Opinion
J-S70008-17 No. 453 MDA 2017
11-28-2017
COMMONWEALTH OF PENNSYLVANIA Appellee v. AARON JOSHUA BOHN Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence February 13, 2017
In the Court of Common Pleas of Mifflin County
Criminal Division at No(s): CP-44-CR-0000719-2015 BEFORE: GANTMAN, P.J., SHOGAN, J., and OTT, J. MEMORANDUM BY GANTMAN, P.J.:
Appellant, Aaron Joshua Bohn, appeals from the judgment of sentence entered in the Mifflin County Court of Common Pleas, following his jury trial conviction for endangering the welfare of a child ("EWOC"). We affirm.
18 Pa.C.S.A. § 4304(a)(1).
In its opinion filed February 6, 2017, the trial court correctly set forth the relevant facts of this case as follows:
On November 23, 2015, [Appellant] was charged with knowingly endangering the welfare of a child by violating a duty of care, protection, or support. Specifically, it was alleged that [Appellant] did permit his daughter [("Child")], age eleven, to be in close proximity to dangerous and venomous snakes that were housed in containers which had either unsecured lids or no lids at all and...[C]hild's bedroom was directly beside the room which held the snakes, in violation of Section 4304(a)(1) of the
PA Crimes Code. These venomous snakes were owned by [Appellant's] brother and co-[d]efendant...who also lived at the residence. [Appellant] was found guilty of [EWOC] on November 14, 2016. [Appellant] subsequently filed a Motion for Post-Trial Relief, Motion for Acquittal, and/or Motion for New Trial.(Opinion in Support of Order Denying Post-Trial Motion, filed February 6, 2017, at 1).
Appellant, Child, Appellant's brother, and Appellant's mother lived together in Appellant's mother's home. The Commonwealth charged Appellant, Appellant's brother, and Appellant's mother with crimes related to exposure of Child to snakes in the home.
The court held a hearing on Appellant's post-trial motion on December 16, 2016, and denied relief on February 6, 2017. The court sentenced Appellant on February 13, 2017, to fifteen (15) to thirty (30) months' imprisonment. Appellant timely filed a notice of appeal on March 10, 2017. On March 30, 2017, the court ordered Appellant to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), which Appellant timely filed on April 11, 2017.
Appellant raises four issues for our review:
DID THE TRIAL COURT ERR IN RULING THE COMMONWEALTH HAD COMPLIED WITH APPELLANT'S REQUEST FOR DISCOVERY WHEN IT FAILED TO PROVIDE APPELLANT WITH SIGNIFICANT RELEVANT CYS DOCUMENTS—IN PARTICULAR DOCUMENTATION OF 2012 AND 2015 CYS HOME VISITS AND A LETTER FROM CYS RELATIVE TO THE AUGUST 2015 HOME VISIT—DESPITE HIS FORMAL REQUEST?
SHOULD THE TRIAL COURT HAVE GRANTED APPELLANT A
NEW TRIAL BECAUSE THE COMMONWEALTH COMMITTED A BRADY VIOLATION RELATIVE TO THE CYS MATERIALS DESCRIBED ABOVE WHICH WERE NOT PROVIDED TO APPELLANT DESPITE HIS REQUEST FOR SAME.(Appellant's Brief at 1-3) (internal footnote omitted).
SHOULD THE TRIAL COURT HAVE ORDERED A CONTINUANCE SO THAT THE COMMONWEALTH COULD FULLY EXPLORE CYS RECORDS TO SEE WHETHER IT HAD COMPLIED WITH APPELLANT'S DISCOVERY REQUEST AND PROVIDE [APPELLANT] WITH THE OPPORTUNITY TO REVIEW THOSE MATERIALS IN ORDER TO PROPERLY MOUNT A DEFENSE?
WAS THERE INSUFFICIENT EVIDENCE TO CONVICT APPELLANT OF ENDANGERING THE WELFARE OF A CHILD SINCE THERE WAS NO EVIDENCE THAT THE NON-NATIVE SNAKES WERE ACTUALLY THE VENOMOUS SPECIES ALLEGED, NOR THAT HE KNOWINGLY ENDANGERED HIS CHILD; VIOLATED ANY DUTY OF CARE, PROTECTION OR SUPPORT; OR OTHERWISE HAD THE REQUISITE MENS REA TO COMMIT THIS CRIME.
Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).
Appellant raises six issues in his statement of questions presented. Nevertheless, issues two and three are identical to issue one, so we do not reproduce the duplicative issues here. For purposes of disposition, we have also reordered Appellant's issues. Further, Appellant's argument section contains only two subsections, in violation of Pa.R.A.P. 2119(a) (stating argument shall be divided into as many parts as there are questions to be argued). We will overlook this defect.
