J-S56005-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                :   IN THE SUPERIOR COURT OF
                                                :        PENNSYLVANIA
                       Appellee                 :
                                                :
                v.                              :
                                                :
    TODD RICHARD OYLER                          :
                                                :
                       Appellant                :        No. 396 MDA 2018

       Appeal from the Judgment of Sentence Entered October 17, 2017
                In the Court of Common Pleas of Adams County
            Criminal Division at No(s): CP-01-CR-0001246-2015


BEFORE: GANTMAN, P.J., KUNSELMAN, J., and MUSMANNO, J.

MEMORANDUM BY GANTMAN, P.J.:                   FILED: NOVEMBER 7, 2018

       Appellant, Todd Richard Oyler, appeals from the judgment of sentence

entered in the Adams County Court of Common Pleas, following his jury trial

convictions for two counts of involuntary deviate sexual intercourse with a

child and one count each of unlawful contact with a minor, aggravated

indecent assault, indecent assault, and corruption of minors.1 We affirm.

       The May 2, 2018 trial court opinion accurately set forth the facts and

procedural history of this case.2 Thus, we have no reason to restate them.


____________________________________________


1  18 Pa.C.S.A. §§ 3123(b);                6818(a)(1);   3125(a)(7);   3126(a)(7);
6301(a)(1)(i), respectively.

2We clarify that the court sentenced Appellant on October 17, 2017, to an
aggregate term of 16 to 40 years’ imprisonment. The court also designated
Appellant a sexually violent predator (“SVP”). On October 25, 2017, Appellant
J-S56005-18


        Appellant raises the following issues for our review:

           DID THE TRIAL COURT ABUSE ITS DISCRETION IN FAILING
           TO PROPERLY WEIGH THE EVIDENCE AND FAILING TO FIND
           THAT THE VERDICT WAS AGAINST THE WEIGHT OF THE
           EVIDENCE?

           WAS APPELLANT DEPRIVED OF HIS SUBSTANTIVE AND DUE
           PROCESS GUARANTEES TO CONFRONTATION AT HIS
           PRELIMINARY HEARING?

           WAS APPELLANT DEPRIVED OF HIS RIGHT TO A FAIR TRIAL
           WHERE THE TRIAL COURT REMOVED A JUROR ON THE
           FINAL DAY OF TRIAL WITHOUT DETERMINING WHETHER
           SHE COULD BE FAIR AND IMPARTIAL?

           WAS APPELLANT DEPRIVED OF HIS DUE PROCESS
           GUARANTEES WHEN THE COMMONWEALTH FAILED TO
           PROVIDE AN ADEQUATE BILL OF PARTICULARS UPON
           REQUEST, AND THE COURT FAILED TO SO ORDER?

(Appellant’s Brief at 5).3

        After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned order and opinion of the Honorable

Thomas R. Campbell and the opinion of the Honorable Shawn Wagner,

supporting their various rulings in this case, we conclude Appellant’s first,

second, and third issues merit no relief.            The trial court decisions



____________________________________________


sought an extension of time to file post-sentence motions, which the court
granted. Appellant timely filed post-sentence motions on Monday, November
27, 2017. On January 24, 2018, the court granted Appellant’s request and
vacated the SVP designation. The court denied post-sentence relief regarding
all other claims on February 5, 2018. Appellant timely filed a notice of appeal
on March 5, 2018.

3   For purposes of disposition, we have re-ordered some of Appellant’s issues.

                                           -2-
J-S56005-18


comprehensively discuss and properly dispose of those issues. (See Order of

Court, filed April 29, 2016, at 1-2 (J. Campbell); Trial Court Opinion, filed

October 6, 2016, at 6-7 (J. Campbell); Trial Court Opinion, filed May 2, 2018,

at 5-17 (J. Wagner) (finding: (1) Victim testified that Appellant’s abuse began

when she was about four years old in her mother’s and Appellant’s home in

York County; Victim said abuse continued until Victim was about six or seven

years old, including after Victim’s mother and Appellant had moved to Adams

County; Commonwealth established that Appellant engaged in numerous sex

acts with Victim between November 2007 and April 2015; Victim testified that

abuse tapered off when Appellant was diagnosed with cancer but started again

when Victim was in fifth grade; Victim said Appellant’s most recent assaults

occurred in October and April of fifth grade; verdict does not shock one’s sense

of justice and was not against weight of evidence; (2) right of confrontation

is trial right; Pa.R.Crim.P. 542(E) provides that hearsay evidence alone is

sufficient to establish prima facie case at preliminary hearing; Rule is

promulgated by Pennsylvania Supreme Court and deemed constitutional;

moreover, once defendant has been tried and convicted, any defect in

preliminary hearing is rendered immaterial;4 (3) during trial, Victim’s



____________________________________________


4 See Commonwealth v. Ricker, 120 A.3d 349 (Pa.Super. 2015), appeal
dismissed as improvidently granted, ___ Pa. ___, 170 A.3d 494 (2017)
(holding Rules of Criminal Procedure permit hearsay evidence alone to
establish prima facie case; accused does not have state or federal
constitutional right to confront witnesses against him at preliminary hearing).

                                           -3-
J-S56005-18


stepmother, who had been listed as potential witness but did not testify,

informed prosecutor that she recognized Juror #62 because they had

previously worked together; court questioned juror, who admitted she had

worked with Victim’s stepmother but did not initially recognize name when

court read list of potential witnesses during jury selection; juror admitted

Victim’s stepmother had reprimanded juror on one occasion during course of

employment; in abundance of caution, court dismissed juror; court did not

abuse its discretion in removing juror). Thus, as to Appellant’s first, second,

and third issues, we affirm on the basis of the order and opinion of Judge

Campbell and the opinion of Judge Wagner, of the Adams County Court of

Common Pleas.

      Regarding Appellant’s fourth issue concerning an adequate bill of

particulars:

         Preliminarily, we observe generally that issues not raised in
         a Rule 1925(b) statement will be deemed waived for review.
         An appellant’s concise statement must properly specify the
         error to be addressed on appeal. In other words, the Rule
         1925(b) statement must be specific enough for the trial
         court to identify and address the issue an appellant wishes
         to raise on appeal. A concise statement which is too vague
         to allow the court to identify the issues raised on appeal is
         the functional equivalent of no concise statement at all. The
         court’s review and legal analysis can be fatally impaired
         when the court has to guess at the issues raised. Thus, if a
         concise statement is too vague, the court may find waiver.

Commonwealth v. Hansley, 24 A.3d 410, 415 (Pa.Super. 2011), appeal

denied, 613 Pa. 642, 32 A.3d 1275 (2011) (internal citations and quotation

marks omitted).

