J-S80017-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

APRIL DEMANCHE

Appellee No. 5 MDA 2016

Appeal from the PCRA Order Dated November 30, 2015

In the Court of Common Pleas of York County

Criminal Division at No: CP-67-CR-0005999-2014

BEFORE: LAZARUS, STABILE, and RANSOM, JJ.

MEMORANDUM BY STABILE, J.: FILED DECEMBER 30, 2016

The Commonwealth appeals from the November 30, 2015 order 

entered in the Court of Common Pleas of York County (“PCRA court”), which 

permitted Appellee April Demanche to withdraw her plea of nolo contendere

and proceed to trial based on a recantation claim pursuant to the Post 

Conviction Relief Act (“PCRA”), 42 Pa.C.S.A §§ 9541-46. Upon careful 

review, we affirm. 

The facts and procedural history underlying this case are undisputed. 

Briefly, on April 23, 2015, Appellee pled no contest to two counts of 

endangering the welfare of children under 18 Pa.C.S.A. § 4304(a)(1) and 

was sentenced to consecutive five-year terms of probation. On August 21, 

2015, Appellee filed the instant PCRA petition, alleging that, between July 5, 

2015, and July 15, 2015, she discovered that two minor victims had 
J-S80017-16

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recanted their allegations of abuse against Appellee.1 The PCRA court 

conducted a hearing, after which it granted Appellee PCRA relief based on 

after-discovered recantation evidence on November 30, 2015.2 The 

Commonwealth timely appealed to this Court. Following the 

Commonwealth’s filing of a Pa.R.A.P. 1925(b) statement of errors 

complained of on appeal, the trial court issued a Pa.R.A.P. 1925(a) opinion.

On appeal,3the Commonwealth raises three issues for our review:

____________________________________________

1 Generally, a defendant who pleads guilty waives all defects and defenses 

except those concerning the jurisdiction of the court, the legality of the 

sentence, and the validity of the guilty plea. See Commonwealth v. 

Pantalion, 957 A.2d 1267, 1271 (Pa. Super. 2008). A nolo contendere plea 

is treated the same as a guilty plea. Commonwealth v. Leidig, 850 A.2d 

743, 745 (Pa. Super. 2004), aff’d, 956 A.2d 399 (Pa. 2008). 

2

In Commonwealth v. Starr, 301 A.2d 592 (Pa. 1973), our Supreme 

Court determined that a court should allow the withdrawal of a guilty plea 

after sentencing to correct a manifest injustice to the defendant. 

Subsequently, the Court determined that any after-discovered evidence 

which would justify a new trial would also satisfy the requirements of Starr. 

Commonwealth v. Peoples, 319 A.2d 679, 681 (Pa. 1974). Specifically, 

the Court stated that “any after-discovered evidence which would justify a 

new trial would also entitle a defendant to withdraw his guilty plea.” Id.

3 We have explained:

This Court examines PCRA appeals in the light most favorable to 

the prevailing party at the PCRA level. Our review is limited to 

the findings of the PCRA court and the evidence of record[.] 

Additionally, [w]e grant great deference to the factual findings of 

the PCRA court and will not disturb those findings unless they 

have no support in the record. In this respect, we will not 

disturb a PCRA court’s ruling if it is supported by evidence of 

record and is free of legal error. However, we afford no 

deference to its legal conclusions. [W]here the petitioner raises 

questions of law, our standard of review is de novo and our 

scope of review is plenary.

(Footnote Continued Next Page)
J-S80017-16

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I. Whether [Appellee] is ineligible for relief under the PCRA 

under Section 42 Pa.C.S.A. § 9543(a)(2)(iv) as the purported 

victim recantations could have been discovered by going to trial 

and examining the victims at trial?[4]

II. Whether the lower court erred in granting [Appellee’s] PCRA 

petition to withdraw a no-contest Alford plea,[5] based upon 

purported recantations of two of four juvenile victims?

III. Whether [the] PCRA court erred in permitting [Appellee] to 

withdraw her no-contest plea where the plea consisted of two 

counts involving a consolidated claim of four victims where only 

two victims recanted?

Commonwealth’s Brief at 4 (unnecessary capitalization omitted).

