Commonwealth v. Hoffman

• Decision Date: 31 October 2018
• Docket Number: No. 2002 MDA 2017,No. 1984 MDA 2017,1984 MDA 2017,2002 MDA 2017
• Citation: 198 A.3d 1112
• Parties: COMMONWEALTH of Pennsylvania, Appellant v. Pietrina Cecilia HOFFMAN Commonwealth of Pennsylvania v. Pietrina Cecilia Hoffman, Appellant
• Court: Pennsylvania Superior Court

198 A.3d 1112

COMMONWEALTH of Pennsylvania, Appellant

v.Pietrina Cecilia HOFFMAN

Commonwealth of Pennsylvania

v.Pietrina Cecilia Hoffman, Appellant

No. 1984 MDA 2017

No. 2002 MDA 2017

Superior Court of Pennsylvania.

Submitted August 13, 2018

Filed October 31, 2018

Michael A. O’Pake, District Attorney, and John T. Fegley, Assistant District Attorney, Pottsville, for Commonwealth, appellant. (at 1984)

Christine A. Holman, Assistant District Attorney, Pottsville, for Commonwealth, appellee. (at 2002)

Kent D. Watkins, Pottsville, for Hoffman.

BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and STRASSBURGER^* , J.

OPINION BY McLAUGHLIN, J.:

After a jury found Pietrina Cecilia Hoffman guilty of various crimes in the tragic death of an infant, N.D., the trial court granted her motion for a judgment of acquittal on the convictions for third-degree murder and aggravated assault, concluding that the Commonwealth had failed to present sufficient evidence of malice. The Commonwealth has appealed from the order entering the judgments of acquittal. Hoffman has also filed an appeal and challenges her judgment of sentence on various grounds.

We now consolidate the two appeals, and for the reasons that follow, we affirm the trial court in all respects, with one exception. As the court imposed sentence on Hoffman for two counts of endangering the welfare of a child, graded as felonies of the third degree, without any evidence establishing a course of conduct and where the jury was not charged to make such finding, we vacate the judgment of sentence and remand.

We derive the following statement of facts from the trial court's opinion addressing Hoffman's post-sentence motion. See Trial Ct. Opinion, filed 11/21/2017, at 10-17. In the afternoon of January 10, 2016, emergency personnel were dispatched to Hoffman's residence, where they discovered an infant, later identified as N.D., lying on the floor, dead. Also present were Hoffman and another young child, A.W. In her initial statement to police, Hoffman indicated that she went to sleep with A.W. on a loveseat in her living room. She said she had put N.D. to sleep on the floor with a blanket because she wouldn't sleep in her playpen. According to Hoffman, she woke at 2:00 a.m., noticed that N.D. was purple and cold to the touch, and fell back asleep until 2:00 p.m., whereupon she called 9-1-1.

Thereafter, Hoffman gave two statements to police in which certain details of her story changed. These discrepancies made it difficult for authorities to establish a timeline of events leading to N.D.'s death. For example, in her first statement, Hoffman suggested that N.D. was warm at 5:00 a.m., but that she was unsure if N.D. was breathing. In a second statement, Hoffman indicated that N.D. was both alive and dead at 5:00 a.m. Hoffman maintained that if she knew something was wrong, she would have called 9-1-1. In both of her statements to police, Hoffman indicated that she had taken numerous sleeping aids over the course of the day preceding N.D.'s death, including several Soma pills, liquid ZzzQuil, and a morphine

pill. Further, during her second statement, Hoffman openly wondered how she had suffered a bruise to one leg and if she had fallen off the loveseat onto N.D.

At trial, the Commonwealth presented expert testimony from the coroner, who concluded that N.D. died from asphyxiation

by smothering approximately four to 12 hours before emergency personnel arrived. The coroner also found evidence of abrasions and internal hemorrhaging. According to the coroner, N.D. suffered an impact, followed by significant weight and pressure lasting approximately two minutes. The coroner agreed that the injuries suffered by N.D. could have been caused by a large person falling off a couch in her sleep or drug-induced stupor onto the child. The coroner also suggested that N.D. may have survived if resuscitation efforts had been started immediately.

The children's caretaker, Cecelia Gray, testified that Hoffman cared for the children several days per week and that Hoffman mistakenly believed that she was A.W.'s grandmother. According to Gray, Hoffman had discussed adopting the children. On the day preceding N.D.'s death, Hoffman had taken her for medical treatment because of a cold.

Following trial, a jury convicted Hoffman of third-degree murder, involuntary manslaughter, aggravated assault, two counts of endangering the welfare of a child, two counts of recklessly endangering another person, and person not to possess a firearm.¹ After a presentence investigation, the trial court sentenced Hoffman to an aggregate 17 to 34 years of incarceration.

