J-S69009-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                       IN THE SUPERIOR COURT
                                                              OF
                                                         PENNSYLVANIA
                          Appellee

                     v.

JOSIAH WARREN,

                          Appellant                    No. 929 MDA 2018


       Appeal from the Judgment of Sentence Entered April 25, 2018
             In the Court of Common Pleas of Franklin County
           Criminal Division at No(s): CP-28-CR-0001526-2016


BEFORE: BENDER, P.J.E., LAZARUS, J., and MURRAY, J.

MEMORANDUM BY BENDER, P.J.E.:                     FILED DECEMBER 24, 2018

      Appellant, Josiah Warren, appeals from the judgment of sentence of 36

months’ intermediate punishment and a concurrent, aggregate term of 24

months’ probation, imposed after he was convicted by a jury of endangering

the welfare of children (EWOC), corruption of minors (COM), and furnishing

liquor to minors (FLM). After careful review, we affirm.

      The trial court summarized the evidence presented at Appellant’s trial,

as follows:

             The Commonwealth called K.P., the step-daughter of
      [Appellant] and daughter of [co-defendant] Kendra Warren
      [(hereinafter, “Warren”)]…. K.P. was eighteen years old at the
      time of trial, having been born in December of 1999. At the time
      of trial, K.P. was living with her biological father and finishing her
      senior year in high school.

             In July of 2016, K.P. lived with her aunt, Katrina Johnson.
      Prior to that, she lived with [Warren], [Appellant], and younger
J-S69009-18


     brother in Mercersburg, Franklin County. K.P. described times
     when she became upset and [Warren’s] and [Appellant’s]
     response was to give her alcohol and marijuana. In response to
     the Commonwealth’s question as to how that would come about,
     she testified, “Kind of just like, we would go out in the garage and
     smoke together.”

           With respect to the alcohol, K.P. testified, “They would kind
     of just have it out and then it would be offered … to me.”
     Sometimes [Warren] would offer it to her; sometimes [Appellant].
     She described, “[t]he first time, like, I tried it[,] [it] was a sip of
     wine and then later on it was more liquor. Like Crown Royal, which
     looked like a crown.” The bottle of Crown Royal was in the house
     on top of the refrigerator. It was offered to her when she was
     upset. K.P. described the tasted of Crown Royal as “bitter and
     gross.” Sometimes they gave her a shot glass to drink out of;
     other times it was “mixed with Pepsi or something like that.”
     When asked to describe how the alcohol made her feel, K.P.
     explained, “I just felt really tired and usually like after maybe 10
     minutes I would just go to bed.” She was about 15 when [Warren
     and Appellant] first gave her Crown Royal. She was given alcohol
     approximately once a week until she told her aunt about what was
     happening in July [of] 2016.

             K.P. explained to the jury that when she was upset[,
     Warren] and [Appellant] sometimes gave her marijuana to smoke.
     Usually, she smoked in the garage. The marijuana was kept in a
     little box nailed onto the shed above the tools. When asked what
     she smoked the marijuana out of, K.P. explained, “Usually, like a
     small thing. I don’t remember the color or anything. But a bowl
     we would smoke out of or roll up like a paper joint.” Smoking
     marijuana became “a normal thing for [her] to do at that time.”
     K.P. confirmed that the three of them[, Warren, Appellant, and
     K.P.,] smoked marijuana together. K.P. smoked marijuana three
     to four times a week from the time she was fifteen years old until
     she told her aunt about it in July [of] 2016.

           K.P. also described situations where she would suffer
     physical consequences for her actions. She testified that she was
     smacked in the face or “gut punched” in the stomach by
     [Appellant]. K.P. explained that [Appellant] put his hands on her,
     “when we got in a really huge argument; maybe every two weeks.
     I don’t really want to say exact time frame, because I can’t say
     like every two weeks. It was when we got in a really huge
     argument.”

