Appeal from the Judgment of Sentence of October 14, 2010 in the Court of Common Pleas of Delaware County Criminal Division at No(s): CP-23-CR-0002523-2009
The opinion of the court was delivered by: Mundy, J.:
BEFORE: BENDER, MUNDY, AND OTT, J.J.
Appellant, Stephen Fischere, appeals from the October 14, 2010 aggregate judgment of sentence of 10 to 20 years' imprisonment imposed after he was found guilty of aggravated assault and endangering the welfare of a minor.*fn1 After careful review, we affirm the judgment of sentence.
The trial court summarized the relevant facts of this case as follows.
On the evening of April 28, 2009, the Aldan Borough Police Department responded to a 911 call at 110 West Maryland Avenue, the residence of Barbara Grogan and [Appellant]. The call was received at approximately 6:40 P.M., and Sergeant James Fink, who was on duty that evening and already in the area, arrived on location within minutes of the call. Upon arrival, [Appellant] was observed outside of the residence.  Appellant appeared upset and directed Sergeant Fink into the downstairs apartment, which belonged to his neighbor, Amber Graff-Eder, and where a small child, (herein after referred to as Z.G.), was observed lying on the living room floor. Z.G. appeared to be unresponsive, but upon closer observation was observed to be breathing shallowly. Sergeant Fink then briefly left the residence to obtain his CPR mask, which was located outside in his patrol vehicle. Sadly, by the time he returned, Z.G. was no longer breathing.
In an effort to resuscitate the child, Sergeant Fink placed his CPR mask on Z.G. and administered two breaths. By this time, Eric Davis, an EMT with Fitzgerald Mercy Hospital, had arrived on the scene and instructed Sergeant Fink to take Z.G. to the ambulance which he had parked outside of the residence. Sergeant Fink did as instructed, and Z.G. was transported to Fitzgerald Mercy Hospital for further care.
At the hospital, Maureen McCullian, a nursing supervisor on duty that evening, was told by Sergeant Fink and Eric Davis that the child had fallen down some steps. Ms. McCullian found this explanation to be at odds with the severity of the injuries and condition of the child upon his arrival to the hospital. Dr. Michelle Azer, who was also on duty at the hospital that evening, was called to the emergency room upon Z.G.'s arrival. Dr. Azer arrived to the emergency room at approximately 7:00 P.M., and, despite the efforts of herself and her medical staff, was unable to get the child's heart started.
At Appellant's [jury] trial [on July 19, 2010], Dr. Azer described the emergency room as chaotic, and relayed to the jury that she too was told that the child had fallen down five to six stairs. Dr. Azer explained that she had never before seen cardiac arrest from a fall down several stairs. Both Ms. McCullian and Dr. Azer observed bruises on the child's body.
On the day of the incident, Barbara Grogan, Z.G.'s mother, was working at a local diner. Her friend Tamera had driven her to work and had then taken Barbara's two children, Z.G. and X.G., back to Tamera's house. Upon the conclusion of her shift, Barbara was to be picked up by her boyfriend,  Appellant, after he himself finished work. In addition to giving Barbara a ride to work, Tamera had also agreed to watch Barbara's children until  Appellant finished work and was able to pick them up. Appellant did retrieve the children from Tamera's home around 5:15 that evening and then returned to the apartment he and Barbara shared at 110 West Maryland Avenue, mentioned above.
That evening Barbara received a call to her cell phone around 6:00 P.M., but could not answer the call while she was working. Later a call was made to her workplace, and Barbara was informed that her oldest son, Z.G., had been rushed to the hospital. Barbara was given a ride to the hospital and waited in an interview room while Z.G. was treated by the medical staff at the hospital. Shortly thereafter Barbara was informed by the doctor that, despite the doctors' efforts, her son Z.G. did not survive.