                                     -4-
J-S56005-18


      Instantly, in his Rule 1925(b) statement, Appellant raised a denial of his

due process rights where he requested a bill of particulars from the

Commonwealth but “never received it.” On appeal, Appellant does not claim

the Commonwealth failed to respond to his request but asserts the

Commonwealth’s answer was inadequate.              Because Appellant did not

challenge the adequacy of the Commonwealth’s response in his Rule 1925(b)

statement, the trial court did not address that precise claim of error in its

opinion. Consequently, Appellant’s fourth issue is waived for vagueness in his

concise statement. See id.

      Moreover, Pennsylvania Rule of Criminal Procedure 572 provides:

         Rule 572. Bill of Particulars

         (A) A request for a bill of particulars shall be served in
         writing by the defendant upon the attorney for the
         Commonwealth within 7 days following arraignment. The
         request shall promptly be filed and served as provided in
         Rule 576.

         (B) The request shall set forth the specific particulars sought
         by the defendant, and the reasons why the particulars are
         requested.

         (C) Upon failure or refusal of the attorney for the
         Commonwealth to furnish a bill of particulars after service
         of a request, the defendant may make written motion for
         relief to the court within 7 days after such failure or refusal.
         If further particulars are desired after an original bill of
         particulars has been furnished, a motion therefor may be
         made to the court within 5 days after the original bill is
         furnished.

         (D) When a motion for relief is made, the court may make
         such order as it deems necessary in the interests of justice.


                                      -5-
J-S56005-18


Pa.R.Crim.P. 572.

     Here, Appellant filed a request for a bill of particulars on March 9, 2016.

The Commonwealth responded on March 15, 2016.               Appellant did not

challenge the adequacy of the Commonwealth’s response by filing a motion

with the court as set forth in Rule 572(C). Therefore, Appellant waived his

claim on this ground as well. Accordingly, we affirm.

     Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/7/2018




                                     -6-
                                                                            QORIGINAL
                                                                             Circulated 10/22/2018 11:32 AM


                   IN THE COURT OF COMMON PLEAS OF ADAMS COUNTY, PENNSYLVANIA
                                            CRIMINAL

                   COMMONWEALTH OF PENNSYLVANIA                          CP-01-CR-1246-2015

                                       VS.
               3

               4               TODD R. OYLER

               5
                                                 ORDER OF COURT
               6

               7
                         AND NOW, this 29th day of April, 2016·, after argument on D�i:!ndant's
                                                                                          m
               8
                   Omnibus Pre-Trial Motion, it is hereby Ordered that the Motion is Denied in its
               9
                   entirety. Defense filed a Motion for Writ of Habeas Corpus, Motion to Quash the
              10
                   Criminal Information based upon alleged lack of prima facia case and requested
              11


              12
                   a remand of proceedings to the Magisterial District Court for preliminary hearing

              13   based on argument that the only testimony presented at the original preliminary

              14   hearing was hearsay testimony from the Affiant. The evidence presented to this
              15
                   Court for review consisted solely of a transcript of the preliminary hearing held
              16
                   before Magisterial District Judge Tony Little on November 24, 2015.
              17
                          Based upon review of that transcript, the evidence presented by the
I'!'          18
i
                   Commonwealth is sufficient to establish a prima facia case on all charges.
�             19
�0
z
w
Q.
              20   Accordingly, both the Motion for Writ of Habeas Corpus and the Motion to Quash

              21   the Criminal information are denied.
i:::.
a:
12            22         With regard to Defendant's request for remand for a new preliminary
              23
                   hearing, it is noted that the Pennsylvania Rule of Criminal Procedure 542(E)
              24
                   promulgated by the Pennsylvania Supreme Court, provides that hearsay
              25
                   evidence alone is sufficient to establish a prima facia case at a preliminary

                   hearing. As the Rule is promulgated by the Pennsylvania Supreme Court, it is


        t.)
                           deemed     to   be constitutional. Further, in Commonwealth v. Ricker, 120 A.3d

                       1   349 (July 17, 2015), the Pennsylvania Superior Court has established appellate

---�------
         - -2� -aath·o·rity--i·n�thi·s-re�rd:---A!thua-gh·�th�e=·snptf:frrrereoort=mrs-grnn·m-a-a115ca'tWITI-· -�-----
                   3·
                           that case, at the time of the preliminary hearing, as well as the time of the
                   4
                           omnibus pre-trial hearing, and the date of this Order, the Superior Court's
                   5
                           published Opinion in· Ricker is good and binding law. ·
                   6
                                   Accordingly, the evidence presented at �he original preliminary hearing is
                   7

                   8
                           sufficient to establish a prima facia case.                         Defendant is not entitled to an

                   9       additional preliminary hearing as this Court will not allow for fishing expeditions

                  10       in our Magisterial District Courts.
                  11
                                   For all of the forgoing reasons, Defendant's Omnibus Pre-Trial Motion is
                  12
                           denied in its entirety.
                  13

                  14

                  15

                  16

                  17                                                         BY THE COURT:
    .
                                                                              �(LQ,�J-
    �
    'I'           18
    f]i
    0
    !             19
                                                                             THOMAS R. CAMPBELL
    �
    s...          20                                                         Judge

                  21
    I
    :!,                    Megan C. Zei, Esquire
    �             22       Gerald A. Lord, Esquire
                           Samuel A. Gates, Esquire

                                  1op;es c:m;;.n�lh.G to.. .DAi, �
                  23
                           wlc C    ,    1• !!, '!!,,,. ,a. d                        r-«, � \..\o("'L c:::,�
                                                                           Gu.>-e:, ,�                     n33'\
                                                                       c                 -
                                                                                                  \....\(],.sc:,J:'.r. ><Pl.
                 24
                                   DPS, ACACC, Sh�riff,                         c.:,..       \...0((). �-
                                                                                                              l..\s    ts-\    D.:)\� �\
                 25                    P.D. • Electronic                                 ·        '            �-� �-t'\           n\,\c:i\

                                on�1.-1v \ \)'2£\CID,        -\t'oo)
                                        Date        Time   . �             rno j L:>.\-\'\e.. - e..�� \
                                                                                 QORIGINAL
                                                                                  Circulated 10/22/2018 11:32 AM




                  IN THE COURT OF COMMON PLEAS OF ADAMS COUNTY, PENNSYLVANIA
                                           CRIMINAL
                                                                                                          --�--
                                                                                                              ---�---�--·····"··
.�,---�---·--··GE>MM0NWE'Al:''fH�eF�PeNNSYt;VANIA----�--·-�·-···-�-cp:o"1:C"R=1·2'4·6:2·o"f5'�-�
     .                                      .
                                                VS.
                                                             .                                 .   g
                                                                                                   --·!
                                                                                                            ::··d] -
                                                                                                                 -�
                                                                                                    I
                                                                                                   c,
                              TODD RICHARD OYLER
                                                                                                   t.1


                                          . OPINION PURSUANT TO Pa. R.A.P. 1925{a)
                                                                                                   C)


                      Appellant, Todd Richard Oyler, appeals from this Court's August 2, 2016 Order

            denying Appellant's Motion to Continue Trial Generally. For the reasons set forth below,

            it is respectfully requested that this Court's August 2, 2016 Order be affirmed.