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            On one occasion, K.P. sought medical treatment at Urgent
     Care. K.P. testified, “A couple days after he hit my head off the
     ground I went to Urgent Care and there was a bump. But I wasn't
     truthful with the doctor and actually didn’t tell them what
     happened.” The incident resulting in the trip to Urgent Care
     occurred after K.P. had her phone and Facebook privileges taken
     away. [Appellant] went through her history and accused K.P. of
     being on Facebook when she was not permitted. K.P. denied it;
     [Appellant] grabbed her hair. She tried to pull away but he slowly
     put her on the floor and banged her head on the ground (three
     times) and told K.P., “Get your head out of your ass.” [Warren]
     asked him to stop, which he refused. K.P. described having, “a
     pretty bad migraine for like two days after that, but other than
     that it was just a small bump on [her] head.”

           The time [Appellant] slapped her face, K.P. had a red mark.
     She covered it up with her hair and didn't tell anyone. Her friend
     at school noticed, but she told her friend that she didn’t want her
     to say anything.

           K.P. told the jury that [Appellant] put a deadbolt on her
     bedroom door in response to an incident with her boyfriend
     because he thought she would run away. She recalls the deadbolt
     being only locked once; rather, it was used as more of a threat.
     When it was locked, she had to knock on the door to use the
     restroom. K.P. did acknowledge on cross-examination that she
     had threatened to run away and kill herself on prior occasions;
     however, not on the night the deadbolt was locked.

            On cross-examination K.P. agreed that she had made a prior
     report to Franklin County Children and Youth [Services]
     [(FCCYS)]; however, she never reported the alcohol or marijuana
     use. She also acknowledged that her relationship with [Warren
     and Appellant] declined after an incident with her boyfriend where
     [he] gave her “bad drugs” that made her sick. When challenged
     by counsel for [Appellant] about not wanting to live under
     [Warren’s and Appellant’s] rules, K.P. responded, “I wasn’t
     allowed to do anything, really, so it was - I always had rules. I
     could have left when I was 13, but I didn’t. It wasn’t, like, the
     rules, it was kind of just. I felt this - I don’t know how to describe
     it. Enclosed from everything.” She could have told other family
     members about it, but she didn’t. She denied counsel’s accusation
     that she wanted to get out of [Warren’s and Appellant’s] house
     because of their rules, no matter the cost. K.P. finally disclosed to
     her Aunt Katrina [Johnson (hereinafter, “Johnson”)] what was

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     happening to make sure nothing would happen to her little
     brother.

     Michelle Jones ([hereinafter,] “Jones”), a caseworker with
     [FCCYS] testified that her agency received a referral in June 2016
     regarding [Warren] and [Appellant]. K.P. was the child subject of
     the referral. Jones met with K.P. and [Warren]. [Warren] admitted
     that she “and another person” gave K.P. marijuana and alcohol,
     specifically Crown Royal. K.P. was given the marijuana “three or
     four times” to calm her down. [Warren] also admitted that she
     “and another person” locked K.P. in her room using a deadbolt
     once. Jones observed the deadbolt on K.P.’s bedroom door.

            Jones also spoke to … [Appellant] by phone. He denied
     giving K.P. anything, but did admit that there was a deadbolt on
     K.P.’s bedroom door.

            [] Johnson, K.P.’s maternal aunt, testified that in July of
     2016, K.P. came to live in her home. K.P. had been babysitting
     Johnson’s children a couple of days a week over the summer
     break. K.P. told Johnson and her husband about what was
     happening at her home. K.P. initially told Johnson that she was
     given marijuana one time - she did not initially disclose that it was
     happening three or four times per week. After the initial disclosure
     by K.P., which Johnson related to Officer McCorristan of the
     Mercersburg Police Department, Johnson and K.P. had further
     discussions during which K.P. disclosed that the drug use occurred
     “a lot more frequently.”