After careful review of the record and the relevant case law, we 

conclude that the PCRA court accurately and thoroughly addressed the 

merits of the Commonwealth’s claims. See PCRA Court Rule 1925(a) 

Opinion, 4/5/16, at 7-19. Accordingly, we affirm the PCRA court’s November 

(Footnote Continued) _______________________

Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super .2014) (citations 

and quotation marks omitted), appeal denied, 101 A.3d 785 (Pa. 2014).

4 To obtain relief based upon newly-discovered evidence under the PCRA, a 

petitioner must establish that: (1) the evidence has been discovered after 

trial and it could not have been obtained at or prior to trial through 

reasonable diligence; (2) the evidence is not cumulative; (3) it is not being 

used solely to impeach credibility; and (4) it would likely compel a different 

verdict. Commonwealth. v. D'Amato, 856 A.2d 806, 823 (Pa. 2004) 

(citation and quotation marks omitted). In fact, the PCRA provides relief 

where a petitioner can prove “[t]he unavailability at the time of trial of 

exculpatory evidence that has subsequently become available and would

have changed the outcome of the trial if it had been introduced.” 42 

Pa.C.S.A. § 9543(a)(2)(vi).

5 North Carolina v. Alford, 400 U.S. 25 (1970). An Alford plea is a nolo 

contendere plea in which the defendant does not admit guilt but waives his 

trial and voluntarily, knowingly, and understandingly consents to the 

imposition of punishment by the trial court. Alford, 400 U.S. at 37. 
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30, 2015 order. We further direct that a copy of the PCRA court’s April 5, 

2016 Rule 1925(a) opinion be attached to any future filings in this case.

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/30/2016
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October 17, 2014. On February 12, 20 J 5, the case was listed for trial in the March of 2015 

and Corruption of Minors. Thereafter, the Appellee completed a Waiver of Arraignment on 

of Age, four counts of Unlawful Restraint, four counts of Endangering Welfare of Children, 

with Criminal Solicitation to Involuntary Deviate Sexual Intercourse-Less Than 13 Years 

By the filing of an [nformation on September 29, 2014, the Appellee was charged 

I. Procedural History 

Order. 

relevant case Jaw, the Court now issues this Opinion in support of our November 30, 2015 

entered in this case on November 30, 2015. Having considered all evidence, testimony, and 

Commonwealth of Pennsylvania appeals to the Superior Court of Pennsylvania the Order 

The Court received a Notice of Appeal, docketed on December 30, 2015, that the 

w 

...... 

OPINION IN SUPPORT OF ORDER PURSUANT TO RULE l925(a) OF THE 

RULES OF APPELLATE PROCEDURE 

Anthony J. Tambourine, Esquire 

Counsel for the Appel lee 

James E. Zarnkotowicz, Esquire 

Counsel for the Appellant 

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APRIL DEMANCHE, 

Def end ant/ Appellee 

COUNSEL OF RECORD: 

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v. NO. CP-67-CR-0005999-2014 

COMMONWEALTH 

Appellant 

IN THE COURT OF COMMON PLEAS OF YORK COUNTY, PENNSYLVANIA 

CRIMINAL DIVISION 

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Circulated 11/30/2016 04:12 PM
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counts of Endangering the Welfare of Children involved consolidated claims involving four 

victims at trial. Third, and finally, the Appellant avers that the Appellee's pleas to the two 

granting relief because the recantations could have been discovered by examination of the 

the recantations of the two eldest child victims. Second, the Appellant believes we erred in 

erred in granting the Appellant's petition to withdraw her no-contest Alford plea following 

The Appellant appeals for the following reasons. First, the Appellant avers that we 

to Pennsylvania Rules of Appellate Procedure l 925(b). 

Appellant complied and filed their Statement of Matters Complained of on Appeal Pursuant 

I 92S(b ), of the Pennsylvania Rules of Appellate Procedure. On January 11, 2016, the 

2016, we ordered the Appellant to file a statement of matters complained of pursuant to Ruic 

The Commonwealth filed a Notice of Appeal on December 30, 2015. On January 4, 

new trial based upon the credible renunciations of the two eldest victims' testimony. 

reserved our decision, we issued an Order, on November 30, 2015, granting the Appellee a 

Appellee's petition for a new trial based upon the recantations of key witnesses. Having 

On October 27, 2015, a Post-Conviction Relief Act Hearing was held to consider 

to close the case after five years of compliance. 

sentenced to consecutive terms of five years of probation on each count with the opportunity 

