such as a person who has dealt with
           the child in a medical or therapeutic setting.

     (a.2) Counsel and confrontation.--If the court hears
     testimony in connection with making a finding under subsection
     (a)(2)(ii), all of the following apply:

           (1) Except as provided in paragraph (2), the
           defendant, the attorney for the defendant and the
           attorney for the Commonwealth or, in the case of a
           civil proceeding, the attorney for the plaintiff has the
           right to be present.


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              (2) If the court observes or questions the child, the
              court shall not permit the defendant to be present.

42 Pa.C.S. § 5985.1(a.1) and (a.2).

        The record reveals that the trial court held hearings on this issue, and

the court initially ruled that I.F.’s statements to Melissa Dangle of the

Lycoming County Office of Children and Youth Services, and elementary

school counselor Lou Ann Ziegler, were admissible under the tender years

exception, but the testimony of special education teacher Kyle Mowery, and

forensic interviewer Sherry Moroz was inadmissible.            Opinion and Order,

3/28/14.     The Commonwealth filed a motion for reconsideration, and the

trial court revisited the statements and the conditions under which I.F. made

those    statements     to   Kyle   Mowery     and   Sherry   Moroz.     Motion   for

Reconsideration, 4/2/14.        Following a hearing held on April 22, 2014, the

trial court concluded that in addition to the hearsay testimony of Melissa

Dangle and Lou Ann Ziegler, the hearsay testimony of Sherry Moroz would

be permitted at trial. Opinion and Order, 5/2/14.4

        On appeal, Appellant simply attempts to minimize I.F.’s emotional

distress and assail her credibility.       Appellant’s Brief at 26-28.   Appellant’s

argument places blame on I.F.’s father for not being cooperative in obtaining

therapy for I.F. that could have made her more confident and prepared to
____________________________________________


4
  Despite changing its decision with respect to Sherry Moroz’s testimony, the
trial court did not alter its decision regarding Kyle Mowery. Opinion and
Order, 5/2/14.



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testify.   Id.   Moreover, Appellant states that I.F. has testified before, and

thus, could have testified at trial.             Id.   However, these conclusory

arguments fail to illustrate how the trial court erred or abused its discretion

in ruling that I.F. was unavailable.

       After review, we conclude that the trial court complied with the

requirements set forth in 42 Pa.C.S. § 5985.1(a.1) and (a.2) and found that

I.F. was unavailable.         Accordingly, we affirm the trial court’s decision

regarding I.F.’s unavailability and the admissibility of testimony from Melissa

Dangle, Lou Ann Ziegler, and Sherry Moroz, based upon the thorough

opinions and orders filed by the Honorable Marc F. Lovecchio on March 28,

2014, and May 2, 2014.5

       In his fourth issue on appeal, Appellant claims that the trial court erred

when it refused to discharge the entire jury panel after a comment made by

a prospective juror. Appellant claims that the comment irrevocably tainted

the entire jury panel. We disagree.

       The purpose of voir dire is to ensure the empaneling of a fair and

impartial jury capable of following the trial court’s instructions on the law.

Commonwealth v. Marrero, 687 A.2d 1102, 1107 (Pa. 1996).                     The

decision to disqualify prospective jurors is left to the discretion of the trial

court, and that decision will not be disturbed on appeal absent an abuse of
____________________________________________


5
  The parties are directed to attach copies of these opinions to future filings
in the event of further proceedings in this matter.



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that discretion.   Commonwealth v. Ingber, 531 A.2d 1101, 1103 (Pa.

1987). “The law also recognizes that prospective jurors were not cultivated

in hermetically sealed environments free of all beliefs, conceptions and

views. The question relevant to a determination of qualification is whether

any biases or prejudices can be put aside upon the proper instruction of the

court.” Id. (citation omitted).

      The record reveals that during jury selection, the following exchange

occurred in the presence of the jury panel:

      PROSEPECTIVE JUROR 1: Number 1, Keith Morton, I worked
      for [District Attorney] Eric Linhardt at his house, construction.

      [Assistant District Attorney Melissa] Kalaus: … Based on
      that do you feel you could be fair and impartial in this case?
      [District Attorney Eric Linhardt will] have absolutely no dealings,
      he’s not going to be questioning or taking part in this trial.

      PROSEPECTIVE JUROR 1: I wouldn’t know, I’m not sure.

      MS. KALAUS: You’re not sure? Like I said, we want –

      PROSEPECTIVE JUROR 1: It’s kind of a gray area.

      MS. KALAUS: And seeing that [District Attorney Eric Linhardt]
      has absolutely nothing to do with this, it’s my prosecution, my
      case, he won’t be doing anything with the case, you still have a
      problem?

      PROSEPECTIVE JUROR 1: I still have doubts.

      MS. KALAUS: Challenge.

      [DEFENSE COUNSEL MICHAEL] RUDINSKI:                 Challenge for
      cause.

      THE COURT: I don’t quite understand Mr. Morton. You say you
      would have difficulty – you built Mr. Linhardt’s house –

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      PROSEPECTIVE JUROR 1: I worked on his house.

      THE COURT: Worked on his house?

      PROSEPECTIVE JUROR 1: Worked on his house.