           Johnson called [FCCYS]. [Johnson] talked to [Warren] about
     K.P.’s allegations on many (10 or 15) occasions. [Warren] told
     Johnson that she [“]and another person[”] gave K.P. marijuana
     and alcohol to calm her down. They used the marijuana together.
     [Warren’s] attitude was that “every parent gives their kid alcohol
     or drugs at some point. That it was normal.” [Warren] also
     admitted to Johnson that she “and another person” locked K.P. in
     her bedroom with a deadbolt on one occasion.

           Daniel McQuade testified that he has known the Warrens for
     about 10 years. He has visited the Warren[s’] home. McQuade
     has never witnessed any argument between … [Appellant] and
     K.P. However, about two summers []prior to the trial[,] he was at
     the Warren[s’] home and observed K.P. “storming up the steps...”
     upset as the result of a disagreement with [Appellant]. K.P. angrily
     said, “I will do whatever it takes to get out of this house by the
     summer.”

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           [Appellant] testified. He has been with [Warren] for
     eighteen years; they have been married for ten. He[] [has] been
     in K.P.’s life as her father figure since she was three months old.
     [Appellant] described K.P. as, “beyond stressed, dealing with
     teenaged stuff.” [Appellant] denied ever physically abusing K.P.
     He also denied giving K.P. alcohol except when she asked to taste
     wine on New Year’s Eve. He denied giving K.P. Crown Royal or
     shots, although he did acknowledge that there is Crown Royal in
     his home.

           With respect to marijuana, [Appellant] admitted giving the
     child marijuana on one occasion because, “[s]he was beyond
     stressed” about her boyfriend, attempting to commit suicide,
     taking pills, threatening to kill herself and trying to run away.
     [Appellant] explained that K.P. asked him and [Warren] if she
     could use marijuana. At first, they said no. But after days of no
     sleep over worry as to whether she’ll be dead or alive, they gave
     her some so they could sleep. [Appellant] reported that it was only
     one occasion, in June of 2016. “I set it on the counter and she
     picked it up.” He did not smoke marijuana with her. He described
     the marijuana as being in a box mounted to the wall “in the garage
     out of the reach of everybody but me because I was the only one
     who could reach it.”

            [Appellant] also testified that the deadbolt on K.P’s bedroom
     door was only locked once, the first time it was put on, to make
     sure it worked. She just thought it was locked, but never actually
     checked. With respect to the entire case, [Appellant] repeatedly
     claimed, “It’s been blown way out of proportion from the very
     beginning. I’ve said it's been blown out of proportion.”

            Kendra Warren testified that she is K.P.’s mother. [Warren]
     testified regarding changes in K.P.’s behavior since the time she
     started high school. K.P. was lashing out and angry all the time.
     After [FCCYS] became involved, upon agreement, K.P. went to
     live with [Warren’s] sister.

            [Warren] denied giving K.P. Crown Royal; however, she
     repeated the same story as [Appellant] regarding the New Year’s
     Eve wine K.P. asked to taste. [Warren] admitted giving K.P.
     marijuana one time because she was very upset and she asked
     for it. [Warren] denied telling Johnson it was more than once.
     They were in the middle of looking for a counselor for K.P., but
     between her work schedule and their medical insurance, it was
     hard to find a counselor.


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            [Warren] also mirrored [Appellant’s] testimony in that she
      denied ever locking K.P. in her room. “It had been locked. What I
      meant by saying that was that we showed her that it was locked
      when she was standing in the hall with us. She was never
      physically locked in her room.” [Warren] also admitted sending
      K.P. a text message asking K.P. to drop the charges.

Trial Court Opinion, 7/17/18, at 2-10 (citations to the record and footnotes

omitted).

      At the conclusion of Appellant’s trial, he was convicted of the above-

stated offenses. He was sentenced on April 25, 2018, to a term of 36 months’

intermediate punishment for his EWOC conviction, which included 30 days’ of

incarceration and 120 days’ of electronic home monitoring. Appellant received

terms of 12 and 24 months’ probation for his FLM and COM convictions,

respectively, which were imposed to run concurrently with his intermediate

punishment sentence.