Endangering Welfare of Children under 18 Pa.C.S.A. § 4304(a)(l ). The Appellee was then 

her guilt, the Appellee entered an Alford plea on May 8, 2015 to two added counts of 

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in 

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trial term. Believing the Commonwealth possessed sufficient evidence to convince a jury of 

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S~ testified that his siblings told him that the Appellee tied them up during the course 

testified that he was never harmed by touching a heater in a house. Id. S4lillllafurther 

testified that nothing ever happened to him involving his father's drop cloths. Id., at 22. And 

while S~said that he never told the siblings anything about being tied up, on redirect, 

of calling the children's mother and that spanking was not utilized. Id., at 21. S4•9 

On cross-examination, S~tated that punishment from the Appellee consisted 

had only recently revealed the truth and that the Appellee never hurt him or his siblings. Id. 

treated B9111111,in throwing a ring at B8tn Florida. Id., at 19. Se···state<l that he 

Children's Advocacy Center (hereinafter: CAC) interviewer. Id., at 17. Specifically, 

S~told this Court that he lied about the Appellee tying him and his siblings up and 

that the Appellee never forced the supposed victim ses face near SJ R's privates. 

J Id., at 17-18. The impetus for S~to lie was that he did not like how the Appcllce had 

family's babysitter. Id., at 16. As to the accusations, S-stated that he had lied to the 

SJ ill testified that the Appellee was his brother B Al's girlfriend and the 

15 . 

Testimony, 10/27/15, at 10.) Without objection, S~as found to be competent. Id., at 

II. Facts 

At the October 27, 201 S PCRA Hearing, the eldest child accuser, se-.r 

took the stand to recant his accusations. Se) I was born January 24, 2004. (Notes of 

victims and only two of the four victims recanted. 

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SJ £1 told him to and that he had threatened Sp~ith violence ifhe did not go along 

SPl!llllistated that the Appellee played games such as "cops and robbers" with the children 

and would tie them up with baby wipes. Id. S~went on to say that this behavior was 

playful and not mean. Id., at 42-43. S~as clear that the Appellee never hurt the 

knife to the children's throats and about the Appellee tying them up. Id., at 42. Rather, 

untrue. Id., at 40-41. He then went on to testify that he lied about the Appellee holding a 

competent to testify. Id., at 40. 

SJ 8 told this Court that some of what he had stated in his CAC interview was 

being shoved into Sc I( 's privates together. Id., at 33. 

Following Se -·s recantation, S~ took the stand. se was born 

September 22, 2005. ld., at 35. No objection having been made, S~was found to be 

stated his belief that he and his brother Sp 

unrelated accusations of abuse. Id., at 30-31. Finally, during re-cross examination, SJ§ 

confessed to his father that he had lied about the Appellee around the time that he lied about 

story told to his parents, the police, or the CAC interviewer was true. Id., at 30. st911111l 

accusations. Id., at 26. Under questioning by the Court, S~said that he never told any 

of his siblings besides Sp ... o lie. Id., at 28. S~lso stated that not one bit of the 

Se-admitted that he told his younger brother Sp ... to go along with the 

of a game. Id., at 24-25. 

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testified that at some point after the Appellee had entered her plea, under questioning from 

Mr .• about the accusations, S~broke down and admitted that the accusations 

on to say that Sc? g has hurt him in the past. id., at 56. 

The next PCRA Hearing witness was R~ who is the father of the 

accusers. Mr. stlllastated that SeS Si Sp~ Sa. and S.made the allegations 

and that sae-and s.e,vould have been three at the time. Id., at 60. Mr. stll9then 

because he did not want to get hurt by S-who threatened him. Id., at 55. He then went 

at 52. 

Sp .. to say something about private areas rather than it being a jointly-crafted story. Id., 

Appellee of holding a knife to the children's throats. ld., at 49. Under questioning by the 

Court, S~disagreed with st4lllllltin that Sp I stated that it was sci I who told 

Appellee did not spank anyone, nor did she put anyone's face near anyone else's privates. 

children with time-outs and through calling their parents. Id., at 46. Sp. ] said that the 

tied to anything. Id., at 45. Like S~ Sp~estified that the Appellee punished the 

aforementioned "cops and robbers" game) he was able to move around and that he was not 

On cross-examination, Sp. stated that when tied up (seemingly during the 

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with the lie. id. Se 

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allegations recounted by Mr. - K-added that Se- has accused ~ of abuse 

made accusations to her were Sdlc ••£•and Sp- Id., at 73. In addition to the false 

The purported victims' mother, Ktllll S ... testified that the only victims who 

prompting of counselors. Id .• at 71. 

