Commonwealth v. Brill

• Docket Number: 785 MDA 2022,J-S08042-23
• Decision Date: 31 May 2023
• Parties: COMMONWEALTH OF PENNSYLVANIA v. JANET GIULIA BRILL Appellant
• Court: Pennsylvania Superior Court

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COMMONWEALTH OF PENNSYLVANIA v. JANET GIULIA BRILL Appellant

No. 785 MDA 2022

No. J-S08042-23

Superior Court of Pennsylvania

May 31, 2023

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37

Appeal from the Judgment of Sentence Entered December 29, 2021 In the Court of Common Pleas of York County Criminal Division at No(s): CP-67-CR-0000212-2020

Joseph D. Seletyn, Esq.

BEFORE: OLSON, J., McCAFFERY, J., and COLINS, J. ^[*]

MEMORANDUM

COLINS, J.

Appellant Janet Giulia Brill, appeals from the judgment of sentence imposed following her conviction, after a jury trial, of two counts of intimidation, retaliation, or obstruction in child abuse cases-intimidation or intent to intimidate person to give false or misleading information.^[1] On appeal, Appellant challenges the sufficiency of the evidence, argues that the trial court wrongfully denied her suppression motion, and contends that her sentence of two to four years' imprisonment was excessive. We affirm one of Appellant's convictions, reverse the other conviction, vacate her judgment of sentence, and remand for resentencing.

The victims in these matters are X.B. and N.B., Appellant's minor grandsons who were approximately 11 and 13 respectively, during the period of the events relevant to this case. In April 2019, the Pennsylvania State Police ("PSP") received a ChildLine report^[2] that X.B. was the victim of sexual abuse perpetrated by another family member, D. N.T. Trial at 99; Joint Ex. 1 (Stipulation), ¶2. At the time of that report, X.B., N.B., and D. all lived with Appellant at her home in York County, but, following the sexual abuse report, X.B. was removed from Appellant's home and began to reside at the York County Youth Development Center ("YDC"). N.T. Trial at 107-08, 122, 148-49, 160-61. PSP then received a subsequent ChildLine report in July 2019 that Appellant had physically abused X.B. and N.B. by striking them with a stick. N.T. Trial at 99, 181-82; Joint Ex. 1 (Stipulation), ¶1.

A forensic interview was conducted with X.B. at the York County Children's Advocacy Center ("CAC") on May 1, 2019 regarding the sexual abuse report. N.T. Trial at 130, 199. X.B. was then interviewed at CAC with respect to the second ChildLine report, related to the allegations of physical abuse, on July 29, 2019, while N.B. was interviewed at CAC on July 31, 2019. Id. at 99, 131-32, 183; Joint Ex. 1 (Stipulation), ¶¶3, 4. During N.B.'s interview, he disclosed the fact that he had made an audio recording of a conversation with Appellant using his cell phone that captured Appellant instructing N.B. on what to say to authorities during the interview. N.T. Trial at 183-84. PSP collected N.B.'s phone as evidence at that time. Id. at 183-84.

After being charged with the above-stated offenses,^[3] Appellant filed a suppression motion challenging the use of N.B.'s audio recording in this prosecution as violative of the Wiretapping and Electronic Surveillance Control Act ("Wiretap Act"), 18 Pa.C.S. §§ 5701-5782. A suppression hearing took place on September 24, 2020. On November 5, 2020, the trial court filed an opinion and order denying Appellant's motion, ruling that the recording fell within the "crime of violence" exception to the Wiretap Act, see 18 Pa.C.S. § 5704(17). Trial Court Opinion, 11/5/20, at 5-6.

The jury trial began on November 15, 2021 with the following witnesses testifying at trial: X.B., N.B., Lauren Carter, a forensic interviewer at CAC, and PSP Troopers Coty Zorbaugh and Tina Peters. During their testimony, X.B. and N.B. each described conversations with Appellant in which she requested that they make untrue statements during their CAC interviews. In addition, the audio recording of N.B.'s conversation with Appellant was played to the jury. Ms. Carter described her involvement in conducting the forensic interviews with X.B. and N.B. at CAC, and Troopers Zorbaugh and Peters testified as to their role in the investigation of the ChildLine reports of sexual and physical abuse and the witness intimidation investigation arising therefrom.