Following this incident, detectives William Gordon and Thomas Worrilow Jr., of the Delaware County Criminal Investigation Division, commenced an investigation into the cause of Z.G.'s death. Appellant, who was the last person to see Z.G. alive, recounted the events leading up to his death and explained that prior to the incident Z.G. had been eating a donut. He stated that he had been gathering the children's belongings before heading to his brother's home, where he intended to stay until Barbara's shift was over. Appellant explained that he had been preoccupied and that tragically, Z.G. had tripped over a seatbelt that had been hung over a railing and had fallen down the stairs. He explained that when he ran to Z.G.'s aid he was not breathing. Appellant explained that he performed CPR and then ran to his neighbor's apartment and asked her to call 911.
Following Z.G.'s death, an autopsy was performed by Delaware County's Chief Medical Examiner, Dr. Frederick Hellman. Dr. Hellman concluded that the manner of death was homicide caused by multiple blunt force trauma to various parts of his body and high neck subluxation. Dr. Hellman, in his professional opinion, did not believe that Z.G.'s injuries were consistent with the story provided by Appellant. Similarly, Dr. Lucy Rourke- Adams, a pediatric neuropatholigist at Children's Hospital of Philadelphia, who examined several of the child's organs following his death, also found it unlikely that Z.G.'s injuries could have been caused by a fall down the steps.
In the case sub judice, the Commonwealth argued that there were pre-existing bruises on Z.G. before the incident on April 28, 2009. The Commonwealth contended that these bruises were not the result of any sort of bruising disorder, but had been inflicted upon the child by the Appellant. The Commonwealth maintained that, on the night of the incident, Appellant had beaten the child to death, and the Commonwealth suggested that the bruising on the child was illustrative of this abuse. In order to establish this theory, the Commonwealth called several medical professionals at trial, some of whom had seen the child arrive at the emergency room on April 28, 2009[,] and some of whom had examined the child in the days leading up to and following his death. These witnesses included Dr. Richard Kaplan, Z.G.'s pediatrician; Dr. Michelle Azer, who was on duty in the emergency room on April 28, 2009 when Z.G. was brought in and unresponsive; Dr. Lucy Rourke-Adams, a pediatric neuropathologist at Children's Hospital of Philadelphia who examined Z.G. following his death, and Dr. Fredrick Hellman, the Chief Medical Examiner in Delaware County.
Additionally, the Commonwealth introduced pre-autopsy photographs of Z.G. to illustrate the condition of his body following the incident. Several of these photographs were shown to Barbara and Tamera during direct examination. Additional photographs were also shown to several of the medical professionals mentioned above, including Dr. Hellman. Several photographs were also shown to the jury during the trial and again during deliberations.
As set forth above, Tamera Campanese, Barbara's best friend, had spent the day caring for Z.G. and his brother on April 28, 2009. At trial Tamera testified that Z.G. seemed happy and had been playing outside in a small pool with her daughter that day. At trial Tamera was shown the pre-autopsy photographs of Z.G. Tamera testified that she did not recall seeing any unusual marks on Z.G.'s body that day.
Barbara was also shown several pre-autopsy photographs at trial. When shown these photographs, Barbara testified that she had not seen the bruising illustrated in the photographs on Z.G. before. On cross-examination, Barbara testified that she had seen some bruising around the child's penis about a week prior to the incident, but explained that it did not look anything like the bruising in the photographs. Barbara explained that she had noticed excessive bruising on Z.G. and, although she claimed she had directly observed the resultant bruises from various bumps and blunders, she was "concerned when they just started popping up like all over the place."
Dr. Richard Kaplan, the child's pediatrician, reported that, because of Barbara's concern over these bruises, tests had been performed on Z.G. several days before the day of his death to determine whether the child had a bruising disorder. The results of this test came back normal. Additionally, after tests were conducted on the child post mortem, the medical examiner, Dr. Hellman concluded that several of the bruises observed on Z.G.'s body had been inflicted anywhere from one hour to four hours before the child's death.
Dr. Hellman explained his findings in great detail at trial, and recounted that in addition to the bruises observed on the child's body, Z.G. had injuries to several of his organs, including his liver and spleen. Z.G. also had a subluxation, or "a loosening to tearing of the ligaments between the vertebrae and the spine", in his upper neck bone between the base of his skull and his first cervical vertebrae. Dr. Hellman explained that this type of injury occurs as a result of "considerable force." He explained that there was no bleeding observed at this site, but stated that he did find blood in Z.G.'s peritorial cavity, which he found to be unusual based upon the circumstances that were alleged to have surrounded the child's death.