~told this Court that the two female victims will not discuss their allegations even at the 

~and the Appellee that occurred in Florida. Id., at 66-67. 

During the course of his testimony, Mr. S~onfirmed Sp9,s accusation that 

accusations of abuse only surfaced some five-to-six months after the incident between 

was tidy, the children were cared for, and the children made no complaints. Id., at 68. The 

against the Appellee because, during the Appellee's time as the family's babysitter, the house 

The putative victims' father testified that he was floored by the initial accusations 

his belief that S-0 I is knowledgeable about sexual behavior. id. 

bad sexual relations with another patient, which turned out to be false. Id. Mr. ~tated 

accused his grandmother of abuse. Id. Further, while hospitalized, Se~claimcd to have 

faculty at S~s school, which were found to be false. Id., at 65. Sdcl£••also falsely 

accused the Appellee, seq l had made allegations of physical abuse at the hands of 

exception of B_. had no contact with the Appellee. Id., at 64 and 66-67. 

Mr. sethen testified that prior to Se-s revelation that he had falsely 

were a lie. Id., at 62-64. From the time of the incident in Florida, the victims' family, with the 

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The Appellee's petition made application for relief via the Post-Conviction Relief Act 

interest of judicial economy, we do so. 

testimony at trial. These two matters are most expeditiously addressed as one and so, in the 

PCRA relief because she could have garnered the eldest victims' recantations by testing their 

Appellee's petition to withdraw her Alford plea and that the Appellee was ineligible for 

The Appellant's first two matters complained of are that we erred in granting the 

A. Recantation of Victims S.S. and S.S. 

III. Matters Complained of on Appeal 

because she was afraid to go to trial. Jd., at 83. 

82. Despite her claim of innocence, the Appellee told this Cou11 that she entered a plea 

serious time in a state correctional facility followed by registration as a sex offender. Id., at 

worried how a jury would view the children's accusations and because she was looking at 

rags. Id., at 81-82. The Appellee testified that she plead nolo contendere because she was 

games with the children. Id., at 81. Moreover, the kids did not play with baby wipes or paint 

The final PCRA witness was the Appellee who stated that she really had not played 

Setlllll's hospital and school-related accusations. Jd., at 74. Finally, Kiii testified that, 

following the conflagration between I9 and the Appellee in Florida, S~"hated" 

the Appellee. Id., at 75. 

Appellee were deemed unfounded and that surveillance video had definitively disproved 

. ·' 

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I We are cognizant that our reliance upon an unreported Superior Court decision does not place us on the 

firmest of footings; however, our review of relevant case law leads us to believe that a PCRA petition to 

withdraw a pica based upon after-discovered evidence is an atypical event. Moreover, Commonwealth also 

cited this case at the PCRA Hearing. (Notes of Testimony, 10/27/15, at 4.) 

8 

rather than as a result of trial, '"[a]ny after-discovered evidence which would justify a new 

See Gajewski, supra, at 2. Though the Appellee's sentence resulted from a plea of guilty 

(vi) The unavailability at the time of trial of exculpatory evidence that 

has subsequently become available and would have changed the outcome of 

the trial if it had been introduced. 

(2) That the conviction or sentence resulted from one or more of the 

following; 

(a) General rulc.-To be eligible for relief under this subchapter, the 

petitioner must plead and prove by a preponderance of the evidence all of the 

following: 

9543(a)(2)(vi), which states, in relevant part: 

Specifically, in the case sub Judice, the Appellee sought relief under 42 Pa.C.S.A. § 

Commonwealth v. Gajewski, 2014 WL I 0979820, 2 (Pa. Super. Ct. 2014) ( quoting 

Commonwealth v. Crawley, 663 A.2d 676, 678 (Pa. 1995)).1 

from one or more of the enumerated errors or defects listed in 42 Pa.C.S.A. § 9543(a)(2)." 

