J-S26022-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

REBECCA ANN BUTLER

                            Appellant                 No. 1156 MDA 2014


            Appeal from the Judgment of Sentence of June 6, 2014
              In the Court of Common Pleas of Luzerne County
              Criminal Division at No.: CP-40-CR-0001829-2013


BEFORE: OTT, J., WECHT, J., and JENKINS, J.

MEMORANDUM BY WECHT, J.:                                 FILED JULY 06, 2015

       Rebecca Ann Butler appeals from the judgment of sentence entered

following her jury conviction of two counts of endangering the welfare of

children and two counts of conspiracy to commit corruption of minors.1 We

affirm.

       On April 26, 2013, Butler was charged with the above counts for

enacting a scheme to allow Andre Vancliff2 to have sexual contact with

Butler’s two daughters, who were seven and eleven years old at the time.

On September 21, 2012, Butler signed a written statement admitting her

participation in the crime, and in August 2013, the Commonwealth informed
____________________________________________


1
      See 18 Pa.C.S.A. § 4304(a)(1); 18 Pa.C.S.A. § 903 (premised upon 18
Pa.C.S.A. § 6301(a)(1)(iii)).
2
       Vancliff is a life-without-parole inmate at SCI Retreat.
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Butler that her trial would be joined with that of Vancliff. On February 24,

2014, at the commencement of the pretrial suppression hearing, the

Commonwealth entered an oral motion to sever the two prosecutions

because “it had discovered a Bruton[3] issue upon a closer review of the

case.”     Trial Court Opinion (“T.C.O.”), 9/2/2014, at 3.     The trial court

granted the motion, and trial proceeded against Butler.

       Butler was subsequently found guilty of the above-mentioned counts,4

and, on June 6, 2014, was sentenced to a term of incarceration of forty-two

to one-hundred twenty months’ incarceration.         Butler timely filed post-

sentence motions, which the trial court denied on June 18, 2014. On July 9,

2014, Butler timely appealed to this Court.      The same day, the trial court

ordered Butler to file a concise statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(b), and Butler complied on July 29, 2014. On

September 2, 2014, the trial court entered its opinion pursuant to Pa.R.A.P.

1925(a).




____________________________________________


3
       Bruton v. United States, 391 U.S. 123 (1968) (holding that a non-
testifying codefendant’s confession naming the other defendant cannot be
admissible against the defendant as it violates his rights under the
Confrontation Clause of the Sixth Amendment to the United States
constitution).
4
      After their cases were severed, on July 21, 2014, Vancliff entered a
plea of nolo contendere to one count of conspiracy to commit corruption of
minors.



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      Butler raises one question for our review: “Whether the trial [court]

erred or abused [its] discretion by hearing and subsequently granting the

Commonwealth’s oral motion to sever trial on the same day that jury

selection was to begin despite the untimely request and lack of cause either

proffered or shown as required by Pa.R.Crim.P. Rule 579(a)[?]”        Butler’s

Brief at 6.

      Specifically, Butler argues that “Pa.R.Crim.P 579 requires that the

proponent of late-filed motions show ‘cause’ as to why the motion is being

filed late,” and that Butler was prejudiced by the grant of severance in her

trial when “[t]he Commonwealth offered no such reasons beyond what is

tantamount to ignorance of the law.” Id. at 11. We disagree.

      Our standard of review is well-settled:

      The decision whether to grant a motion for severance is within
      the sound discretion of the trial court and will not be overturned
      absent a manifest abuse of discretion. The defendant bears the
      burden of proving that he was prejudiced by the decision not to
      sever, and he must show real potential for prejudice rather than
      mere speculation. The probability of antagonistic defenses is a
      factor that trial courts should consider in deciding whether to
      grant severance, but the claim must be more than bare
      antagonism.       However, when defendants have conflicting
      versions of what took place, the truth may be more easily
      determined if all are tried together. When conspiracy is charged,
      joint trials are advisable.

Commonwealth v. Rivera, 773 A.2d 131, 137 (Pa. 2001) (citations

omitted).