Trial Court Opinion, 7/20/11, at 1-6 (citations and footnotes omitted).
Additionally, during the Commonwealth's case in-chief, defense counsel's cross-examination of Detective William Gordon raised "the inference that [Detective Gordon] did not ask enough or did not ask the proper questions of [Appellant] during the interview which took place at the hospital[.]" N.T., 7/22/10, at 125.
Detective Gordon and another detective took Appellant's initial statement at the hospital on April 28, 2009. Later that night, Detective Gordon spoke to Dr. Azer who informed the detectives that Appellant's statement was inconsistent with the injuries on Z.G.'s body. Id. at 128. Detective Gordon then returned to Appellant for another interview, at which time, Appellant declined to answer any more questions without first speaking to an attorney. Id.
After defense counsel finished cross-examining Detective Gordon, the Commonwealth asked the trial court for a ruling that if Appellant were to testify, the Commonwealth would be permitted to cross-examine him using his pre-arrest silence with regards to Detective Gordon's request for a second interview. The Commonwealth argued it would be permitted to do so as a fair response to the inferences raised by defense counsel during Detective Gordon's cross-examination. The trial court agreed.
At the conclusion of the trial, the jury found Appellant guilty of aggravated assault, and endangering the welfare of a minor. On October 14, 2010, the trial court imposed an aggregate judgment of sentence of 10 to 20 years' imprisonment. Appellant did not file any post sentence motions. On November 9, 2010, Appellant filed a timely notice of appeal.
On appeal, Appellant raises one issue for our review.
Whether the trial court erred in ruling that the Commonwealth would be permitted to cross-examine [Appellant] regarding his pre-arrest silence if he testified, thus preventing him from taking the stand in his own defense?
Before we can address the merits of Appellant's claim, we must first discuss his failure to comply with Pennsylvania Rule of Appellate Procedure 1925(b). Rule 1925(b) requires an appellant to timely file a concise statement of matters complained of on appeal when ordered to do so by a trial court. Pa.R.A.P. 1925(b). Our Supreme Court has recently held that Rule 1925(b) is a bright-line rule.
Our jurisprudence is clear and well-settled, and firmly establishes that: Rule 1925(b) sets out a simple bright-line rule, which obligates an appellant to file and serve a Rule 1925(b) statement, when so ordered; any issues not raised in a Rule 1925(b) statement will be deemed waived; the courts lack the authority to countenance deviations from the Rule's terms; the Rule's provisions are not subject to ad hoc exceptions or selective enforcement; appellants and their counsel are responsible for complying with the Rule's requirements; Rule 1925 violations may be raised by the appellate court sua sponte, and the Rule applies notwithstanding an appellee's request not to enforce it; and, if Rule 1925 is not clear as to what is required of an appellant, on-the-record actions taken by the appellant aimed at compliance may satisfy the Rule. We yet again repeat the principle first stated in [Commonwealth v.] Lord, [719 A.2d 306 (Pa. 1998)] that must be applied here: "[I]n order to preserve their claims for appellate review, [a]ppellants must comply whenever the trial court orders them to file a Statement of Matters Complained of on Appeal pursuant to Pa.R.A.P. 1925.
Any issues not raised in a Pa.R.A.P. 1925(b) statement will be deemed waived." [Id.] at 309.
Commonwealth v. Hill, 16 A.3d 484, 494 (Pa. 2011) (footnote omitted).
However, this Court has held that an untimely filing of a Rule 1925(b) statement is the equivalent of a failure to file said statement. Commonwealth v. Thompson, 39 A.3d 335, 340 (Pa. Super. 2012), citing Commonwealth v. Burton, 973 A.2d 428, 433 (Pa. Super. 2009) (en banc). Both are per se ineffective assistance of counsel, which in criminal cases would ordinarily require a remand for the filing of a Rule 1925(b) statement pursuant to Pa.R.A.P. 1925(c)(3). Id. However, this Court held "[w]hen counsel has filed an untimely Rule 1925(b) statement and the trial court has addressed those issues we need not remand and may address the merits of the issues presented." Id.