PCRA petitioner to establish by a preponderance of the evidence that his sentence resulted 

the two eldest child victims. "To be eligible for PCRA relief, the burden rests upon the 

(hereinafter: PCRA) and its thrust is based upon the recantation of the accusations made by 
2 As a result of this precept, we believe we can reference cases that follow more common fact patterns that are 

distinguishable from our own by virtue of their having gone to trial. In fact, the ever useful Standard 

Pennsylvania Practice discusses the topic of recantation exclusively through the lens of cases that were resolved 

through trial. 27 Standard Pennsylvania Practice 2d § 135:450 After-discovered evidence-Recantation. 

9 

proffered evidence was discovered after her plea and that it could not have been discovered 

Id. (citing Commonwealth v. Sanabria, 385 A.2d 1292, 1298 (Pa. 1978)). 

(Pa. 1970)). However, "[i]t is up to the trial court to judge the credibility of the recantation." 

Nelson, 398 A.2d 636, 637 (Pa. 1979) ( citing Commonwealth v. Coleman, 264 A.2d 649, 651 

requests for a new trial unless we are satisfied that the recantation is true. Commonwealth v. 

"[r]ecantation testimony is considered extremely unreliable" and that we should deny 

732 A.2d 1167, 1180 (Pa. 1999). In performing our analysis, we bear in mind that 

Commonwealth v. Johnson, 966 A.2d 523, 541 (Pa. 2009) and Commonwealth v. Williams, 

Id. (quoting Commonwealth v. D 'Amato, 856 A.2d 806, 823 (Pa. 2004)); See also 

"[t]o obtain relief based upon newly-discovered evidence under the PCRA, a 

petitioner must establish that: (l) the evidence has been discovered after trial 

and it could not have been obtained at or prior to trial through reasonable 

diligence; (2) the evidence is not cumulative; (3) it is not being used solely to 

impeach credibility; and (4) it would likely compel a different verdict." 

;_ ··: 

Superior Court states that, 

mechanics of dispensing with such a PCRA petition. In Commonwealth v, Gajewski, the 

Believing that the Appellee's petition was properly before us, we turn to the 

v. Peoples, 319 A.2d 679, 681 (Pa. 1974)).2 

. ,• 

trial would also entitle defendant to withdraw his guilty plea."' Id. ( quoting Commonwealth 

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The first bar the Appellee needed to overcome was a showing that the 

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with minor victims who are unable to consent to being interviewed by defense counsel sans 

encountered no evidence that might or should have triggered counsel to try and communicate 

defense counsel could have been expected to probe for a recantation prior to trial. We 

for due diligence of counsel, we fail to see how, with the procedural history of this case, 

victim's family, she was in no position to garner any recantations of the accusations. And as 

was known to the Appellee at the time of her plea. As Appellee had no contact with the 

the witnesses at trial. Rather, the only sensible conclusion is that we must consider that which 

could be overturned by after-discovered evidence as the defendant would have never tested 

require the impossible. If Commonwealth were to be correct in their contention then no plea 

they were considering the plea as a stand-in for the trial. As such, Appellant is seeking to 

evidence that would justify a new trial will justify the withdraw of a guilty plea, we believe 

When the Superior Court in Grajewski, supra, indicates that any after-discovered 

the procession of this case. 

Appellee could have obtained the recantations through trial. We believe this is inapposite to 

evidence of crimes against children. Nonetheless, the Commonwealth opines that the 

accommodate the number of jurors who are disqualified because of their inability to hear 

so heinous that, in similar cases, we must always summon enlarged jury panels to 

Appellee was facing the accusations of four child victims who were accusing her of crimes 

is true that this is because of the Appellee's decision to enter an Alford plea; however, the 

prior to or at the time of trial. None of the accusations in this case have been put to the test. It 

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which is oft-defined as fifty percent plus one. See 42 Pa.C.S.A. § 9543(a)(2){vi). The 

diligence. We remember that the Appellee's burden here was preponderance of the evidence, 

we do not believe it could have been obtained at or prior to trial through reasonable 

The evidence was discovered after the Appellee's Alford plea. As discussed above, 

without the input or participation of the defendant. 

with copies of Children's Advocacy Center interviews, which, by their nature, are produced 

for cross-examination of the victims. Rather, the Appellee and her counsel were provided 

evidence at the time of trial. 649 A.2d 435, 448 (Pa. 1994). Here, there was no opportunity 

because direct and cross-examination covered topics relevant to the after-discovered 

could not have obtained the after-discovered evidence at, or prior to, the conclusion of trial 