                      Appellant is charged with two counts of Involuntary Deviate Sexual Intercourse

            with a Child, a felony of the first degree1; two counts of Unlawful Contact with a Minor, a

            felony_ of the firstdegree2; one count of Unlawful Contact with a Minor, a felony of the

            third degree3; one count of Aggravated Indecent Assault of a Child, a felony of the first

            degree4; one count of Indecent Assault of a Person Less than 13 Years of Age, a felony

            of the third degree5; one count of Corruption of Minors, a felony of the third degree6; one

            count of Corruption of Minors, a misdemeanor of the first degree7; one count of Indecent

            Exposure, a misdemeanor of the first degree8; one count of Indecent Assault - statutory,

            a misdemeanor of the second degree9; and one count of open lewdness, a

            misdemeanor of the third degree 1°.


            1
               18Pa. C.S. § 3123 (B)
            1
               18 Pa. C. S. § 6318(a)(1)
            J 18 Pa. C.S. § 63 I 8(a)(l)
            4
               18 Pa. C.S. § 3125(b)
            5
               18 Pa. C.S. § 3 I 26(a)(7)
            6
               18 Pa. C.S. § 6301(a)(l)(ii)
            7
               18 Pa. C.S. § 630 ! (a)( I )(i)
            8
               J8 Pa. C.S. § 3127(a)
            9
               18 Pa. C.S. § 3 I 26(a)(7)
            10
                18 Pa. C.S. § 5901

                                                                 1
                       On November 24, 2015, a preliminary hearing was held in this matter before

�--�
   - ----·    . . . . ,.---���.. . ___..___•.... __. . . . __�--·._. :. . .·-�...................--� ,---·-- --··��---��...
       Magisterial District Judge Tony Little. At Appellant's preliminary hearing, the
                                                                ..   _.....,..                         ...      ..                        ---.,_.� ....   --
               Commonwealth only presented hearsay testimony of statements made by M.L, the

              juvenile victim in this case. All charges were held for court. Appellant filed an Omnibus

               Pre-Trial Motion on March 9, 2016 which included a Habeas Corpus Motion, a Motion to

               Quash or Dismiss the Criminal Information, and a Motion for Remand for Preliminary

               Hearing. This Court denied Appellant's Omnibus Pre-trial Motion in its entirety on April

               29, 2016. Appellant filed a second Omnibus Pre-Trial Motion on May 10, 2016 seeking

               this Court to preclude the Commonwealth from prosecuting Appellant for Unlawful

               Contact With a Minor.11 This Court denied Appellant's Omnibus Pretrial Motion in its

               entirety on May 19, 2016. On June 23, 2016, the Commonwealth moved to admit out of

               court statements under the Tender Years Hearsay Exception.12 This Court granted that

               motion on July 15, 2016. The Appellant then moved to continue trial generally. On

               August 2, 2016, this Court denied Appellant's Motion to Continue Trial Generally.

               Appellant then filed his Notice of Appeal and Concise Statement on September 1, 2016

               and September 22, 2016 respectively13.

                        In his Concise Statement, Appellant alleges that this Court erred by denying his

               Motion to Continue Trial Generally pending the Supreme Court of Pennsylvania's

               decision in Commonwealth v. Ricker, 120 A.3d 349 (Pa. Super. 2015). Appellant also



               11
                  18 Pa. C.S. § 6318(c)
               12
                  42 Pa. C.S. § 5985.1
               13 It is noted that
                                   Appellant has failed to appeal this Court's April 29, 2016 Order or its July 15, 2016 Order, denying
               Appellant's Omnibus Pre-trial Motions in which Appellant sought remand for a preliminary hearing and attempted
               to prevent the Commonwealth from admitting M.L's hearsay statements under the Tender Years Hearsay Exception.
               This Court further notes that as its July 15, 2016 Order states, M. L. was under the age of twelve, made statements
               describing an offense enumerated in 18 Pa. C.S. Chapter 31, and her statements provided sufficient indicia of
               reliability. Under the Tender Years Hearsay Exception, M.L. 's statements will be admissible at trial.

                                                                                 2
              argues that his constitutional right to confront and cross-examine his accuser at his

              preliminary hearing was violated.
l;..>-6-......... ..�_._,....._,_,-�-�.,,...�-·-
                                               .-·-��
                                                  ·   .. --�·-�-.��   ..... ,.y� ...........·�.,-•• _.,,,,,µ.,...-:.r-·   ·.-llwa��-   ...........,.;�   .   .   .•   .   ..   -




                      Appellant first alleges that this Court erred by denying his Motion to Continue

              Trial Generally until the Supreme Court of Pennsylvania renders an opinion in

              Commonwealth        v. Ricker. "The Superior Court shall have exclusive appellate
              jurisdiction of all appeals from final orders of the courts of common pleas." 42 Pa.

              C.S.A. § 742. A final order is an order which "disposes of all claims and of all parties; ...

              or is entered as a final order pursuant to paragraph (c) of this rule."14 A final order puts

              "litigants out of court by either ending the litigation or entirely disposing of the case."

              Commonwealth v. Jackson, 849 A.2d 1254, 1256 (Pa. Super. 2004) (quoting

              Commonwealth v. Rosario, 615 A.2d 740, 743 (Pa. Super. 1992)). An order that does

              not end the litigation or dispose of a case is an interlocutory order. Rosario, 615 A.2d at

              743 (quashing an appeal of an order that was not final and therefore an interlocutory

              order). "Ordinarily all pre-trial orders are considered interlocutory and not appealable."

              Commonwealth v. Bennett, 345 A.2d 754, 755 (Pa. Super. 1975) (citing

              Commonwealth v. Rucco, 324 A.2d 388, 389 (Pa. Super. 1974)). Interlocutory orders

              may be appealed15 as of right16 or by permission 17. An appellant may appeal an

              interlocutory order by permission by seeking certification from the lower court within

              thirty days of the lower court's issuance of the order in question.18 An appellant may




              14
                   See PA. R. A. P. 341
              15
                  42,Pa. C.S.A. § 5105(c)
              1
                '' PA. R. A. P. 31 i
              17
                  PA.R.A.P. l311 andPA.R.A.P.312
              18
                   Pa. R. A. P. 1311

                                                               3
 request that the lower court add the language pursuant to42 Pa. C.S.A. § 702 (b)19 to

the order being challenged.20

          [The Pennsylvania Superior Court's] appellate jurisdiction extends to Non-final
         orders only where: (a) an appeal from an interlocutory order is authorized by law;
         (b) a lower court has certified the issue involved in the interlocutory order as 'a
         controlling question of law as to which there is substantial ground for difference
         of opinion and that an immediate appeal from the order may materially advance
         the ultimate termination.of the matter; or (c) the appellee has waived an objection
         to the jurisdiction of the court.