      In the instant case, the Commonwealth requested that Butler and

Vancliff’s trials be severed because of the Bruton issue implicated by

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admission of Butler’s written statement.      Specifically, the Commonwealth

wished to admit Butler’s written statement to the police which implicated

Vancliff. Pursuant to Bruton, the inculpating statement would have violated

Vancliff’s right to confrontation if Butler declined to testify in a joint trial.

Butler’s statement includes the following:

      Andre Vancliff . . . in time revealed to me that he was a “pimp”
      and I wasn’t sure how that could occur if he was in jail. . . . I
      truly thought he was sincere in coming home and being a
      “husband” and father to my children. He took advantage of my
      past abuse . . . and told me he wanted the girls [J.] and [M.], to
      learn to love him first before growing up and getting hurt by
      strangers and that if they loved him they wouldn’t go out and
      get pregnant or raped. . . . Eventually he asked about teaching
      the girls to learn how to masturbate so that if they learned how
      to love themselves first they wouldn’t seek sexual fulfillment and
      get hurt. I understood his rationale so to speak and asked [M.]
      and [J.] what they knew about boys and girls and they already
      knew from friends at school what happens so I let it go . . . . I
      had started to pull away from [Vancliff be]cause he wanted me
      to “teach” the girls how to love him and when he found out [M.]
      was reading Fifty Shades of Gray he became more possessive
      and more controlling about the girls so I was trying to break it
      off but he told me many times that if I left him he would find me
      and end my life for taking me and the girls from him. . . . He
      had asked me to send pictures of the girls in scanty undies. The
      girls didn’t want to do that stuff. I sent [J.]’s picture of her
      sitting in a dress with undies showing and I sent pictures of the
      girls and my boys and his family. [Vancliff] is very coercive and
      for love, me and my girls eventually would’ve done anything for
      his love, including what he asked. He needs to be stopped from
      hurting other women and children.

Statement, 9/21/2012, at 1-5.

      The Commonwealth orally moved to sever the trial at argument on

pretrial motions on February 24, 2014. Vancliff did not object to severance.



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Butler, however, argued in favor of redaction of the statement in lieu of

severance, as follows:

     [Counsel for Butler]:   Your Honor, we do have opposition to
          this. First, as I know we will discuss with the suppression
          issue, it is filed untimely.      The statement that the
          Commonwealth is referring to did get delivered to us, and
          obviously the Commonwealth had it in a timely fashion
          way back when discovery was in the first wave of
          discovery, so they had the opportunity to do this. And, in
          fact, they could have, under the rules, filed a motion to
          sever in the omnibus time period which was roughly the
          time when discovery was produced, so they could have
          done it then. My other concern is prejudice to my client,
          Your Honor.

     The Court: How is your client prejudiced?

     [Counsel for Butler]:  It greatly changes our trial strategy. The
          conversation from the DA went out to co-defendant’s
          counsel roughly a week and-a-half ago, and that was really
          just a general statement by [counsel for Vancliff]. I did
          not find out about it until [counsel for Vancliff] and I were
          talking because we passed in the hallway this past Friday.
          It was on Saturday that the ADA confirmed it to me. So
          here I am, 48 hours before trial, and I don’t know what
          direction I’m going through here.

           Bruton is a very large issue in this trial. It determines
           whether or not the statement comes in on its own
           perhaps, because it cannot come in against my client if she
           chooses not to testify. And so—

     The Court: Explain that to me. A statement given by your client
          to police. If the suppression motion you filed today is not
          granted, how does that statement not come in against
          your client?

     [Counsel for Butler]:   The only inculpatory parts of that
          statement are not about her actions but about Mr.
          Vancliff’s actions. Everything else within the statement is
          not inculpatory. So the portions that we’re concerned
          about that do appear to be admissions of state of mind of
          my client, in fact, are statements against Mr. Vancliff. So

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           if those statements get in and she does not testify, of
           course, Bruton’s going to keep those out.

           I would love to take the statement exactly as is, take out
           the offending statements and boom, we’re done, with my
           suppression.

