Commonwealth v. McClure

• Decision Date: 08 August 2016
• Docket Number: No. 147 MDA 2015,147 MDA 2015
• Citation: 2016 PA Super 171,144 A.3d 970
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Jalene R. McCLURE, Appellant.
• Court: Pennsylvania Superior Court

144 A.3d 970

2016 PA Super 171

COMMONWEALTH of Pennsylvania, Appellee

v.Jalene R. McCLURE, Appellant.

No. 147 MDA 2015

Superior Court of Pennsylvania.

Argued Feb. 2, 2016.

Filed Aug. 8, 2016.

Bernard F. Cantorna, State College, for appellant.

Bruce L. Castor, Jr., Assistant District Attorney, Bellefonte, for Commonwealth, appellee.

BEFORE: PANELLA, STABILE, and FITZGERALD,^* JJ.

OPINION BY STABILE

, J.:

Appellant, Jalene R. McClure, appeals from the judgment of sentence entered on October 31, 2014 following her convictions of aggravated assault, simple assault, two counts of endangering the welfare of a child, and recklessly endangering another person.¹ Appellant also has filed an application for relief pursuant to Pa.R.A.P. 123

in response to which the Commonwealth filed a motion to strike. We deferred disposition of both motions. After considered review and for the reasons that follow, we vacate Appellant's judgment of sentence and remand for a new trial. In addition, we deny both parties' motions as moot.

The record reflects that Appellant ran a daycare business out of her home as of August 18, 2010. When the mother of five-month old P.B., one of the children entrusted to Appellant's care, picked up her daughter from Appellant's home on August 18, Appellant told the child's mother that P.B. was sick and had vomited. While driving home, the mother noticed that P.B. was losing consciousness and took her to the hospital. It was determined that P.B. had sustained head injuries

, including a fractured skull and retinal hemorrhaging.

When first interviewed by Detective Dale Moore and a CYS employee on the evening of August 18, 2010, Appellant insisted nothing happened to P.B. at the daycare facility on August 18. On August 23, 2010, during a subsequent interview with Detective Moore and the CYS employee, Appellant gave a verbal statement as well as a written statement, indicating that she had tripped while carrying P.B. and fell, hitting P.B.'s head on a car seat. At trial, an expert testified P.B.'s injuries were consistent with a child who was shaken. The expert opined that the injuries were sustained at Appellant's daycare facility on August 18.

At the conclusion of the trial, a jury found Appellant guilty of the crimes listed above. The trial judge sentenced Appellant to an aggregate sentence of ten to twenty years in prison. Appellant filed post-sentence motions, which the trial court denied. This timely appeal followed. Appellant complied with the trial court's directive to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P.1925(b)

and subsequently requested the opportunity to file a supplemental Rule 1925(b) statement, a request the trial court granted.²

In this appeal, Appellant presents nine issues. For ease of discussion, we have reordered the issues as follows:

1. To admit evidence on motive, there must be a logical connection between the crime and the proffered evidence. Was evidence of a contentious divorce two years after the alleged crime relevant, unfairly prejudicial and violate the spousal privilege rule?

2. Did the trial court commit error when it: (a) allowed Detective Dale Moore to admit the redacted written statement of Ms. McClure that changed an explanation of an accident into a confession or statement against interest; (b) allowed Detective Dale Moore to give improper evidence of both his and a CYS worker's opinion regarding the veracity of [Appellant's] statement; and (c) allowed Detective Dale Moore to reenact [Appellant's] demonstration of a fall in a way that was not demonstrated by [Appellant]?

3. It is error to admit evidence offered solely to engender sympathy for a victim and not relevant to a central issue at trial. Did the trial court abuse its discretion when it allowed testimony of [P.B.'s] mother regarding an unrelated diagnosis of esotropia

, crossing of the eyes, which occurred two years after the alleged incident; and allowed the mother to testify regarding trips to Easter Seals and the possibility of re-injury?

4. An accused has a fundamental right to present relevant evidence to rebut motive and bias. Did the court abuse its discretion when it precluded defense witnesses from testifying how [Appellant] ran her daycare; managed the stress and number of children; and that the daycare was not chaotic, unruly or stress-provoking; when the Commonwealth's theory was that [Appellant] temporarily lost control and violently assaulted [P.B.] because of that stress?