Rucco, 324 A.2d at 389 (internal quotation marks and citations omitted).

         Generally in criminal cases, "a defendant can appeal only from a final judgment

of sentence, and an appeal from any prior Order or judgment will be quashed."

Commonwealth v. Swanson, 225 A.2d 231, 232 (Pa. 1967).

         Unless 'exceptional circumstances' are involved, defendants are prohibited from
         appealing interlocutory orders in criminal cases. Such exceptional circumstances
         arise (1) where an appeal is necessary to prevent a great injustice to the
         defendant, or (2) where an issue of basic human rights is involved, or (3) where
         an issue of great public importance is involved.


Id. at 232. See also Ricker, 120 A.3d at 353.

         This Court's Order denying Appellant's Motion to Continue Trial Generally is not

a final order. The Order did not end the litigation or dispose of the case. Therefore,

Appellant has filed an appeal from an interlocutory order. Because a Motion to Continue

Trial Generally is not enumerated as an interlocutory order that is appealable as of




19
  "When a court or other government unit, in making an interlocutory order in a matter in which its final order
would be within the jurisdiction of an appellate court, shall be of the opinion that such order involves a controlling
question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from
the order may materially advance the ultimate termination of the matter, it shall so state in such order. The appellate
court may thereupon, in its discretion, permit an appeal to be taken from such interlocutory order." 42 Pa. C.S.A. §
702 (b).
  Pa. R. A. P. 1311
-20



                                                           4
right21, Appellant is required to file a petition for permission to appeal to the

Pennsylvania Superior Court.22 To date, Appellant has failed to seek certification and

have this Court's Order amended to include the language specified in 42 Pa. C.S.A. §

702. Appellant failed to follow appellate procedure under Pa. R. A. P. 1311 and 42 Pa.

C.S.A. § 702, and the thirty day window to do so has expired.23

           The Pennsylvania Superior Court has quashed such appeals in the past. See

Commonwealth v. Fleming, 794 A.2d 385, (Pa. Super. 2002) (quashing an appeal in

which appellant failed to file a petition for permission to file an interlocutory appeal));

Commonwealth v. Wills, 476 A.2d 1362 (Pa. Super. 1984) (quashing an appeal

because appellants failed to petition for permission to appeal, as required by Pa. R. A.

P. 1311)); Rucco, 324 A.2d at 390 (quashing an appeal of an interlocutory order

denying relief of an alleged violation of the '180 day rule').

           Appellant's appeal cannot be legitimized by exceptional circumstances either. A

motion to continue trial generally does not fit into any of the categories that would

warrant invoking the exceptional circumstances doctrine. Appellant has not raised an

issue in his appeal claiming that he has suffered a great injustice, a basic human right is

involved, or an issue of great public importance is involved. Therefore, the exceptional

circumstances doctrine does not apply to Appellant's appeal.

           Appellant's appeal of the interlocutory order is not as of right, he has failed to

comply with Pa. R. A. P. 1311 and 42 Pa. C.S.A. § 702, and a motion to continue trial

generally does not warrant the application of the exceptional circumstances doctrine.


21
     See PA. R. A. P. 311
22
     See PA. R. A. P. 1311 and PA. R. A. P. 312
2
 '   This Court filed the Order.in question on August 2, 2016. Appellant would have had to file for certification on or
before September I, 2016,

                                                             5
 Therefore, Appellant's appeal should be quashed. Even if Appellant properly perfected

 his appeal, his claims are meritless.

         Appellant next alleges that his constitutional right to confront his accuser at his

 preliminary hearing was violated. Both the United States Constitution and the

 Pennsylvania Constitution provide that a defendant has the right to confront the

 witnesses against him in criminal prosecutions.24 U.S. CONST. amend. VI; PA. CONST.

 art. 1, § 9. The right of confrontation triggers when the prosecution seeks to admit

 testimonial evidence against the accused, and the right operates to bar admission of the

 testimonial statements of witnesses who were not called            at trial unless the witness was
 unavailable at trial and the defendant had a prior opportunity to cross-examine the

· witness. Crawford v. Washington, 541 U.S. 36, 54 (2004). The United States

 Supreme Court has held that "the right of confrontation is a trial right." Pennsylvania             v.
 Ritchie, 480 U.S. 39, 53 (1987). See also Commonwealth v. Herrick, 660 A.2d 51, 60

 (Pa. Super. 1995).

         Pennsylvania Rule of Criminal Procedure 542(E) promulgated by the

 Pennsylvania Supreme Court, provides that hearsay evidence alone is sufficient to

 establish a prima facie case at a preliminary hearing.25 As the Rule is promulgated by

 the Supreme Court, it is deemed to be constitutional. Further, in Commonwealth v.

 Ricker, 120 A.3d 349, the Pennsylvania Superior Court has established appellate

 authority in this regard.



 24
     The Sixth Amendment applies to the States via the Fourteenth Amendment. Melendez-Diaz v.
 Massachusetts, 557 U.S. 305, 309 (2009) (citing Pointer v. Texas, 380 U.S. 400, 403 (1965)). A criminal
 defendant's rights under the Confrontation Clause of the Pennsylvania Constitution are coextensive with
 those guaranteed by the Sixth Amendment of the United States Constitution. Commonwealth v. Geiger,
 944 A.2d 85, 97 n.6 (Pa. Super. 2008).
 25
    PA. R. CRIM. P. 542(E)

                                                    6
                                                           Here, Appellant argues that his constitutional right to confront his accuser was

                                      violated and that right will be lost forever if he is forced to go to trial before the
,.,   ...... -s ...... _..;:·.-,.· ............·�--    · ��w,_···_.
                                                  · · ·-  ·         __.."'""""'� ..... --�·«... .:.;....,v-x�... ··-·�.._· • .i..,..o.;,.�·-..,. .,•..... -........ -� .........   ....,_.·· .. �.._ .• ·s�·-·-----�-�··._._4� ...,... ; .... ,   ....._,�-- ....._..�-"·'1......... _,.,._.:.:....·.....,,.._ ...,.•. _..�......._.._..... ,.-........._�-·....; ...:,....•.. , .•... ,.• , ..


                                       Pennsylvania Supreme Court makes its decision in Ricker. Although the Supreme

                                      Court has gr�nted allocator in that case, at the time of the preliminary hearing, at the

                                      time of the omnibus pretrial hearing, and currently, the Superior Court's published

                                      Opinion in Ricker was good and binding law. This Court did not err in relying on Ricker

                                      and its precedents. Currently, the right to confront witnesses is                                                                                                                            a trial right; the
                                       Pennsylvania Supreme Court has not extended that right.