     [The Commonwealth]: Judge, obviously that’s going to be up to
           the Court to decide. It’s our position that the entire
           statement, other than depending on the pretrial motions
           regarding mental state, that there are other statements in
           there that, in fact, implicate [Butler].

     The Court: Anything else?

     [Counsel for Butler]:   No, sir.

     The Court: I’m going to grant the Commonwealth’s motion to
          sever these cases.     I feel the Bruton issue is an
          overwhelming reason to sever these cases, and the court
          cases clearly say that I have that discretion as the trial
          judge.

N.T. Pretrial Motions, 2/24/2014, at 2-5.

     We have long held that:

     [A] co-defendant’s confession, which inculpates the [other]
     defendant, cannot be used as evidence against the defendant.
     Bruton, supra; Commonwealth v. Witherspoon, 392 A.2d
     1313 (Pa. 1978); Commonwealth v. Johnson, 323 A.2d 813
     (Pa. Super. 1974). As an appropriate method of protecting a
     defendant’s right to confront adverse witnesses, the Supreme
     Court has approved the practice of redaction, in which all
     testimonial references to persons other than the declarant are
     deleted.   Commonwealth v. Johnson, 378 A.2d 859 (Pa.
     1977); cf. Bruton, 391 U.S. at 134 n.10; Commonwealth v.
     Guess, 404 A.2d 1330 (Pa. Super. 1979).          We have also
     recognized, however, that redaction is not always effective in
     relieving prejudice to the accused and that other remedies may
     be required.

Commonwealth v. Norman, 415 A.2d 898, 901 (Pa. Super. 1979)

(citations formatted). See also Bruton, 391 U.S. at 126, 128-29; see id.

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at 135 (“[T]here are some contexts in which the risk that the jury will not, or

cannot, follow instructions is so great, and the consequences of failure so

vital to the defendant, that the practical and human limitations of the jury

system cannot be ignored.”).

      In general, our courts have approved of redaction as a way to admit a

co-defendant’s statement. “If a confession can be edited so that it retains

its narrative integrity and yet in no way refers to defendant, then use of it

does not violate the principles of Bruton.” Commonwealth v. Johnson,

378 A.2d 859, 860 (Pa. 1977). “[S]ubstantial deference must be afforded to

the trial court in this regard.” Commonwealth v. Wharton, 607 A.2d 710,

716 (Pa. 1992).

      “In all cases in which two or more persons are jointly indicted for any

offense, it shall be in the discretion of the court to try them jointly or

severally[.]” Commonwealth v. Stukes, 257 A.2d 828, 833 (Pa. 1969).

Commonwealth v. Markman, 916 A.2d 586, 604 (Pa. 2007) (holding that

trial court violated Bruton rule by admitting statement with codefendant’s

name redacted in joint trial).   “Separate trials of co-defendants should be

granted only where the defenses of each are antagonistic to the point where

such individual differences are irreconcilable and a joint trial would result in

prejudice.” Commonwealth v. Lambert, 603 A.2d 568, 573 (Pa. 1992);

see, e.g., Commonwealth v. Boykin, 460 A.2d 1101, 1102 (Pa. 1983)

(remanding for new trial for failure to grant untimely motion to sever

because there was “no potential benefit to be derived from a trial

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consolidating the remaining charges against appellant with the full list of

charges against his co-defendants”).

      In the instant case, it is clear that redaction would have been

inadequate to permit admission of Butler’s statement.     See Johnson, 378

A.2d at 860. If Butler and Vancliff were to be tried jointly, the jury would

easily conclude that any mention of Butler’s anonymous codefendant could

be Vancliff and no one else.          Furthermore, the statement exclusively

discusses Butler’s relationship with Vancliff.   Vancliff’s name could not be

redacted from the statement in such a way that it would “retain[] its

narrative integrity and yet in no way refer[] to [Vancliff].”   Johnson, 378

A.2d at 860. It would be too great a test of the jury’s human limitations to

believe that redaction or instructions could overcome the Bruton issue

presented by Butler’s statement.          See Bruton, 391       U.S. at 135.