      Appellant filed a timely notice of appeal, and he also timely complied

with the trial court’s order to file a Pa.R.A.P. 1925(b) statement. The court

filed a responsive opinion on July 17, 2018. Herein, Appellant presents two

questions for our review:

      1. Did the trial court abuse its discretion by denying [Appellant’s]
         request for a continuance?

      2. Did the trial court abuse its discretion by admitting the co-
         defendant’s inculpatory statements regarding her and
         [Appellant], the substance of which was provided the day
         before trial and [Appellant] was not informed that the
         inculpatory statements from [the] co-defendant involved him
         until trial?

Appellant’s Brief at 8.



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       Appellant’s two issues both involve the Commonwealth’s late disclosure

of inculpatory statements made by his co-defendant, Warren, to two

Commonwealth witnesses - Johnson (Warren’s sister) and Jones (the FCCYS

case worker).        As stated supra, Johnson claimed she had 10 to 15

conversations with Warren as this case proceeded, during which Warren

admitted that she and Appellant had given K.P. marijuana and alcohol. See

N.T. Trial, 2/14/18, at 85. Warren told Johnson that they gave K.P. marijuana

to calm her down, and that Warren and Appellant had smoked the drug with

K.P. Id. at 86. Warren further admitted to Johnson that on one occasion, she

and Appellant locked K.P. in her bedroom using a deadbolt. Id. at 87.1

       In regard to the Commonwealth’s disclosure of inculpatory statements

by Warren that were ostensibly included in an FCCYS report drafted by Jones,

the record is less clear. That report was not admitted into evidence during

Jones’ testimony, and Appellant does not elaborate on what specific

inculpatory statements were allegedly set forth in that report.    However,

consistent with Jones’ trial testimony, we presume that her report detailed

Warren’s admissions that she and Appellant gave K.P. alcohol and marijuana,

and locked K.P. in her room with a deadbolt on one occasion. See id. at 75-

76.
____________________________________________


1 At trial, the Commonwealth did not mention Appellant when questioning
Johnson about Warren’s inculpatory statements; instead, Appellant’s name
was replaced with the term, “another person,” to avoid any issue under
Bruton v. United States, 391 U.S. 123 (1968) (holding that a defendant’s
Confrontation Clause rights are violated if his non-testifying co-defendant’s
confession naming him as a participant is introduced at their joint trial).

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      It is undisputed that the Commonwealth did not learn of the inculpatory

statements that Warren made to Johnson, or discover that Jones had drafted

an FCCYS report containing additional inculpatory statements, until the

evening before Appellant’s trial began.        Appellant concedes that the

prosecutor informed his attorney “within minutes of discovering this

information.” Appellant’s Brief at 13. On the morning of trial, the parties and

the court met in chambers and had an off-the-record discussion about how to

handle Warren’s newly-discovered, inculpatory statements.       Once the trial

commenced, the court and parties then summarized that discussion, as

follows:

      THE COURT: We also discussed the Commonwealth’s recent
      disclosure of defendant, Kendra Warren’s, statements to her sister
      pursuant to Pennsylvania Rule of Criminal Procedure 573. [The
      prosecutor,] Attorney Carr[,] indicated that he became aware of
      these statements[,] that were described in the nature of ongoing
      [conversations] and were revealed during … witness preparation.
      So[,] there was discussion regarding the nature of the statements,
      the substance of the statements. There were objections from both
      counsel[,] which the court overruled based on the
      Commonwealth’s provision of the information at the time we had
      the conference in chambers.

            Do you want to put anything else on the record with respect
      to that, Attorney Rahauser [counsel for co-[Appellant] Warren, or]
      Attorney Taccino [Appellant’s counsel]?

      MRS. RAHAUSER: Yes, Your Honor. My specific objection was
      because we were on notice that there [were] inculpatory
      statements, but not what the substance of that was.

      THE COURT: And that was provided to you yesterday, but Attorney
      Carr provided the substance of the inculpatory statement this
      morning.

      MRS. RAHAUSER: This morning, yes.

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     THE COURT: Attorney Taccino?