                                                          Accordingly, the hearsay evidence presented at the original preliminary hearing

                                      did not violate Appellant's right to confront the witnesses against him as the law stood at

                                      that point in time and as it stands now. Defendant is not entitled                                                                                                                              to an additional
                                      preliminary hearing as this Court will not ailow for fishing expeditions in our Magisterial

                                      District courts.

                                                           Therefore, for all the reasons stated herein, it is respectfully requested that this

                                      Court's August 2, 2016 Order denying Appellant's Motion to Continue Trial Generally be

                                      affirmed.




                                                                                                                                                                                                      �b
                                                                                                                                                                                                        BY THE COURT:



                                      DATE: October 6, 2016                                                                                                                                             THOMAS R. CAMPBELL
                                                        COPIES                                                                                                                                          Judge

                                                                                                  1-0riginal                                                                                           lDhh�
                                                                                                . 1-Court Administrator '-..,.
                                                                                                                              � - �
                                                                                                  1-Megan C. Zei, Esquire            .           1·.si�
                                                                                                  t-Gerald A. Lord, Esquire/�· ·. ··
                                                                                                  1-Samuel A. Gates, Esquire .-.,      �"'(��)�{?A \'12>?>\
                                                                                                  1-Adams County Legal Journal ·�Q)'\\�
                                                                                                  1-District & County Reports --- -� H : ...
                                                                                                                                             r-.
                                                                                                  t-rnedia copy -                      �
                                                                            Circulated 10/22/2018 11:32 AM




       IN THE COURT OF COMMON PLEAS OF ADAMS COUNTY, PENNSYLVANIA
                                CRIMINAL

                                                                                         - �····[ Eter
                                                                                         ��
                                                                                         c:::c:,   ...   j



    COMMONWEALTH OF PENNSYLVANIA                                   CP-01-CR-1246-201:&
                                                                                         >         �--.,-i,
                                                                                                        :.j
                                                                                         -<:       :.,'._:- j
                        vs.                                                              N
                                                                                          I        - ·,          :
                                                                                                                r·
           TODD RICHARD OYLER                                                                                   c;
                                                                                         -..
                       OPINION PURSUANT TO Pa. R.A.P.1925(a)

           Appellant, Todd Richard Oyler (hereinafter referred to as "Appellant"), appeals

    the trial verdict of August 2, 2017, this Court's judgment of sentence of October 17,

    2017 and this Court's Order of Court dated February 5, 2018 denying Appellant's

    Post-Sentence Motion for Reconsideration. For the reasons set forth herein, it is

    respectfully requested this Court's judgment of sentence and Order denying

    Appellant's post-sentence motion be affirmed.

          Testimony developed at the two-day jury trial held August 1, 2017 and August

    2, 2017 revealed that the following relevant events occurred. M.L. (hereinafter

    "Victim") was born November        2003 and was      \3   l   years old on the dates of

    trial. The Victim testified that her Dad had majority custody and she would go to her

    Mom and Appellant's house every weekend. The Victim testified that her Mom and

    Appellant initially lived in an apartment in Hanover (York County) and then moved to

    a house in New Oxford (Adams County). The Victim identified the Appellant at trial as

    Todd Oyler, her stepfather.

          The Victim testified that Appellant sexually abused her over a number of years.

    The Victim testified that the abuse started when she was four years old and

    continued until she was six or seven. The Victim testified that the sexuai abuse


                                              1


0
started at her Mom and Appellant's apartment in Hanover and continued when her

Mom and Appellant moved to the house in New Oxford. The Victim testified that the

sexual abuse happened every weekend when she visited her Morn and Appellant and

would occur in her bedroom at night while everyone was asleep.

        The Victim testified that Appellant called his penis "dragon". The Victim

testified Appellant made the Victim lick his "dragon", Appellant would lick the Victim's

vaginal area and Appellant would make the Victim sit on top of him while he was

laying down and make the Victim rub her vaginal area across Appellant's "dragon".

The Victim testified the Appellant would put his "dragon" inside of her mouth and

Appellant's tongue would lick the crack of the Victim's vaginal area. Appellant also

touched the breasts and vaginal area of the Victim with his hands. The Vtctirn testified

Appellant put his fingers in the hole of the Victim's vaginal area and told the Victim "it

had to stretch", referring to the Victim's vagina.

       The Victim testified she did not remember the sexual acts occurring when she

was eight or nine. The Victim also testified these sexual acts stopped after Appellant

was diagnosed with cancer, which occurred when the Victim was in fourth grade. The

Victim testified that the touching resumed when the Victim was in fifth grade, which

coincided with Appellant recovering from cancer. The Victim testified the last abuse

happened in October of fifth grade and April of fifth grade and Appellant touched her

breasts, butt and legs.

       The Victim testified that her friend L.D. was the first person the Victim told

concerning the Appellant sexuaily abusing her. This occurred while the Victim and

LD. were in fifth grade. L.D. testified that the Victim told her in April of fifth grade that



                                              2
her stepfather had sex with her and touched her private areas. L.D. told her parents

about the abuse that night. Erin Driesbach testified that in April 2015 she worked for

Adams County Children and Youth Services. Ms. Driesbach had received a referral

concerning sexual abuse of the Victim and interviewed the Victim at her school in

New Oxford on April 10, 2015.

       Other trial testimony revealed that Appellant was forty-nine years old on

August 1, 2017. Appellant started dating Christy Oyler, the mother of the Victim, in

2005 and moved in with the Victim's mother              tn         __ -, Hanover, York

County, Pennsylvania in October 2005. Appellant married the Victim's mother in

February 2007. Appellant and Christy Oyler moved to ·                    , New Oxford,

Adams County, Pennsylvania on November 1, 2010. The Victim turned seven              �n ·
November:     ·�\e;. Appellant was diagnosed with cancer June 2013.

       The jury convicted Appellant of two counts of involuntary deviate sexual

intercourse, unlawful contact with a minor, aggravated indecent assault, indecent

assault of a child under the age of thirteen and corruption of minors. This Court

ordered a pre-sentence investigation and, based on the charges, an assessment by

the Sexual Offenders Assessment Board. On October 17, 2017 this Court sentenced

Appeliant to an aggregate sentence of sixteen years to forty years in a state

correctional institution. Appellant's appellate counsel (Assistant Public Defender Sean

A. Mott) filed a Post-Sentence Motion for Reconsideration on November 27, 2017.

      On February 5, 2018 this Court denied Appellant's Post-Sentence Motion for

Reconsideration. Appellant filed his Notice of Appeal with the Superior Court on

March 5, 2018. On March 5, 2018 Appeliant was ordered to file a Concise Statement



                                           3
of Matters Complained of on Appeal. Appellant filed Concise Statement of Matters

Complained of on Appeal on March 26, 2018.