      THE COURT: You really think that would affect your ability to
      be impartial in this case having no virtual involvement with Mr.
      Linhardt other than his title?

      PROSEPECTIVE JUROR 1:            He’s a good man, I figure he hires
      good people.

      THE COURT: You’re excused sir. Please return to the Juror’s
      Lounge. Tell them I excused you for the day.

N.T., 1/6/16, at 21-22.

      At this juncture, Appellant’s counsel requested that the trial court

excuse the entire jury panel.       N.T., 1/6/16, at 21-22.    The trial court

refused, voir dire continued, and a jury was empaneled.

      After review, we conclude that the prospective juror’s comment did not

prevent the empaneled jury from rendering a true verdict as each of the

empaneled jurors affirmed that they were capable of following the trial

court’s instructions and rendering an impartial decision. N.T., 1/6/16, at 25-

39.   Simply stated, Appellant’s argument is purely speculative. The trial

court did not abuse its discretion in refusing to strike the entire jury panel,

and Appellant is entitled to no relief on this issue.

      In Appellant’s fifth and sixth issues, he avers that the trial court erred

in denying Appellant’s motion to dismiss due to Sergeant James Taylor’s

seizure of Appellant’s notes and documents that Appellant alleges were

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protected by attorney-client privilege, and that the trial court erred in

refusing to grant a continuance. Appellant’s claims fail.

      The record reflects that during the investigation into Appellant’s

crimes, Appellant’s wife voluntarily gave Sergeant Taylor some paperwork

that Appellant had drafted. N.T., 1/14/16, at 7. Appellant alleges that these

“discovery” materials were protected by attorney-client privilege. However,

the materials in question consisted of letters and notes Appellant formulated

that were sent to his wife or his mother—not his attorney.                Thus, we

conclude that they were not created exclusively for his lawyer and not

protected by attorney-client privilege.       Commonwealth v. Mrozek, 657

A.2d 997, 998 (Pa. Super. 1995). Moreover, while Appellant baldly claims

that the trial court should have granted a continuance because he was

prevented from establishing a defense due to the Commonwealth obtaining

the letters referenced above, he fails to state how.            This boilerplate

allegation is insufficient to allow for appellate review.    In addition, as the

trial court pointed out, Appellant and his counsel knew for two years that

Appellant’s “file” remained in possession of the Commonwealth; during those

two years, however, neither Appellant nor his counsel took any action to

obtain this information.      Pa.R.A.P. 1925(a) Opinion, 8/22/16, at 6-7.

Accordingly, Appellant is entitled to no relief on issues five and six.




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      In his final issue on appeal, Appellant claims that the trial court erred

by permitting Mr. Mowery to testify concerning statements made to him by

I.F. We conclude that Appellant is entitled to no relief on this issue.

      We reiterate that the admissibility of evidence is left to the discretion

of the trial court. Woodard, 129 A.3d at 494. Moreover, we also point out

that not every error at trial requires a mistrial, and the harmless error

doctrine reflects that the accused is entitled to a fair trial, not a perfect one.

Commonwealth v. West, 834 A.2d 625, 634 (Pa. Super. 2003). An error

is harmless if the evidence of guilt is so overwhelming, that by comparison

the error is insignificant.   Commonwealth v. Mitchell, 576 Pa. 258, 839

A.2d 202, 214 (Pa. 2003).      “An error will be deemed harmless where the

appellate court concludes beyond a reasonable doubt that the error could

not have contributed to the verdict.” Id.

      As noted above, the trial court ruled that the tender years exception

would not permit Mr. Mowery to testify regarding statements I.F. made to

him. However, at trial, Mr. Mowery, a teacher at I.F.’s school, testified that

I.F. told him that “she had a secret with her stepfather.” N.T., 1/21/16, at

24.   Appellant objected and moved for a mistrial, and the trial court

overruled the objection. Id. at 24, 46.

      In its opinion, the trial court explained its decision as follows:

            This Court overruled [Appellant’s] objection to the
      testimony of Mowery because what he testified to was
      duplicative of what the jury would hear when the video of the
      interview at the Child Advocacy Center was played to the jury.

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      The Commonwealth’s error in calling Mowery to the stand was
      harmless. The statement “But I just told Mr. Mowery we had a
      secret” was made in the video that was played for the jury.
      [N.T., 1/21/16,] pg. 40, lines 22-23. It is very unlikely that had
      Mowery not testified that the outcome in the trial would have
      been different. Stating victim told me she had a secret does not
      establish any of the elements of the crimes for which [Appellant]
      was convicted and as victim referred to the secret repeatedly in
      the video that was admissible into evidence by Judge Lovecchio’s
      order the [Appellant] was not harmed by its improper admission.
      …

Pa.R.A.P. 1925(a) Opinion, 8/22/16, at 7.

      We agree with the trial court that any error in Mr. Mowery’s testimony

was harmless.     The jury heard that I.F. informed Sherry Moroz and Mr.

Mowery that she had a “secret” with Appellant.          N.T., 1/21/16, at 40.

Accordingly, we conclude that Appellant is not entitled to relief on this issue.

      For the reasons set forth above, we affirm Appellant’s judgment of

sentence.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/18/2017




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