In Commonwealth v. Wilson, it was found that the appellant had not shown that he 

plea. 

any of the victims would recant and the victims did not do so prior to the entry of Appellee's 

17 A.2d 873, 887 (Pa. 2011 ). Again, neither counsel, nor the Appellee, had any notion that 

affidavit that, had counsel interviewed her prior to trial, the truth would have been explained. 

discovered evidence claim failed because the witness proffering the evidence admitted in an 

In Commonwealth v. Smith, the Supreme Court of Pennsylvania found that an afterfrom those we encountered in our review of the case law because it did not go to trial. 

defense would have been engaging in a fishing expedition. Essentially, this case is different 

parental permission. Absent some scintilla of evidence that the victims might recant, the 

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crimes and to which Appellee plead. For half of the accusers to recant is a tremendous blow 

Si:4illll formed half of the witnesses to the events that the Commonwealth alleged were 

Yet, those accusations are due no less consideration than those of adults. S• U 3 and 

surmounted the third potential impediment to her being granted relief. 

I Fourth, and finally, the Appellee needed to show that the after-discovered evidence 

I ! would likely compel a different verdict. The initial accusations were brought by children. 

I 

discussed infra. As the evidence was not offered solely to impeach credibility, the Appellee 

accusations form the basis of Commonwealth's third matter complained of, which is 

were in Appellee's care and to impeach the credibility of the younger siblings whose 

recantations would be substantive evidence of what may have occurred when the children 

the recantations were not being used solely to impeach credibility. Here it is clear that the 

The third thing that the Appellee needed to show to succeed in her petition was that 

find them cumulative. 

flew in the face of the evidence offered up to and at the time of Appellee's plea, we did not 

be merely cumulative. As the recantations were first aired at the PCRA Hearing and they 

The second obstacle for the Appellee was that the after-discovered evidence could not 

generally in our granting of the Appellee's petition, we continue on with our analysis. 

point of contention. As the Commonwealth's first matter complained of avers that we erred 

second matter complained of is without merit and so we humbly seek affirmance on this 

Appcllee cleared the first PCRA hurdle. We therefore believe that the Commonwealth's 

............ , 
3 We note that copies ofS6and soas Children's Advocacy Center interviews were not made available to 

the Court. Therefore, we could not make determinations about their credibility. 

13 

Se-told the interviewer that the children were tied up to a radiator, ld., at 9:55:05, and 

siblings were tied up on two separate occasions with his father's paint rags. Id., at 9:52:40. 

Then, in contradiction to his own statement, after the interviewer asks if Appellee had ever 

hit him, semi.answers in the affirmative. Id. Next, S~recounted how he and his 

"[he] got hit by [Appellee]." (Children's Advocacy Center Interview, 7/3/14, at 9:51:20.) 

next to those interviews. 

without stating why we found them more compelling than their CAC interviews. We turn 

possibility that the recantations would compel a different verdict. 

Up to this point, we have referred to S~ and Sitlll's recantations as credible 

different verdict. 92 A.3d 1210, 1219-20 (Pa. Super. Ct. 2014). Both Se8 J and S~ 

I testified that the Appellee never harmed any of the children. Much like the incredible witness 

I in Medina, S ... nd sewere so young at the time of the events in question that it is 

I 

likely a jury would find the recantations overpowering.3 As such, there is a distinct 

I circumstance in Commonwealth v. Medina, wherein the recantation of one witness so 

I I severely undercut that of a witness known to have credibility issues that it led the Superior 

Court to agree with the trial court that there was a strong likelihood of a jury reaching a 

call into question the verity of the stories of the remaining witnesses. This is similar to the 

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to a successful prosecution that is compounded becau;;s~~~d Sp..,s recantati-;;,;~· 

During his CAC interview, Se-stated that an example of a lie would be that, 

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been locked in his room. (CAC Interview, 7/3/14, at 9:54:40.) S, went on to tell the 

CAC interviewer that his mother and father saw red marks o··s face and that they 

thought this was the result of heat. Id., at 10:03:05. Selllllli.,then stated that. 

reddened face was not caused by heat; but, rather, by the Appellee smacking him, which 

a man entered the house based upon his voice. The lie is self-evident. 