Accordingly, the trial court did not err in denying Butler’s motion to redact

the statement in lieu of severance.

      Nonetheless, Butler argues that she was prejudiced by severance

because, if she had been tried jointly with Vancliffe, she believes that the

statement would not have been admitted at all.       See Butler’s Brief at 20.

This is incorrect. In the context of a Bruton issue, the paramount concern

is the confrontation rights of the subject of the statement, not the

declarant—here, Vancliff’s confrontation rights, not Butler.     Furthermore,

redaction and severance are the solutions identified to rectify that concern,

Norman, 415 A.2d at 901, and Butler cites no case law to the contrary.

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        Butler argues that she is prejudiced for not having been offered a third

route: full suppression of her written statement from admission against

Butler, the declarant, as well. See Butler’s Brief at 20-21. However, Butler

does not aver that her statement was obtained in violation of her

constitutional rights, any other Pennsylvania statute or rule, or that the

police used an improper method to obtain the statement in question. See

Commonwealth v. Simmons, 56 A.3d 1280, 1286 (Pa. Super. 2012)

(holding that bald statements unsupported by law are waived under

Pa.R.A.P. 2119(a)). Therefore, her argument that she was unprepared for

its admission against her is not persuasive.

        Nonetheless, Butler argues that the trial court erred in granting the

motion to sever the cases because the Commonwealth’s motion was

untimely filed pursuant to Pa.R.Crim.P 579. Rule 579 provides, in relevant

part:

        Rule 579. Time for Omnibus Pretrial Motion and Service

        (A) Except as otherwise provided in these rules, the omnibus
        pretrial motion for relief shall be filed and served within 30 days
        after arraignment, unless opportunity therefor did not exist, or
        the defendant or defense attorney, or the attorney for the
        Commonwealth, was not aware of the grounds for the motion, or
        unless the time for filing has been extended by the court for
        cause shown.

Pa.R.Crim.P. 579(A).

        Under Pennsylvania Rule of Criminal Procedure 578, unless
        otherwise required in the interests of justice, all pretrial
        requests, including a request for suppression of evidence, must
        be included in one omnibus pretrial motion. See Pa.R.Crim.P.

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      578, Comment.       Rule 579 states that an omnibus pre-trial
      motion must be filed within 30 days of arraignment. The only
      exceptions to this rule are: (1) the opportunity to do so did not
      exist, (2) the defendant or defense counsel was unaware of the
      grounds for the motion, or (3) the time for filing was extended
      by the court for good cause shown. See Pa.R.Crim.P. 579(A).

Commonwealth v. Borovichka, 18 A.3d 1242, 1248 (Pa. Super. 2011).

Furthermore, the comment to Rule 578 provides:

      The omnibus pretrial motion rule is not intended to limit other
      types of motions, oral or written, made pretrial or during
      trial, including those traditionally called motions in limine, which
      may affect the admissibility of evidence or the resolution of other
      matters. The earliest feasible submissions and rulings on such
      motions are encouraged.

Pa.R.Crim.P. 578, Comment (emphasis added).

      Thus, the timing of omnibus pretrial motions does not preclude oral,

pretrial motions such as the pretrial motion to sever at issue here.

Moreover, the cases cited by Butler are unpersuasive on this point.          In

Commonwealth v. Baez, 21 A.3d 1280 (Pa. Super. 2011), the court

permitted the defendant to file a written omnibus pretrial motion several

months late. See Butler’s Brief at 14-15. Similarly, in Borovichka, 18 A.3d

at 1248, the court permitted the defendant to file an untimely pretrial

motion.   See Butler’s Brief at 15.     Butler cites no authority that would

preclude the Commonwealth from orally moving to sever trial at the

suppression hearing.    See Simmons, 56 A.3d at 1286.         Accordingly, the

trial court acted within its discretion when granting the motion. Rivera, 773

A.2d at 137. Butler’s issue does not merit relief.



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     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/6/2015




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