On November 18, 2021, the jury found Appellant guilty of both counts of intimidation, retaliation, or obstruction in child abuse cases, one count each as to N.B. and X.B. On December 29, 2021, the trial court sentenced Appellant in the aggravated range to consecutive one-to-two-year terms of imprisonment at each count and a $5,000 fine at each count. Appellant filed a post-sentence motion, which the trial court denied after an April 25, 2022 hearing. Appellant then filed this timely appeal.^[4]

Appellant presents the following issues to this Court on appeal:

[1.] Did the lower court err in denying [Appellant's] Motion to Suppress the recording of her statements in violation of the Wiretap Act where she did not consent to the recording, she held a reasonable expectation that she was not being recorded, and the exception to the Wiretap Act that the lower court found applicable does not fit this case because there was no expectation that the recording would capture evidence of a crime of violence?

[2.] Was the evidence [] insufficient to prove beyond a reasonable doubt that [Appellant] intimidated or attempted to intimidate either X.B. or N.B. where neither child indicated he ever felt threatened or scared, X.B. gave virtually no details on what [Appellant] said or how she said it, and N.B.'s recorded statement was filled with laughter and jokes that failed to suggest actual or attempted intimidation?

[3.] Did the lower court abuse its discretion where it imposed an excessive aggregate sentence that reflects no consideration of [Appellant's] medical condition and rehabilitative needs?

Appellant's Brief at 5 (reordered for ease of disposition).

Appellant first challenges the denial of her suppression motion, which was premised on her argument that N.B.'s nonconsensual recording of a conversation with her violated the Wiretap Act. Our standard of review of a trial court's ruling on a suppression motion is "whether the record supports the findings of fact of the suppression court and whether the legal conclusions drawn from those findings are correct." Commonwealth v. Byrd, 235 A.3d 311, 319 (Pa. 2020) (citation omitted); see also Commonwealth v. Rosario, 248 A.3d 599, 607 (Pa. Super. 2021). We are bound by the facts found by the trial court so long as they are supported by the record, but we review its legal conclusions de novo. Byrd, 235 A.3d at 319; Rosario, 248 A.3d at 607-08. The trial court has sole authority to pass on the credibility of witnesses and the weight to be given to their testimony. Rosario, 248 A.3d at 608. Our scope of review is limited to the evidence presented by the Commonwealth as the prevailing party and any uncontradicted evidence presented by the defendant. Commonwealth v. Mason, 247 A.3d 1070, 1080 (Pa. 2021); see also Commonwealth v. Kane, 210 A.3d 324, 329 (Pa. Super. 2019).

"[I]n general, the Wiretap Act prohibits the interception, disclosure or use of any wire, electronic or oral communication." Mason, 247 A.3d at 1080 (quoting Byrd, 235 A.3d at 319). When a party believes that an "oral communication" will be offered into evidence at a proceeding in violation of the Wiretap Act, the party may file a motion to exclude the communication from consideration in the proceeding. 18 Pa.C.S. § 5721.1(b); Mason, 247 A.3d at 1080. An oral communication is defined under the Wiretap Act as "[a]ny oral communication uttered by a person possessing an expectation that such communication is not subject to interception under circumstances justifying such expectation." 18 Pa.C.S. § 5702.

N.B. was the only witness to testify at the suppression hearing. N.B. testified that, prior to the conversation at issue, X.B. had been removed from Appellant's house and social workers "were coming by questioning us" and they were "getting ready for the Court and stuff." N.T., 9/24/20, at 7. N.B. stated that he had been "coach[ed]" on at least one prior occasion by Appellant to falsely state to social workers and others that she had not perpetrated any physical abuse towards N.B. and X.B. Id. at 8-10. N.B. did not "know the exact reason" why Appellant informed him not to disclose the abuse, but he knew "it was bad" and "so she doesn't get in trouble." Id. at 10, 25. N.B. was playing video games when Appellant called him into her room for a conversation; he testified that he caused his phone to begin recording at the outset of the conversation without knowing definitively that she would proceed to coach him, but with the expectation that she might do so. Id. at 7, 9-10. N.B. stated that only he and Appellant were in the room and that the conversation lasted for over three hours. Id. at 7, 12. In addition to N.B.'s testimony, the parties jointly submitted a copy of the recording for the court's review. Id. at 25-26.

The Commonwealth argued at the hearing and in its post-hearing brief that the suppression motion should be denied because the recording falls within the Wiretap Act's "crime of violence" exception, which is expressly defined to include the offense of intimidation of witness or victim. See 18 Pa.C.S. §§ 4952(a), (b) (setting forth crime of intimidation of witness or victim), 5702 (defining crime of violence), 5704(17) (stating that it shall not be unlawful for victim or witness to intercept communication if he or she has reasonable suspicion that intercepted party has committed, is committing, or is about to commit a crime of violence and the recording will contain evidence of that crime). In its opinion supporting the denial of the suppression motion, the trial court reviewed N.B.'s testimony and found that N.B.'s act of recording his conversation with Appellant fell within the stated exception as he...