     MR. TACCINO: Same.

     THE COURT: Anything else you want to put on the record with
     respect to that Attorney Carr?

     MR. CARR: Just, Your Honor, I notified both counsel via e-mail
     within minutes after prepping Ms. Johnson about the inculpatory
     statements and I did make them aware of the substance of them.
     They are not -- I don’t believe they should be anything, given what
     the affidavit and incident report causes -- [or] should cause any
     great surprise.

     THE COURT: All right.

     MR. CARR: And I will note that Katrina Johnson had been listed in
     the incident report since the beginning of this case and was listed
     as a witness at pre-trial conference. And I had discussed with
     both counsel, I believe, that my understanding was there was
     ongoing conversations between Katrina Johnson and Kendra
     Warren, I just simply didn’t know the nature of those statements
     until prepping her yesterday.

     THE COURT: Okay.        And the [c]ourt will not preclude the
     statements.

                                    ***

     THE COURT: All right. So that led us to additional discussion
     regarding cross[-]examination of Ms. Jones with respect to the
     summary or synopsis of her interview with Kendra Warren as
     reported in the police report and inquiry then into the existence
     or lack thereof or whether it was in the [possession] of the
     Commonwealth, [that being] Ms. Jones’ original [FCCYS] report.
     As a result of that discussion, the [c]ourt order[ed] disclosure of
     the [FCCYS] report to counsel for the Warrens so that they had
     the opportunity to review that prior to Ms. Jones’ testimony.

           The Commonwealth did not have that document in their
     possession but it was provided today. As a result of that
     disclosure today, there was a continuance request from both
     [Appellant] and Warren based on the statement from Ms. Johnson
     that we discussed just a moment ago and the [FCCYS] report that
     the [c]ourt ordered disclosed. And the continuance requests were
     denied because[,] although perhaps the particular statements

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J-S69009-18


      were not in the hands of defense counsel, they are consistent with
      prior information provided to counsel.

            Attorney Rahauser, I’ll let you put what you want on the
      record in order to preserve your objection.

      MRS. RAHAUSER: Nothing additional, thank you.

      THE COURT: Attorney Taccino, I want to give you the opportunity
      to place any additional information on the record to preserve your
      objection.

      MR. TACCINO: I believe your recitation of what has occurred and
      the objections by at least myself on behalf of [Appellant] are
      accurate.

      THE COURT: All right.

N.T. Trial at 67-68, 70-71.

      Now, in Appellant’s first issue on appeal, he contends that the trial court

erred by denying his request for a continuance.

      It is well settled that the decision to grant or deny a request for a
      continuance is within the sound discretion of the trial court.
      Commonwealth v. Pries, 861 A.2d 951, 953 (Pa. Super. 2004),
      appeal denied, 584 Pa. 693, 882 A.2d 478 (2005). Further a trial
      court’s decision to deny a request for a continuance

         will be reversed only upon a showing of an abuse of
         discretion. Commonwealth v. Ross, 465 Pa. 421, 422 n.
         2, 350 A.2d 836, 837 n.2 (1976). As we have consistently
         stated, an abuse of discretion is not merely an error
         judgment. Mielcuszny v. Rosol, 317 Pa. 91, 93–94, 176
         A. 236, 237 (1934). Rather, discretion is abused when “the
         law is overridden or misapplied, or the judgment exercised
         is manifestly unreasonable, or the result of partiality,
         prejudice, bias, or ill-will, as shown by the evidence or the
         record….” Commonwealth v. Chambers, 546 Pa. 370,
         387, 685 A.2d 96, 104 (1996) (quoting Mielcuszny, 317
         Pa. at 93–94, 176 A. at 236).

      Commonwealth v. Randolph, 582 Pa. 576, 873 A.2d 1277,
      1281 (2005) (quoting Commonwealth v. McAleer, 561 Pa. 129,
      748 A.2d 670, 673 (2000)).


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Commonwealth v. Prysock, 972 A.2d 539, 541 (Pa. Super. 2009).