       Appellants Concise Statement of Matters Complained of on Appeal consisted

of the following issues:

       1.     The Defendant was deprived of his right to confrontation under the state

              and federal Constitutions at his preliminary hearing when the

              Commonwealth only presented testimonial hearsay evidence at the

              preliminary through a police officer who was not a witness to the alleged

              events.

      2.      The Defendant was denied his due process guarantees when he

              requested a bill of particulars pursuant to Pa.R.Crim.P. 572 from the

              Commonwealth and subsequent motion to the Court, but never

              received it, and acts in York County were alleged for the first time at

              trial, for which Defendant was unprepared and which likely affected the

             jury's verdict.

      3.     The Court abused its discretion when it removed a juror, Susan Lang,

             on the second day of trial without examining the juror's ability to be fair

             and impartial.

      4.     The evidence presented at trial was insufficient as a matter of law to

             convict Defendant at trial.

      5.     The verdict rendered at trial is contrary to the weight of the evidence.




                                           4
                                       LEGAL STANDARD

            The standard of review on a sufficiency of the evidence claim is "whether the

evidence at trial, and all reasonable inferences derived therefrom, when viewed in the

light most favorable to the Commonwealth as verdict [·] winner, are sufficient to

establish all elements of the offense beyond a reasonable doubt." Commonwealth v.

Jones, 904 A.2d 24, 26 (Pa. Super. 2006) (citation omitted) (internal quotations

omitted). "'[T]he facts and circumstances established by the Commonwealth need not

preclude every possibility of innocence."' Commonwealth v. Hartzell, 988 A.2d 141,

143 (Pa. Super. 2009) (quoting Commonwealth v. McClendon, 874 A.2d 1223,

1228-1229 (Pa. Super. 2005)). "Any doubts regarding a defendant's guilt may be

resolved by the fact-finder unless the evidence is so weak and inconclusive that as a

matter of law no probability of fact may be drawn from the combined circumstances ..

. . " Id.

            "The Commonwealth may sustain its burden of proving every element of the

crime beyond a reasonable doubt by means of wholly circumstantial evidence."'

Commonwealth v. Bowen, 55 A.3d 1254, 1260 (Pa. Super. 2012) (quoting

Commonwealth v. Muniz, 5 A.3d 345, 348 (Pa. Super. 2010)). '"Finally, the trier of

fact while passing upon the credibility of witnesses and the weight of the evidence

produced, is free to believe all, part or none of the evidence."' Id. "In applying the

above test, we may not weigh the evidence and substitute our judgment for the fact-

finder." Hartzell, 988 A.2d at 143 (internal quotations omitted).

            '"A verdict is against the weight of the evidence only when the jury's verdict is

so contrary to the evidence as to shock one's sense of justice.'" Commonwealth v.



                                                5
Rivera, 983 A.2d 1211, 1225 (Pa. 2009) (quoting Commonwealth v. VanDivner,

962 A.2d 1170, 1177 (Pa. 2009)). "[A] determination [of whether a jury's verdict is

against the weight of the evidence] is generally committed to the discretion of the trial

court." Commonwealth v. Bellini, 482 A.2d 997, 999 (Pa. Super. 1984). "A new trial

should not be granted because of a mere conflict in testimony or because a judge on

the same facts would have arrived at a different conclusion." Rivera, 983 A.2d at

1225 (internal quotations omitted). The critical question is whether or not "certain

facts are so clearly of greater weight that to ignore them, or to give them equal weight

with all the facts, is to deny justice." Id.


                                        DISCUSSION

I.     Sufficiency of the Evidence and Weight of the Evidence

       a.      Involuntary Deviate Sexual Intercourse with a Child

       "A person commits involuntary deviate sexual intercourse with a child, a felony

of the first degree, when the person engages in deviate sexual intercourse with a

complainant who is less than thirteen years of age." 18 Pa. C.S. § 3123(b). Deviate

sexual intercourse is defined as "[s]exual intercourse per os or per anus between

human beings .... The term also includes penetration, however slight, of the genitals

or anus of another person with a foreign object for any purpose other than good faith

medical, hygenic or law enforcement procedures." 18 Pa. C.S. § 3101.

       The criminal information alleges that the incidents at issue occurred between

November 1, 2007 and April 8, 2015. The Victim testified her birthday is November

     2003. The Victim testified that the conduct establishing the crime of involuntary

deviate sexual intercourse occurred when she was between the ages of four and


                                               6
seven. The Victim testified this conduct started when she was four at her Mother and

Appellant's apartment in Hanover. The Victim testified that this conduct continued

until she was six or seven. The Victim also testified that this conduct continued after

the Victim's Mother and Appellant moved to the house in New Oxford, located within

Adams County.

       The Commonwealth also set forth evidence from which the jury could

determine deviate sexual intercourse between the Victim and Appellant occurred. For

example, the Victim testified that Appellant would have the Victim lick his "dragon"

and would put his penis in the Victim's mouth and Appellant would lick Victim's

vaginal area. She also testified there was penetration as Appellant's penis was inside

her mouth and Appellant's tongue was inside her vagina.

       Importantly, '"the uncorroborated testimony of the complaining witness is

sufficient to convict a defendant of sexual offenses."' Commonwealth v. Lyons, 833

A.2d 245, 258 (Pa. Super. 2003) (quoting Commonwealth v. Bishop, 742 A.2d 178,

186 (Pa. Super. 1999)).

      A review of the evidence, in the light most favorable to the Commonwealth as

the verdict winner, shows Appellant's sufficiency of the evidence claim for the

involuntary deviate sexual intercourse charge is meritless.

      Furthermore, Appellant's claim that the trial verdict is contrary to the weight of

the evidence has no merit. Based on all the evidence presented, the verdict does not

shock one's sense of justice.




                                           7
        b.     Unlawful Contact with a Minor

        A person commits unlawful contact with a minor "if he is intentionally in contact

 with a minor ... for the purpose of engaging in an activity prohibited under any of the

 following, and either the person initiating the contact or the person being contacted is

within this Commonwealth: (1) Any of the offenses enumerated in Chapter 31

 (relating to sexual offenses)." 18 Pa. C.S. § 6318(a) (1). In regards to the grading of

the crime, the statute states "[a] violation of subsection (a) is: (1) an offense of the

same grade and degree as the most serious underlying offense in subsection (a) for

which the defendant contacted the minor; or (2) a felony of the third degree;

whichever is greater." 18 Pa. C.S. § 6318(b) (1)-(2).

       The Commonwealth           presented    testimony which established Appellant

continuously entered the Victim's bedroom at night while the Victim was sleeping and

intentionally contacted the Victim so he could engage in sexual acts with her. The

Commonwealth established that between November 2007 and April 2015, Appellant

had direct contact with the Victim for the sole purpose of engaging in sexual acts with

her. The Victim testified that almost every weekend Appellant would come to her

bedroom, come in, wake her up, and put his "dragon" (penis) in her mouth and lick

and penetrate her vagina with his tongue, while Victim was lying down. The Victim

also testified that Appellant would make the Victim sit on top of him while he was

lying down and make the Victim rub her vaginal area across Appellant's "dragon" .