In this case, the trial court ordered Appellant to file a Rule 1925(b) statement on November 16, 2010. The statement was due 21 days from the date of this filing, on December 7, 2010. On December 6, 2010, Appellant requested an extension of time to file a concise statement in accordance with Rule 1925(b). On December 8, 2010, the trial court granted Appellant an extension until December 27, 2010. Appellant's Rule 1925(b) statement was not filed until December 28, 2010. However, on July 20, 2011, the trial court issued its Rule 1925(a) opinion, accepting Appellant's untimely Rule 1925(b) statement, and addressing the issue Appellant now raises before this Court. Therefore, pursuant to this Court's holding in Thompson, we may address the merits of Appellant's claim.
Appellant avers that the trial court erred in ruling that the Commonwealth could cross-examine him using evidence of his pre-arrest silence if he were to testify. Appellant's Brief at 8. Our standard of review regarding evidentiary issues is well settled. "The admissibility of evidence is at the discretion of the trial court and only a showing of an abuse of that discretion, and resulting prejudice, constitutes reversible error."
Commonwealth v. Sanchez, 36 A.3d 24, 48 (Pa. 2011) (citations omitted). "An abuse of discretion is not merely an error of judgment, but is rather the overriding or misapplication of the law, or the exercise of judgment that is manifestly unreasonable, or the result of bias, prejudice, ill- will or partiality, as shown by the evidence of record." Commonwealth v. Hanford, 937 A.2d 1094, 1098 (Pa. Super. 2007) (citation omitted), appeal denied, 956 A.2d 432 (Pa. 2008). Furthermore, "if in reaching a conclusion the trial court over-rides or misapplies the law, discretion is then abused and it is the duty of the appellate court to correct the error." Commonwealth v. Weakley, 972 A.2d 1182, 1188 (Pa. Super. 2009) (citation omitted), appeal denied, 986 A.2d 150 (Pa. 2009).
We begin by noting "[b]oth the Fifth Amendment of the United States Constitution and Article I, Section 9 of the Pennsylvania Constitution protect an individual's right not to be compelled to be a witness against himself."
Commonwealth v. Lettau, 986 A.2d 114, 117 (Pa. 2009) (citation omitted). The right to remain silent is grounded in the United States Supreme Court's decision in Miranda v. Arizona, 384 U.S. 436 (1966). The Fifth Amendment also protects a defendant's decision to not testify at trial from being commented on by the prosecution to the jury.*fn2 Griffin v. California, 380 U.S. 609, 612 (1965).
However, the Supreme Court has recognized that it does not violate the Fifth and Fourteenth Amendments when the prosecution uses a defendant's pre-arrest silence if he testifies in his own defense. Jenkins v. Anderson, 447 U.S. 231, 238 (1980). Likewise, in Commonwealth v. Bolus, 680 A.2d 839 (Pa. 1996), our Supreme Court found the reasoning in Jenkins persuasive.
We ... hold that when a criminal defendant waives his right to remain silent and testifies at his own trial, neither the United States nor the Pennsylvania Constitution prohibit a prosecutor from impeaching a defendant's credibility by referring to his pre-arrest silence.
Id. at 844. It would therefore appear, at least from Bolus and Jenkins, that there is no constitutional limit on the Commonwealth's decision of impeaching a criminal defendant's own testimony with evidence of pre-arrest silence when he testifies. Furthermore, our Supreme Court has also held "there is no Fifth Amendment proscription precluding the raising of silence in fair response to defense argumentation." Commonwealth v. DiNicola, 866 A.2d 329, 335 (Pa. 2005), citing United States v. Robinson, 485 U.S. 25, 32 (1988).
However, when an appellant does not testify, the Commonwealth's use of his or her pre-arrest silence is more restricted. In Commonwealth v. Molina, 33 A.3d 51 (Pa. Super. 2011) (en banc), the appellant was charged with third-degree ...