After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the Honorable Aaron L. Gingrich, we conclude Appellant's issues merit no relief. The trial court opinions comprehensively discuss and properly dispose of the questions presented. ( See Opinion in Support of Order Denying Post-Trial Motion at 1-6; Trial Court Opinion, filed May 1, 2017, at 1-4) (finding: (issues 1-2) Appellant's Brady claim is premised upon his discovery of letter from Children and Youth Services ("CYS") dated August 4, 2015, indicating CYS had previously investigated Appellant's brother as to welfare of another child and ultimately closed that case; Appellant contends this letter contains potentially exculpatory evidence relating to his case and Commonwealth's failure to discover existence of and disclose letter constitutes Brady violation; although CYS maintained on morning of trial that it had disclosed all relevant files, Appellant produced at post-trial motion hearing copy of CYS' letter; significantly, however, CYS is not law enforcement agency or actively involved in prosecution of Appellant; consequently, Commonwealth did not have duty to discover and disclose evidence in CYS' possession; even if Commonwealth had duty to discover and disclose this letter, it was not material to Appellant's guilt or innocence, where letter refers to different child and involves Appellant's brother—not Appellant; court does not know what conditions prompted CYS to close case involving Appellant's brother; materiality of letter is speculative at best and insufficient to satisfy Brady claim; additionally, Commonwealth has routine policy of expunging CYS records which are deemed invalid within one year and 120 days of referral; Commonwealth did not violate Appellant's due process rights by unknowingly permitting CYS to expunge records related to Appellant's brother as part of its routine procedures; further, letter at issue was in Appellant's or his brother's possession prior to trial; Appellant's knowledge of letter and ability to produce copy of it shortly after his trial shows Appellant could have discovered letter sooner with exercise of reasonable diligence; (issue 3) on morning of Appellant's trial, Appellant filed motion to compel discovery of all CYS' records and home visits involving Child, Appellant, Appellant's mother or Appellant's brother; court addressed issue with CYS' agent, who informed court all available records had been produced; thus, it was appropriate for matter to proceed to trial at that juncture and for court to deny Appellant's request for continuance; (issue 4) Appellant, Child, Appellant's brother, and Appellant's mother lived together at Appellant's mother's house; Appellant's brother was avid snake enthusiast and housed multiple venomous snakes, both legal and illegal in Pennsylvania; testimony from Fish and Boat Commission Officer indicated lids of snake aquariums were not secured properly and snakes could potentially escape their enclosures; additional testimony from Appellant and others confirmed that, on at least one occasion, one venomous snake escaped confinement during feeding, and Child was immediately removed from home; nevertheless, this incident highlights potential danger these snakes pose; Appellant further testified his daughter was instructed not to ever interact with snakes or enter room where they were housed, due to potential danger; Commonwealth presented evidence to prove Appellant was aware of his duty to protect Child and knew of potential danger posed by venomous snakes, sufficient to sustain Appellant's conviction for EWOC). Accordingly, we affirm on the basis of the trial court's opinions.
Significantly, the letter does not mention snakes or otherwise indicate the basis for the case involving Appellant's brother. The letter merely states, "It is the decision of this agency to close your case as of 8/4/15" and directs Appellant's brother with how to proceed if he disagrees with the agency's decision. The trial court also states the case number associated with CYS' letter referenced a different residence than Appellant's residence. We are unable to verify that assertion on the record before us.
In his brief, Appellant argues the Commonwealth "stipulated to" and made the "startling admission" that CYS visited the home in 2015, and approved Appellant's brother's possession of the snakes at that time. (Appellant's Brief at 45). Appellant completely misstates the record. At the post-trial motion hearing, the prosecutor stated: "[W]hile I'm not conceding it, I'm going to give you the argument...that [Appellant's brother] was cleared...by CYS." (N.T. Post-Trial Motion Hearing, 12/16/16, at 15) (emphasis added). Read in context, the prosecutor was simply indicating he would not dispute Appellant's position that CYS cleared Appellant's brother for purposes of argument on the post-trial motion, where the Commonwealth insisted Appellant's Brady claim still failed on other grounds. Additionally, to the extent Appellant complains the Commonwealth failed to disclose a 2012 letter indicating CYS closed a case against Appellant's brother involving the snakes, Appellant did not produce any letter from 2012 to substantiate that claim.
Appellant testified at trial that CYS' letter was "somewhere in the house" but Appellant's brother could not locate it.
Appellant's claim that the Commonwealth failed to establish the "snake types and toxicity" is waived for failure to specify that contention in his court-ordered Rule 1925(b) statement. See Commonwealth v. Hansley , 24 A.3d 410 (Pa.Super. 2011), appeal denied, 613 Pa. 642, 32 A.3d 1275 (2011) (reiterating general rule that issues not raised in Rule 1925(b) statement are waived on appeal; concise statement must be specific enough for trial court to identify and address issues appellant wants to raise on appeal). Moreover, the Commonwealth presented testimony from multiple witnesses about the types of snakes Appellant's brother kept in the home, as well as testimony from the Chief Biologist for the Natural Diversity Section of the Pennsylvania Fish and Boat Commission discussing the toxicity of those types of snakes. Thus, even if Appellant had preserved this particular allegation, it would merit no relief.
The correct full citation for Commonwealth v. Schley ( see Trial Court Opinion at 2), is 136 A.3d 511 (Pa.Super. 2016). --------
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 11/28/2017
Image materials not available for display.