. Appellant also touched the breasts and vaginal area of the Victim with his hands. The

Victim testified Appellant put his fingers in the hole of the Victim's vaginal area and

told the Victim "it had to stretch", referring to the Victim's vagina.



                                              8
       The Commonwealth also presented the Victim's testimony that these sexual

incidents occurred -· _'tin.             New Oxford, Adams County, Pennsylvania.

Appellant and the Victim's Mother started living there on November 1, 2010 while the

Victim was six. The Victim visited the house in New Oxford every weekend, starting

when the Victim was six. Thus, both the person "initiating the contact [and] the person

being contacted" were located within the state of Pennsylvania, and within Adams

County.

       A review of the evidence, in the light most favorable to the Commonwealth as

verdict winner, establishes Appellant's claim is meritless. The Commonwealth

presented sufficient evidence from which the jury could infer Appellant intentionally

contacted the Victim, a minor, for the purpose of engaging in sexual activities in

violation of 18 Pa. C.S. § 3123(b), 18 Pa. C.S. § 3125(a)(7), and 18 Pa. C.S. §

3126(a)(3).

       Furthermore, Appellant's claim that the verdict rendered at trial is contrary to

the weight of the evidence has no merit. Based on all the evidence presented, the

verdict does not shock one's sense of justice.

       c.     Aggravated Indecent Assault

      A person commits aggravated indecent assault, a felony of the second degree,

when "a person who engages in penetration however slight, of the genitals or anus of

a complainant with a part of the person's body for any purpose other than good faith

medical, hygienic or law enforcement procedures commits aggravated indecent

assault if the complainant is less than thirteen years of age." 18 Pa. C.S. §

3125(a)(7).



                                           9
       The criminal information alleges that the incidents at issue occurred between

November 1, 2007 and April 8, 2015. The Victim testified her birthday is November

   . 2003. The Victim testified that the conduct establishing the crime of aggravated

indecent assault occurred when she was between the ages of four and seven. The

Victim testified this conduct started when she was four at her Mother and Appellant's

apartment in Hanover. The Victim testified that this conduct continued until she was

six or seven. The Victim also testified that this conduct continued after the Victim's

Mother and Appellant moved to the house in New Oxford, located within Adams

County.

       The Commonwealth also set forth evidence from which the jury could

determine Appellant engaged in penetration of the vagina of the Victim for any

purpose other than good faith medical, hygienic or law enforcement procedures. For

example, the Victim testified that Appellant touched her vaginal area with his hands,

put his fingers in the hole of the Victim's vagina and told the Victim "it had to stretch",

referring to the Victim's vagina.

       A review of the evidence, in the light most favorable to the Commonwealth as

the verdict winner, shows Appellant's sufficiency of the evidence claim for the

aggravated indecent assault charge is meritless.

       Furthermore, Appellant's claim that the verdict rendered at trial is contrary to

the weight of the evidence has no merit. Based on all the evidence presented, the

verdict does not shock one's sense of justice.




                                            10
         d.    Indecent Assault

         "A person is guilty of indecent assault if the person has indecent contact with

the complainant, causes the complainant to have indecent contact with the

person ... for the purpose of arousing sexual desire in the person or the complainant

and the complainant is less than thirteen years of age." 18 Pa. C.S. § 3126(a)(7). In

regards to the grading of the crime, the statute states if any of the following apply, it is

a felony of the third degree:     "(ii) there has been a course of conduct of indecent

assault by the person; or (iii) the indecent assault was committed by touching the

complainant's sexual or intimate parts with sexual or intimate parts of the person; or

(iv) the indecent assault is committed by touching the person's sexual or intimate

parts with the complainant's sexual or intimate parts." 18 Pa. C.S. § 3126(b)(3)(ii),

(iii), (Iv).

         The criminal information alleges that the incidents at issue occurred between

November 1, 2007 and April 8, 2015. The Victim testified her birthday is November

     2003. The Victim testified that the conduct establishing the crime of indecent

assault started when the Victim was four and continued unti! Appellant was

diagnosed with cancer. The Victim testified that this conduct continued after the

Victim's Mother and Appellant moved to the house in New Oxford, located within

Adams County. Appellant's cancer diagnosis occurred when the Victim was going

into fourth grade. The Victim testified the indecent assault started again when the

Victim was in fifth grade. The Victim testified the last incidents of indecent assault

occurred in October and April of fifth grade and Appellant touched her breasts, butt

and legs.



                                             11
       A review of the evidence, in the light most favorable to the Commonwealth as

the verdict winner, shows Appellant's sufficiency of the evidence claim for the

indecent assault charge is meritless.

       Furthermore, Appellant's claim that the trial verdict is contrary to the weight of

the evidence has no merit. Based on all the evidence presented, the verdict does not

shock one's sense of justice.

II.    Preliminary Hearing, Defendant's Right to Confrontation

       Appellant alleges that he was deprived of his right to confrontation under the

State and Federal Constitutions at his preliminary hearing when the Commonwealth

only presented testimonial hearsay evidence through a police officer who was not a

witness to the alleged events.

       Adams County Court of Common Pleas Judge Thomas R. Campbell

previously dealt with this issue in an Order of Court dated April 29, 2016 and in Judge

Campbell's Opinion Pursuant to Pa. RP.A. 1925(a), entered October 6, 2016. Judge

Campbell's Order of Court dated April 29, 2016 is attached as Exhibit A to this

Opinion and Judge Campbell's Opinion Pursuant to Pa. RP.A. 1925(a), filed October

6, 2016, is attached to the Opinion as Exhibit B.

       Furthermore, since Judge Campbell's Order of Court and 1925(a) Opinion, the

Pennsylvania Supreme Court in Commonwealth v. Ricker, 170 A.3d 494 (Pa. 2017)

dismissed the appeal as having been improvidently granted.

       Furthermore, once a Defendant has gone to trial and been found guilty of a

crime, any defect in the preliminary hearing is rendered immaterial. Commonwealth




                                           12
v, Tyler, 587 A.2d 326 (Pa. Super. 1991); Commonwealth v. Worrall, 609 A.2d 851

(Pa. Super. 1992).

       Appellant's argument that he was deprived of his right to confrontation at the

preliminary hearing is meritless.

Ill.    Bill of Particulars Argument

       Appellant contends he was denied due process guarantees when he

requested a bill of particulars from the Commonwealth pursuant to Pa. R.Crim.P. 572

and subsequent motion to the Court, but never received an answer to his request for

bill of particulars.