Hoffman timely filed a post-sentence motion, asserting (1) the sentence for endangering the welfare of a child merges with involuntary manslaughter; (2) imposition of the sentencing enhancement defined at 204 Pa.Code § 303.9 violates the mandates of Apprendi v. New Jersey , 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) ;² (3) the court erred in permitting the Commonwealth to amend its Information after presentation of its case in chief; and (4) the Commonwealth failed to present sufficient evidence of malice as required to establish third-degree murder and aggravated assault. Hoffman's Post-Sentence Motion, 08/16/2017. Following briefing by the parties, the trial court granted judgment of acquittal on Hoffman's fourth claim and vacated her judgment of sentence, but denied all other relief. See Order, 11/21/2017. Thereafter, the court resentenced Hoffman to an aggregate five years and nine months to 12 years of incarceration.

The Commonwealth timely appealed from the order granting in part Hoffman's post-sentence motion and, in its Pa.R.A.P. 1925(b) statement, challenged the court's conclusion that the Commonwealth had failed to establish malice. Hoffman timely appealed from the judgment of sentence. In her court-ordered Pa.R.A.P. 1925(b) statement, Hoffman renewed claims first made in her post-sentence motion that were rejected by the court and further asserted that the Commonwealth had presented insufficient evidence to sustain a conviction for recklessly endangering another person as to A.W. In a responsive statement to the parties' appeals, the trial court directed this Court's attention to its November 21, 2017 opinion. The trial court also concluded that Hoffman's sufficiency claim was waived for failing to specify the elements of reckless endangerment that the Commonwealth failed to establish. See Trial Ct. Pa.R.A.P. 1925(a) Statement.

The Commonwealth's Appeal

In its appeal, the Commonwealth asserts the trial court erred when it determined that the Commonwealth had presented insufficient evidence of malice necessary to support a conviction for either third-degree murder or aggravated assault. See Commonwealth's Br. (as Appellant) at 4. According to the Commonwealth, viewed in the light most favorable to it as the verdict winner, the evidence clearly established malice. Id. at 15. In particular, the Commonwealth asserts that Hoffman's "decision to return to bed after believing [N.D.] may be dead was more than likely the result of her self-induced cocktail of medication." Id. The Commonwealth maintains that, had Hoffman sought help immediately, N.D. might have survived. Id. at 19. Moreover, according to the Commonwealth, Hoffman's inconsistent statements to police regarding the timeline of events demonstrated a guilty conscience. Id. at 18. Finally, the Commonwealth suggests that the jury was free to infer from the coroner's testimony that the initial force of impact suffered by N.D. was intentional. Id. at 20.

Procedurally, in her post-sentence motion, Hoffman sought judgment of acquittal as to third-degree murder and aggravated assault. In so doing, Hoffman challenged the sufficiency of the evidence presented to establish the element of malice, required for both crimes. The following standard is well settled:

In passing upon a post-verdict motion for judgment of acquittal, a trial court is limited to determining the presence or absence of that quantum of evidence necessary to establish the elements of the crime. To determine the legal sufficiency of evidence supporting a jury's verdict of guilty, this Court must view the evidence in the light most favorable to the Commonwealth, which has won the verdict, and draw all reasonable inferences in its favor. We then determine whether the evidence is sufficient to permit a jury to determine that each and every element of the crimes charged has been established beyond a reasonable doubt. It is the function of the jury to pass upon the credibility of the witnesses and to determine the weight to be accorded the evidence produced. The jury is free to believe all, part or none of the evidence introduced at trial. The facts and circumstances established by the Commonwealth need not be absolutely incompatible with the defendant's innocence, but the question of any doubt is for the jury unless the evidence be so weak and inconclusive that as a matter of law no probability of fact can be drawn from the combined circumstances.

Commonwealth v. Feathers , 442 Pa.Super. 490, 660 A.2d 90, 94-95 (1995) (formatting modified; internal quotation marks and citations omitted).³

In Pennsylvania, murder is a killing conducted with "malice aforethought." Commonwealth v. Packer , 641 Pa. 391, 168 A.3d 161, 168 (2017) (citing Commonwealth v. Santos , 583 Pa. 96, 876 A.2d 360, 363 (2005) ). Murder of the third degree is defined as "[a]ll other kinds of murder," i.e. , in contrast to those murders committed intentionally (first-degree) or during the perpetration of a felony (second-degree). 18 Pa.C.S.A. § 2502. In relevant part, aggravated assault is established where a defendant "attempts to cause serious bodily injury to another, or causes such injury intentionally, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life." 18 Pa.C.S.A. § 2702(a)(1). The mens rea required for both third-degree murder and...