OPINION BY WECHT, J.
Steve Bryant ("Appellant") appeals from an April 26, 2011 judgment of sentence. For the reasons set forth herein, we affirm.
The trial court aptly summarized the facts of the case:
Trial Court Opinion ("T.C.O."), 2/22/12, at 2-5.
The trial court also summarized the procedural background:
T.C.O. at 1-2 (italics added). This timely appeal followed.
Appellant raises the following issues:
Brief for Appellant at 4.
Appellant's first issue challenges the trial court's decision to exclude R.M.'s diary with the exception of one page. Our standard of review is well-settled. The admissibility of evidence is within the "sound discretion" of the trial court, "which may only be reversed upon a showing that the court abused its discretion." Commonwealth v. Simmons, 541 Pa. 211, 662 A.2d 621, 633 (1995).
Before reaching the merits of Appellant's claim, we must determine whether that claim was properly preserved. The Commonwealth argues that it was not. Brief of Appellee at 7.
A review of the record reveals that the Commonwealth presented a motion in limine seeking a protective order barring the admission of additional pages of the diary. Notes of Testimony ("N.T."), 7/11/08, at 2-5. Appellant objected to that order. Id. Neither a copy of the Commonwealth's motion, nor the resultant order of court, is included in the certified record. It is unclear whether the motion was made orally or in writing. However, a notation of order appears in the case docket, and Appellant's opposition to the exclusion of the bulk of the diary is adequately recorded in the hearing transcript. Id. We find that this objection is sufficient to preserve the issue on appeal pursuant to Pennsylvania Rule of Evidence 103(a)(1), stating that "[e]rror may not be predicated upon a ruling that admits or excludes evidence unless ... a timely objection, motion to strike or motion in limine appears of record,
Pennsylvania Rule of Evidence 106 states: "When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it." Pa.R.E. 106. The commentary to Pa.R.E. 106 elucidates the rule's underlying rationale:
Comment to Pa.R.E. 106.
"Rule 106 is not an exclusionary rule, but, rather, it merely permits the adverse party to introduce related writings so that the documents originally introduced are not read out of context.... [T]he rule's primary purpose is to correct misleading or impartial [sic] evidence." Commonwealth v. Passmore, 857 A.2d 697, 712 (Pa.Super.2004) (internal citation omitted).
The admissibility of evidence "depends on relevance and probative value." Commonwealth v. Stallworth, 566 Pa. 349, 781 A.2d 110, 117 (2001). Evidence is only considered relevant if it "logically tends to establish a material fact in the case, tends to make a fact at issue more or less probable or supports a reasonable inference or presumption regarding a material fact." Id. at 117-18 (citing Commonwealth v. Crews, 536 Pa. 508, 640 A.2d 395 (1994)).
Appellant contends that the trial court erred when it allowed the jury to view only the one-page diary entry for April 17, 2007, which described the sexual assault. Specifically, Appellant claims that additional entries in the diary should have been submitted to the jury in order to "place[ ] the [one page] into context, and [ensure] a fair and impartial understanding" of that evidence. Brief for Appellant at 11. We find Appellant's claim to be without merit.
The trial court aptly summarized the contents of the diary in question:
T.C.O. at 7-8.
Although Appellant asserts that the entire diary should have been presented to the jury, he fails to make specific reference to any fact or statement in R.M.'s diary that is relevant to this case or would aid the jury, or contradict or otherwise contextualize the April 17, 2007 entry. In his
Appellant's references to the presence of "fantasy" in R.M.'s diary are insufficient and far too vague to establish relevancy in this case. His bald assertion that "[t]he journal's most personal page was admitted into evidence and the other pages are needed for a complete understanding of the circumstances around that entry" is unsupported by any references to other relevant diary entries. Brief for Appellant at 11. Upon reading the entirety of R.M.'s diary, the trial court concluded that these "other entries provided no explanation for the information contained in the April 17, 2007 entry, nor did they place it in context." T.C.O. at 8.
The burden is on Appellant to specify what the relevancy of the rest of the diary would have been and how it would have aided the jury's understanding. Absent such an argument, and given our deferential abuse of discretion standard, we can discern no basis upon which to reject the trial court's informed observations that "the other entries [would] not serve to avoid misleading the jury nor [would] their admission ensure a fair and impartial understanding of the April 17, 2007 entry."
Appellant's second issue challenges the weight and sufficiency of the evidence presented at trial to convict Appellant of EWOC.
Pennsylvania Rule of Criminal Procedure 607 states, in relevant part, that "[a] claim that the verdict was against the weight of the evidence shall be raised with the trial judge in a motion for a new trial" in a written or oral motion before the court prior to sentencing, or in a post-sentence motion. Pa.R.Crim.P. 607(a)(1)-(3). Moreover, the comment to the rule clearly establishes that "[t]he purpose of this rule is to make it clear that a challenge to the weight of the evidence must be raised with the trial judge or it will be waived." Pa. R.Crim.P. 607, comment. Failure to challenge the weight of the evidence presented at trial in an oral or written motion prior to sentencing or in a post-sentence motion will result in waiver of the claim. Commonwealth v. Bond, 604 Pa. 1, 985 A.2d 810, 820 (2009).