       A review of the docket in the above-captioned matter reveals that Appellant

filed a Request for Bill of Particulars on March 9, 2016. The Commonwealth filed an

Answer to Defendant's Request for Bill of Particulars on March 15, 2016. Appellant

filed no additional request for bill of particulars, nor a motion with the Court for relief

concerning Defendant's Request for Bill of Particulars.

        Appellant's argument concerning a requested bill of particulars in violation of

Pa. R. Crim. P. 572 is meritless.

IV.     Removal of Juror

        Appellant contends this Court abused its discretion when it removed a juror,

Juror #62, on the second day of trial without examining the juror's ability to be fair and

impartial.

        Jury selection in the above-captioned case occurred on July 30, 20       \1 before
this Court: During jury selection this Court was provided with a list of witnesses or

potential witnesses who may testify at tria! by both the Commonwealth and Appellant.



                                            13
Included was the name Susan Lang, the stepmother of the Victim, who is married to

the Victim's father. During the voir dire process none of the proposed jurors advised

that they knew Susan Lang, including Juror #62.

       Juror #62 was selected as a juror in this case. At the close of court on August

1, 2017, the Commonwealth advised the Court and defense counsel that Susan Lang

recognized Juror #62, that they previously worked together at Adams County

National Bank, that Susan Lang was in a supervisory role to Juror #62 and on at least

one occasion reprimanded Juror #62 for a violation of employment procedure.

       The following colloquy occurred on the morning of August 2, 2017 before trial

started:

             THE COURT: Good morning, Miss Carey.

             JUROR: Good morning.

             THE COURT: You're not in trouble so don't worry.

             JUROR: Okay.

             THE COURT: An issue was raised. It's my understanding in reviewing
             your questionnaire that you worked at Adams County National Bank for
             a long time.

              JUROR: Yes, I did.

              THE COURT: You worked as a teller in the Cashtown branch?

              JUROR: Um-hum.

              THE COURT: Are you familiar with a Susan Lang?

              JUROR: Yes I am and when you read that name the other day it went
              right over my head. I haven't had any contact with her for about seven
              years. I've been retired for five and she changed her position two years
              before that.




                                          14
              THE COURT: When you were a teller at Adams County National Bank
              was she basically the branch manager there'?

              JUROR: Yes, she was.

              THE COURT: So she would have been your-

              JUROR: She was my bosses boss.

              THE COURT: I don't want to ask any questions about how you did your
              job but in the course of her employment as the branch manager at any
              time did she provide or write you up for anything that you would have
              done incorrectly in your job?

              JUROR: Yes, one time.

              THE COURT: Okay, thank you. Based on that in an abundance of
              caution, I'm sure you could be a fair and impartial juror and I'm sure you
              would not let that impact you, but in an abundance of caution I am going
              to dismiss you right now.

              JUROR: That's fine because I thought about this yesterday and I wasn't
              sure who to even tell because I saw her in here yesterday and that's
              when it just clicked. I know her.

              THE COURT: Okay.

              JUROR: That's not a problem.

              THE COURT: Given the relationship you understand.

              JUROR: Yes. That's fine. Not a problem at all.

       "The discharge of a juror is within the sound discretion of the court and that

determination will not be reversed absent a palpable abuse of that discretion. We

have recognized that this discretion exists even after the jury has been impaneled

and the jurors sworn." Commonwealth v. Black, 376 A.2d 627, 632 (Pa. 1977).

(citations omitted) (internal citations omitted). The court in Black also stated:

              In the instant case, the trial judge dismissed the juror as a precautionary
              measure to insure an impartial trial, free of outside influences, and to
              avoid the , appearance of impropriety. While we recognize the

                                            15
              relationship of the juror to the witness does not, as a matter of law
             disqualify that juror, see e. g., Commonwealth ex rel. Fletcher v.
              Cavell, 395 Pa. 134, 149 A.2d 434 (1959), we do not believe that a
             judge who, out of an abundance of caution excludes such a juror,
             abuses his discretion by doing so. "A fair trial in a fair tribunal is a basic
              requirement of due process." In re Murchison, 349 U.S. 133, 136, 75
              S.Ct. 623, 625, 99 L.Ed. 942 (1955). See also, Withrow v. Larkin, 421
              U.S. 35, 95 S.Ct. 1456, 45 L.Ed.2d 712 (1975); Irvin v. Dowd, 366 U.S.
             717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961). This obligation is applicable
             whether we are considering the rights of the defendant or the interest of
             the state. While we recognize that these considerations are to some
             degree dependent upon speculation, the recognition of the possibility of
             prejudice or bias resulting from such a close relationship is certainly
             justified and the action of the court in removing this juror to assure
             fairness is obviously reasonable. Cf. Turner v. Louisiana, 379 U.S.
             466, 85 S.Ct. 546, 13 L.Ed.2d 424 (1965); Commonwealth v. Stewart,
             449 Pa. 50, 295 A.2d 303 (1972).

Id at 632.

       It is noted that Juror #62 did not disclose her knowledge of a potential

Commonwealth witness, the stepmother of the Victim in this case, during voir dire.

Furthermore, following questioning by the Court, Juror #62 disclosed that she saw

Susan Lang in the courtroom, acknowledged to the Court she knew her, but did not

advise the Court or court personnel of their prior relationship until questioned by the

Court. The juror did acknowledge that Susan Lang, the stepmother of the Victim, had

previously reprimanded her for an employment issue.

       Just as in Black, this Court "dismissed the juror as a precautionary measure to

ensure an impartial trial, free of outside influences, and to avoid the appearance of

impropriety." Id at 632. Furthermore, the standard concerning whether a juror should

be removed, even after the jury has been impaneled and the jurors sworn, is not

whether the juror could be fair and impartial. See Commonwealth v. Hetzel, 822




                                           16
A.2d 747, 755 (Pa. Super. 2003). The Court's decision to remove Juror #62 was

based upon a sufficient record of competent evidence to sustain removal.

      Therefore, since Appellant has not shown that there was a palpable abuse of

the Court's discretion in removal of Juror #62 and based on this Court's reasoning on

Appellant's other issues, it is respectfully requested that this Court's Judgment of

Sentence and Order denying Appellant's Post-Sentence Motion be affirmed.




                                                   BY THE COURT:



Date: May 2, 2018                                  SHAWN C. WAGNER
                                                   Judge


nll

Kelley L. Margetas, Esquire
Sean A. Mott, Esquire -




                       Distributio..n

                      Original
                      Kelley L. Marget           . .
                     Sean A M            as,. Esqurre - t\C0\'\Nt.
                     Cou       · ?f!, Esquire -�\CD�\C..
                          rt Administrator- e�\L
                     Adams County L
                     District &  c       egal Journah�.\tD:i\.""flt_
                           .
                     Med·,a C     aunty   Reports -�\
                               opy _ c.a�c..




                                            17