t;t.J 

Se J has a younger brother named...., (CAC Interview, 7/22/14, at 

9:45:15.) During the first incident of being tied up,6 is alleged by st411111 to have 

man enter the home. Id. If S~ had seen the man then he would not have stated he knew 

add that the window was closer than he had drawn on a diagram and he was able to see the 

realizing that he was supposed to have been chained to a radiator at the time, then hastened to 

seeing the man, that he saw the man through a window. Id., at 10:02:50. Setlllll perhaps 

contrast to S~'s claim, minutes later, following the prompting of the interviewer about 

breaking point that an older child was unaware or uncaring regarding the plight of his 

siblings. Se..,went on to describe how, during this incident, the Appellee proceeded 

; 

i downstairs after tying up the children and allowed a man to enter the home, which S~ 

knew to be the case because he heard a man's voice. Id., al 9:59:30. This stands in stark 

.,i 

S~ has an older brother, S. (Children's Advocacy Center Interview, 

7/22/14, at 9:44:35.) Inexplicably, S.was allowed to play video games or nap during this 

I ordeal. (CAC Interview, 7/3/14, at 9:53:00.) Under these facts, it strains credulity beyond that 

that, as a result, he was burned, Id., at 9:53:00. 

. -.. 

14 

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:· -. i 
15 

two separate incidents in which some of the children were tied up. Of course, three children 

Se credible at all in his story of the Appellee bringing a random man into the home on 

Sp .. 's CAC interview. Such an obvious detail is telling in its absence. We did not find 

rocking Se- says he could overhear. Id., at l 0:06:55. The man makes no appearance in 

again and then the Appellee and the man engaged in inappropriate action based upon the 

S~hen told the CAC interviewer about a second incident in which he and his 

siblings were supposed to have been tied up by the Appellee. Id., at 10:06:10. se11111, 

Sp .. and Sa.re alleged to have been tied up again. Id., at 10:07:40. s•and S. 

i were, according to Se~laying videogames whils. was, again, in his room. Id., 

I 

I at I 0:07:40. Se nlleges the Appellee again invited the man from the first incident over 

We will not say this is impossible, but we found it to be another instance of implausibility in 

. S~'stale. 

age of ten, maintained their silence about abuse at the hands of their caretaker for months. 

abuse at the first opportunity. We are to believe that a cohort of children, mainly under the 

and father about the abuse. Id., at 10:05:50 Yet, the children did not tell their parents of the 

the children, Se- stated that the children passed the time agreeing to tell their mother 

Additionally, during the first incident in which the Appellee is alleged to have bound 

SJ knew to be the case because, though chained to a radiator on the third floor, 

setllll9 heard Aery. Id. S could not have observed what, if anything, the 

_S__Lv 

Appellee might have done to redden .... 's face. 

........... 

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1·: 
16 

the children were bound in the kitchen on the first day, Id., at 10:05: 10, our doubts about his 

location. Granted, Sr4lllagreed that the children were bound on the third floor; however, 

he added the kitchen, which never surfaced in Setllllllll's account. As S~lleges that 

interview credible when he diverged so greatly from Se- on a detail as important as 

with baby wipes and paint rags. Id., at l 0:04:20. Sptll also added that the children were 

the meat of the story, in contrast to Se-, SPlllladded that the children were bound 

only ever hit his siblings on their hands or butts and nowhere else. Id., at 10:01 :50. Once into 

him on the hands and nowhere else. Id., at 9:58:50. Further, Sp 81 :tated that the Appellee 

and hit him. Id., at 9:56:50. Questioned about this, SP91tsaid that the Appellec smacked 

In Sp9's CAC interviews, he stated that the Appellee used to put him in time out 

specific part of the second incident. (CAC Interview, 7/22/14, at 10:07:30.) 

interview in which he stated that both S~ and So.were wearing clothes during this 

grabbed So .. s head and placed it near his privates and told s<>9to "do it." Id., at 

10:08:20. S~was supposed to have been present and watching this. Id. S stated 

Se .. told the CAC interviewer that during the second incident, the Appellee 

mollified by video games and accepting of a man entering the home for inappropriate liasons. 

held captive. We are incredulous that the children who were not bound would have been 

were free during the second alleged incident yet they did not liberate their siblings who were 

........ 

,. . 