       Appellant claims that, here, the court abused its discretion by denying

him a continuance where the Commonwealth did not disclose, until the

evening before trial, that Warren had made inculpatory statements to

Johnson.2    Appellant contends that a continuance would have allowed him

“additional time to seek to impeach [Johnson] based upon [her] prior

statements and/or prepare additional cross-examination.” Appellant’s Brief at

16.   Appellant also insists that “[t]here would have been no hardship or

prejudice to the Commonwealth to continue the matter to the next trial term,

pick a new jury[,] and re-subpoena the witnesses.” Id. at 17-18.

       Appellant’s argument does not convince us that the trial court abused

its discretion by denying his continuance request. Notably, Appellant does not

specifically explain how his cross-examination of Johnson would have differed

had he been given more time to prepare. Our review of the record also reveals

that Appellant requested - and was granted - five continuance requests

between December 15, 2016, and August 25, 2017. Given this record, we

cannot conclude that the court erred by refusing Appellant’s sixth request for




____________________________________________


2Within this first issue, Appellant makes no argument that a continuance was
warranted because of the late disclosure of Jones’ FCCYS report.




                                          - 11 -
J-S69009-18



additional time, where Appellant does not specify how that extra time would

have changed his cross-examination of Johnson.3

       In Appellant’s second issue, he contends that the court should have

excluded Warren’s inculpatory statements as a sanction to the Commonwealth

for violating its discovery obligations under the Pennsylvania Rules of Criminal

Procedure. Specifically, Appellant relies on Pa.R.Crim.P. 573(B)(1)(b), which

requires the Commonwealth to turn over an inculpatory statement “that is in

the possession or control of the attorney for the Commonwealth.”

       Appellant     concedes     that    nothing   in   the   record   refutes   the

Commonwealth’s claim that it was not aware of (and, thus, it did not possess)

Warren’s inculpatory statements until the eve of trial, and that it immediately

turned over that evidence to Appellant. Appellant’s Brief at 20. However,

Appellant “request[s] a reasonable extension of the law in this instance as to

the meaning of ‘control’ for purposes of Rule 573.” Id. Essentially, he asks

us to add to Rule 573 a requirement that the Commonwealth must also turn

over any inculpatory statements that it could discover with reasonable

diligence. Id. at 21. For instance, Appellant claims that the Commonwealth

could have discovered and disclosed Jones’ FCCYS report earlier, as the

affidavit of probable cause indicated that Warren had made inculpatory
____________________________________________


3 We also note that Appellant has not demonstrated that he was prejudiced
by the court’s refusal to grant him a continuance. Appellant took the stand
and admitted that he gave K.P. alcohol and marijuana, and that he put a
deadbolt on K.P.’s door. Accordingly, we fail to see how Appellant was
prejudiced by his alleged inability to fully cross-examine Johnson about
Warren’s similar, out-of-court admissions.

                                          - 12 -
J-S69009-18



statements    to   Jones.   Therefore,   Appellant   asks   us   find   that   the

Commonwealth violated Rule 573 as he proposes we amend it, and that the

trial court erred by not precluding the admission of Warren’s inculpatory

statements as a sanction for that violation.

      Appellant’s argument is completely unconvincing. Initially, this Court

does not have the power to add a reasonable diligence requirement to Rule

573. The Pennsylvania Constitution provides that the Pennsylvania Supreme

Court “shall have the power to prescribe general rules governing practice,

procedure, and the conduct of all courts.” Pa. Const. Art. V, § 10. “This power

to establish rules of procedure rests exclusively” with the Supreme Court.

Commonwealth v. Liston, 977 A.2d 1089, 1093 (Pa. 2009) (emphasis

added). Here, Appellant concedes that the Commonwealth did not possess

Warren’s inculpatory statements until the eve of trial, at which point it

immediately informed defense counsel of that evidence. Thus, Rule 573 was

not violated, and the court did not err in admitting Warren’s inculpatory

statements.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/24/2018


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