A careful review of the record has failed to uncover any record action or statement by Appellant or Appellant's counsel prior to sentencing suggesting a challenge to the weight of the evidence. Additionally, Appellant filed no post-sentence
Appellant does, however, adequately raise and present his sufficiency claim. Our standard for evaluating sufficiency of the evidence is "whether the evidence, viewed in the light most favorable to the Commonwealth [as verdict winner], is sufficient to enable a reasonable jury to find every element of the crime beyond a reasonable doubt." Commonwealth v. Watkins, 577 Pa. 194, 843 A.2d 1203, 1211 (2003) (citing Commonwealth v. Crews, 436 Pa. 346, 260 A.2d 771, 771-72 (1970)). "[T]he entire trial record must be evaluated and all evidence actually received must be considered, whether or not the trial court's rulings thereon were correct." Commonwealth v. Harper, 485 Pa. 572, 403 A.2d 536, 538-39 (1979). Moreover, "[t]he Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence." Id. at 538. "Finally, the trier of fact, while passing upon the credibility of witnesses and the weight to be afforded the evidence produced, is free to believe all, part or none of the evidence." Id. at 539.
In order to convict someone of EWOC, the Commonwealth must prove beyond a reasonable doubt that "[a] parent, guardian or other person supervising the welfare of a child under 18 years of age ... knowingly endanger[ed] the welfare of the child by violating a duty of care, protection or support." 18 Pa.C.S. § 4304(a). The statute also provides that "the term `person supervising the welfare of a child' means a person other than a parent or guardian that provides care, education, training or control of a child." 18 Pa.C.S. § 4304(a)(3). The Pennsylvania courts have established a three-part test that must be satisfied to prove EWOC:
Commonwealth v. Pahel, 456 Pa.Super. 159, 689 A.2d 963, 964 (1997) (quoting Commonwealth v. Cardwell, 515 A.2d 311, 315 (Pa.Super.1986)).
Appellant contends that he "was not a parent, guardian or other person supervising the welfare of the child, and therefore did not knowingly violate a duty of care, protection or support." Brief for Appellant at 12. Appellant also claims that he was "not in the role of caretaker and had no duty to protect the child." Id. at 13. Specifically, Appellant references the fact that he did not permanently reside at the home as evidence that he was not a "person supervising the welfare of the child." Id. We find Appellant's assertions to be without merit.
On multiple occasions, we have extended a duty of care to non-relatives who exercise some supervisory role over children. See Commonwealth v. Trippett, 932 A.2d 188
Id. at 1107.
In Trippett, this Court found that there was sufficient evidence to convict an unrelated person of EWOC where that person lived in the same house as the child, provided temporary care to the child, and was the only supervising adult present at the time he committed sexual assault against the child. Trippett, 932 A.2d at 192, 194-95. Our opinion in Trippett does not in any way indicate the appellant was related to the victim. Id. at 192. The appellant simply resided in the house with the victim and her paternal grandmother. Id. Moreover, in Vining, we found that there was sufficient evidence to convict a person of EWOC where that person did not live with the child, but provided care for the child in the temporary role of a babysitter. Vining, 744 A.2d at 313, 315-16.
Appellant argues that he did not owe a duty of care. In support, Appellant cites Commonwealth v. Halye, 719 A.2d 763 (Pa.Super.1998). However, Halye is distinguishable. There, we found that there was insufficient evidence to support a conviction for EWOC where the offender was the third cousin of the victim's mother, sexually assaulted his victim while there were other adults present in the house, was a one-time visitor to the residence where the assault occurred, and never acted as a supervisor or guardian of the child. Id. at 764-65.
Regardless of the permanence of Appellant's residency at D.B.'s home, the record reveals that Appellant, a thirty-four-year-old man at the time, and R.M., a thirteen-year-old girl at the time, were frequently present in the residence together alone. N.T., 2/9/11, at 53-54, 111. In fact, the record reflects that Appellant was the sole "adult" present in the home during all of the sexual assaults. N.T., 2/9/11, at 60, 104, 189-90. See Trippett, 932 A.2d at 192, 195. This differentiates the instant case significantly from Halye, where the offender was a one-time visitor to the home and other adults were present.
Moreover, Appellant's connection with the family caring for R.M. is much closer than the defendant's connection in Halye. R.M. testified at trial that she considered Appellant to be a family member. N.T., 2/9/11, at 89. Appellant knew R.M. since R.M. was five years old. N.T., 2/9/11, at 176. Appellant's testimony reveals that he was at the home "four, maybe five different days out of the week" to visit with his mother (D.B.), and to eat with the family. N.T., 2/9/11, at 188. Appellant testified that he occasionally picked R.M. up from
Based on the record, there was sufficient evidence for the jury to find that Appellant owed a duty of care to R.M. and violated that duty when he sexually abused her.
Judgment of Sentence affirmed. Jurisdiction relinquished.