5. An accused has a constitutional right to admit evidence that logically tends to establish a material fact in the case. Did the trial court commit error when it precluded the admission of Detective Dale Moore's October 2010 statement that there was insufficient evidence to prosecute the case at that time and no charges were being filed, when the detective testified that delay in charging was due to other events?

6. Agreements with defense counsel not to question an accused without her lawyer promotes the right to a lawyer and the prompt and fair admission of the criminal justice system. Did the trial court commit error when it denied [Appellant's] motion to suppress her statements after exercising her right to an attorney and in violation of an agreement that she

would not be interviewed without her attorney present?

7. A sentence must be reasonable and not excessive, consistent with protection of the public, gravity of the offense and take into account the rehabilitative needs of the defendant. Did the trial court abuse its discretion when it sentenced [Appellant] to an aggregate sentence of ten to twenty years, which exceeded the aggravated range of five and one-half years, failing to take into consideration [Appellant's] lack of prior criminal record; character; family support; rehabilitation potential; and/or recuse itself from sentencing?

8. A judge must recuse himself when his impartiality or bias can reasonably be questioned. Do hundreds of text messages between the court and the district attorney's office; ex parte communications; photographs posted on social media with members of the district attorney's office; and patently false statements made at the motion to recuse hearing raise reasonable questions regarding the court's bias and impartiality?

9. Should the appellate court remand this case for a hearing based upon court reporter Maggie Miller's affidavit regarding the district attorney's ex parte texts to the trial court in a previous criminal case?

Appellant's Brief at 5–7 (capitalization omitted).

Appellant's first five issues present evidentiary challenges. As our Supreme Court recently reiterated:

The admissibility of evidence is a matter for the discretion of the trial court and a ruling thereon will be reversed on appeal only upon a showing that the trial court committed an abuse of discretion. Commonwealth v. Sherwood, 603 Pa. 92, 982 A.2d 483, 495 (2009)

. “An abuse of discretion may not be found merely because an appellate court might have reached a different conclusion, but requires a result of manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of support so as to be clearly erroneous.” Id. (quoting Commonwealth v. Dillon, 592 Pa. 351, 925 A.2d 131, 136 (2007) (citation omitted)).

Commonwealth v. Poplawski, ––– Pa. ––––, 130 A.3d 697, 716 (2015)

.

In her first issue, Appellant contends the trial court abused its discretion by admitting evidence relating to Appellant's divorce in August of 2012, two years after the events giving rise to this case. Appellant contends the testimony was irrelevant, unfairly prejudicial and violated the spousal privilege rule. We agree with Appellant that the Commonwealth's references—during its direct examination of Appellant's former husband—to such matters as (1) an argument between Appellant and her husband during which he allegedly suggested he should ask the police to investigate how she ran the daycare, (2) Appellant and her husband separating in 2012, (3) police presence at the marital home as Appellant was removing belongings in August 2012, (4) references to an “emotional meltdown” at one or two unspecified times, and (5) “out of control spending” on Appellant's part, either implicate the spousal privilege or were irrelevant to the events of August 18, 2010 and, consequently, were unfairly prejudicial to Appellant. See Notes of Testimony, 9/9/14, at 99–113. However, our inquiry does not end there. As our Supreme Court explained in Poplawski:

In the event of an erroneous admission of evidence, a verdict can still be sustained if the error was harmless. See Commonwealth v. Wright, 599 Pa. 270, 961 A.2d 119, 144 (2008)

. An error is

harmless if it could not have contributed to the verdict, or stated conversely, an error cannot be harmless if there is a reasonable possibility the error might have contributed to the conviction. Id.

....

The Commonwealth has the burden of proving harmless error beyond a reasonable doubt. Id. at 143

.

Poplawski, 130 A.3d at 716

.

The Commonwealth suggests the “evidence concerning Appellant's mental state did not cover any time period other than the time period relevant to this crime.” Commonwealth Brief at 23. Further, “[t]he Commonwealth sought to prove Appellant suffered under extreme stress in 2010 which in turn supported a reasonable inference that the stress was a contributing factor to her violent attack and injuries sustained by [P.B.].” Id. While the Commonwealth may have been seeking to prove that stress resulted in actions by Appellant on August 18, 2010, the questions posed to Appellant's former husband were not even remotely restricted to that time and several specifically referenced August of 2012. Because there is a “reasonable possibility” that the error in permitting the testimony “might have contributed to the conviction,” see Poplawski, 130 A.3d at 716

, we do not find the error harmless. As this Court has recognized, “[w]hen improperly admitted testimony may have affected a...