I;, 
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17 

request affinnance as to Commonwealth's first matter complained of. 

believe we erred in granting the Appellee's petition for PCRA relief and we respectfully 

discovered evidence portion of the Post-Conviction Relief Act, relief was granted. We do not 

The Appellee having met all of the requirements for relief under the newlyrecantations were consistent in the main and were convincing to this Court. 

accusations in the CAC videos, which we found to be contradictory, S~ and SJtllll's 

2014). Here, we were convinced that the recantations were credible. Unlike the unsworn 

confirm rather than undercut or dispel the allegations. 2014 WL 10979820, 2 (Pa. Super. Ct. 

In Grajewski, cited supra, the PCRA court actually found the supposed recantation to 

the Court that he lied in his CAC interview because S~ had threatened to harm him if 

he did not. Mr. Stllconfirmed that Se-has been violent towards Sp ... 

of what was to be expected of him. Again, during his credible recantation, Siilllllinformed 

se9mlland si:tllllls CAC interviews. Yet, we are cognizant of the fact that some 

nineteen days elapsed between the interviews during which Se-could apprise Si9il 

It is undeniable that there were some consistencies amongst the inconsistencies of 

home from the third floor during the first incident. We could cite more inconsistencies that 

I led us to believe that se9111 and Srtllllts CAC interviews were not credible; however, 

I 

we believe the point has been made. 

-·· ··- - -·-·-----··---········· - . - .. -·-------·--·---·-···- ·-·-------·--·-·- .. ······- .. - ··- 

and Se 's stories increased. setlllllclearly stated that he viewed a man enter the 

t,.: 

., 
18 

It is true that two of the purported victims did not testify at the PCRA Hearing; 

analysis. 

so brief a portion of transcript and four victims' names were recounted, so we move on to our 

plead to charges addressing but two victims. Yet, we admit, it is confusing to attempt to parse 

memorialized in the amended information. We believe it was contemplated that the Appcllce 

Commonwealth responded that the counts plead to addressed two children. It is certainly not 

consolidated charges for four victims each then we are left to wonder why the 

charges. ff it is the Commonwealth's contention that the two counts of EWOC address 

specificity in the transcript as to which victims are addressed by the two distinct EWOC 

to state that there was to be no contact with the victims and listed four; however, we see no 

children?" And the Commonwealth replied: "Correct." id. The Commonwealth then went on 

this Court that these charges addressed two children. Id. We queried, "[s]o there's [sic] two 

(hereinafter: EWOC). (Transcript of Testimony, 5/8/15, at 2.) The Commonwealth stated to 

The amended information added two counts of Endangering Welfare of Children 

victims recanted. 

Appellee to withdraw her plea and reinstating her trial rights when only two of the four 

claim involving four victims. Therefore, the Appellant avers, we erred in allowing the 

counts of Endangering the Welfare of Children and that each count involved a consolidated 

: . : . ~ B. Remaining Accusers . . . .. . . . . .. . . .. . . 

··· 

1 The Appellant's third matter complained of is that the Appellee plead guilty to two 
! 

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j 

2

-~ ..,.~ /:-;? ~--'-· ~ _.;,~-/~C--· 

DA TED: April _J_, 2016 "MICHAELE. BORTNER, JUDGE 

BY THE COURT, 

Order entered in this case on November 30, 2015. 

Based upon the reasons stated above, this Court respectfully urges affirmance of the 

IV. Conclusion 

complained of. 

truth of s•and S.s accusations, to refuse to revisit the issue would be to cast aside 

the most fundamental notions of justice. We therefore pray for affirmance as to this matter 

proffered evidence that amounts to lies. In light of recantations that call into question the 

Appellee, one wonders if, perhaps unwittingly, but nevertheless, the Commonwealth 

two of the four children state that none of the children were tied up or abused by the 

youngest victims may have lied as well. Ultimately, this would be for a jury to decide. When 

of the victims through convincing recantations that necessarily lead to a finding that the 

however, the two supposed victims who did testify called into question the allegations of all 

~-·-···-- ···-•·••·•-· • •· -- -•-'"• ---·•·····------- ·• • ----~~·-•••"•·•·•·· •• • •• •• ·•·· ·• -····' • ·•-·•·•·- ------···•• , - ·r--•·•---•· •• ·•-••••• •• ••••' • •· •,. ., •.. , -•·· •••• • """'" -··-----· ···"'··-•---- ·•••• ··--·-•"'" • •• • ·• 

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l9 

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