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[U] Commonwealth v. Less

Superior Court of Pennsylvania

March 4, 2014

COMMONWEALTH OF PENNSYLVANIA Appellee
v.
HEATHER LYNN HESS Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Judgment of Sentence of March 19, 2013 In the Court of Common Pleas of Delaware County Criminal Division at No(s): CP-23-CR-0000551-2012

BEFORE: GANTMAN, P.J., OLSON AND PLATT, [*] JJ.

MEMORANDUM

OLSON, J.

Appellant, Heather Lynn Hess, appeals from the judgment of sentence entered on March 19, 2013. We affirm.

The trial court has ably explained the underlying facts of this case:
On December 11, 2011, Upper Chichester Township Police officers responded to a report that a [2-year-old] boy, David Miller, Jr., who was in the care of [Appellant], a babysitter, was in respiratory arrest. An ambulance transported the child to Crozer Chester Medical Center, where he was treated for a serious head injury from trauma and numerous bruises on his back. He was then taken to Children's Hospital in Philadelphia, where he was pronounced dead. The Assistant Medical Examiner filed a report listing the cause of death as "blunt impact neurotrauma" and the manner of death as "homicide."
[Appellant] was charged with various degrees of murder, manslaughter, assault, and child endangerment. [Appellant proceeded to a five-day jury trial and, during the jury charge, the trial court] instructed the jury on the principle known as ["falsus in uno, falsus in omnibus." The jury instruction was as follows]:
A very important principle in judging credibility is as follows. It has a fancy Latin name, I won't burden you with that, but if you conclude that one of the witnesses testified falsely and did so intentionally about any fact which is necessary to your decision in this case, then for that reason alone you may disregard the entire testimony of that witness. However, you're not going to [be] required to disregard everything that the witness said for this reason. It's entirely possible that you would find that the witness was telling the truth about something else. If that's the case and you find that, then you're entitled to believe what you believe to be true and to disregard or disbelieve the material or the testimony that you believe to be false.

N.T. Trial, 1/11/13, at 68-69.

At the completion of the charge, defense counsel made an objection, [and] argu[ed] that the use of the [term] "very important[]" [in the "falsus in uno, falsus in omnibus" charge] "makes [the legal principle] look like it's more important than others." [Id. at 90. The trial court] then fine-tuned the charge, instructing the jury that "the fact that I may have mentioned that one thing is important rather than another, if you've got that impression you would be wrong. Everything I said was equally important. All right, good luck." [Id. at 92]. [Appellant] did not object or take [] exception to the revised charge.
After deliberating, [the] jury found [Appellant] guilty of murder in the third degree, [involuntary manslaughter, ] aggravated assault[, ] and endangering the welfare of [a child.[1] On March 19, 2013, [the trial c]ourt sentenced [Appellant] to [an aggregate term of] 120 months to 240 months [in prison] for [the convictions].

Trial Court Opinion, 5/31/13, at 1-2.

Appellant filed a timely notice of appeal and now raises the following claim:

Whether the [trial] court abused its discretion when it instructed the jurors that the concept of "falsus in unum, falsus in omnibus" was "a very important [principle] in judging credibility" where, by doing so, it elevated its importance in relation to the other sections of the charge and unfairly prejudiced the defense?

Appellant's Brief at 5.

Appellant's claim of error is waived.

In Dilliplaine v. Lehigh Valley Trust Co., our Supreme Court held that a party must make a timely, specific objection to alleged trial court errors, so as to "ensure that the trial judge has a chance to correct" any such errors. 322 A.2d 114, 116 (Pa. 1974); see also Commonwealth v. Clair, 326 A.2d 272 (Pa. 1974). To be sure, in order to "advance[] the orderly and efficient use of our judicial resources, " the trial court must be given the opportunity to "correct alleged errors at trial." Dilliplaine, 322 A.2d at 116. As our Supreme Court has explained, this requirement was borne from a host of factors:

First, appellate courts will not be required to expend time and energy reviewing points on which no trial ruling has been made. Second, the trial court may promptly correct the asserted error. With the issue properly presented, the trial court is more likely to reach a satisfactory result, thus obviating the need for appellate review on this issue. Or if a new trial is necessary, it may be granted by the trial court without subjecting both the litigants and the courts to the expense and delay inherent in appellate review. Third, appellate courts will be free to more expeditiously dispose of the issues properly preserved for appeal. Finally, the exception requirement will remove the advantage formerly enjoyed by the unprepared trial lawyer who looked to the appellate court to compensate for his trial omissions.

Id. at 116-117 (internal footnotes omitted).

Pennsylvania Rule of Criminal Procedure 647 embodies Dilliplaine's requirement of a timely, specific objection and applies the principle directly to the trial court's jury charge. In relevant part, Rule 647 provides:

(B) No portions of the [jury] charge nor omissions from the charge may be assigned as error, unless specific objections are made thereto before the jury retires to deliberate. All such objections shall be made beyond the hearing of the jury.
(C) After the jury has retired to consider its verdict, additional or correctional instructions may be given by the trial judge in the presence of all parties . . .

Pa.R.Crim.P. 647.

In accordance with this plain language, our Supreme Court has held that a party must levy "a specific objection to the [jury] charge or an exception to the trial court's ruling on a proposed point [for charge] to preserve an issue involving a jury instruction." Commonwealth v. Pressley, 887 A.2d 220, 224 (Pa. 2005). Further, regarding additional or supplemental jury instructions, we have held that "[i]n order to preserve a challenge to [] a supplemental charge, [] counsel must make a specific objection before the jury returns to its deliberations." Commonwealth v. Betz, 664 A.2d 600, 619 (Pa.Super. 1995) (emphasis in original) (some internal emphasis omitted). Otherwise, the claim of error is waived. Id.

In the case at bar, Appellant did not object to the trial court's revised "falsus in uno, falsus in omnibus" charge. N.T. Trial, 1/11/13, at 90-92. Therefore, Appellant has waived any claim that the trial court erred in the phrasing of its particular "falsus in uno, falsus in omnibus" charge.

Judgment of sentence affirmed.

Judgment Entered.


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