J . S61008/14

* Retired Senior Judge assigned to the Superior Court. NON - PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA : : IN THE SUPERIOR COURT OF

PENNSYLVANIA v. : : ROXANNE TAYLOR, : No. 1641 WDA 2013 : Appellant : Appeal from the Jud gment of Sentence, September 13, 2013, in the Court of Common Pleas of Washington County Criminal Division at No. CP- 63 - CR- 0000827 - 2012 BEFORE: FORD ELLIOTT, P.J.E., WECHT AND STRASSBURGER,* JJ. MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED FEBRUARY 09, 2015 Appellant appeals the judgment of sentence imposed following her conviction on numerous charges related to her criminal neglect of her two six-year- old boy and girl twins. Finding no error, we affirm. Appellant came to the attention of authorities on February 15, 2012, when a stranger found the male child wandering along Seventh Avenue in New Eagle wearing only a diaper and T- shirt. The child’s arms and legs were purple, and he was covered with feces. At the hospital, the child was determined to be suffering from hypothermia. A subsequent police investigation uncovered appellant’s squalid home, and discovered the twin sister in equally poor condition. Both children were suffering from malnutrition.J. S61008/14

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On July 16, 2013, appellant was convicted of two counts each of aggravated assault, simple assault, unlawful restraint, false imprisonment, endangering the welfare of children, and recklessly endangering another person. 1 On September 13, 2013, appellant was sentenced to an aggregate term of 14 to 50 years’ imprisonment. This timely appeal followed. Appellant raises the following issues on appeal: 1. Whether the evidence presented during trial lack [sic] sufficient elements of the charges of Aggravated Assault to render a guilty verdict. 2. Whether the Court erred and/or abused its discretion in granting the Commonwealths’ [sic] objection to the introduction of a preliminary transcript of an unavailable witness? 3. Whether the Court erred and/or abused its discretion during Jury Voir Dire and select ion? Appellant’s brief at 6 - 7. We find no error with the trial court’s analysis. After a thorough review of the record, the briefs of the parties, the applicable law, and the well - reasoned opinion of the trial court, it is our determination that there i s no merit to the questions raised on appeal. The trial court’s meticulous, 16 - page opinion, filed on February 26, 2014, comprehensively discusses and properly disposes of the questions presented. We will adopt it as our own and affirm on that basis.

1 18 Pa.C.S.A. §§ 2702(a)(1), 2701(a)(1), 2902(a)(1), 2903(a), 4304(a)(1), and 2705, respectively.J. S61008/14

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Ju dgment of sentence affirmed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary Date: 2/9/2015Circulated 01/30/2015 09:37 AM 

### Copies: Molly Maguire Gaussa. Esq.; 

### Troci McDonald, Esq. IN THE COURT OF COMMON PLEAS OF WASHINGTON COUNTY, PENNSYLVANIA CRIMINAL DIVlSION 

### COMMONWEAL

### TIl OF PENNSYLVANIA ) vs . ROXANNE TAYLOR, Defendant ) ) ) ) ) NO . 827 of 201 2

TRIAL OPINION PURSUANT TO PA.IU.P. 1925 

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### The Defendant, Roxanne Taylor, was tried before this Court and aji!& of·." her peers from July 9, 2012 through July 15 , 2013 . She was found guilty ofAggravated Assault, Unlawful Restraint, Endangering the Welfare of a Child, Simple Assault. and 

### Recklessly Endangering Another Person, two counts for each charge . On September 13, 2013, the Defendant was sentenced to a total period 

### ofincarceration ofnot less than 

### fourteen (14) years, to not more than fifty 

### (50) years . FACTS The victims 

### ofthe crimes committed 

### by the Defendant are Ms. Taylor'S two children, E .B . and A.B .. six year old twins . The crimina1 investigation involving the 

### Defendaot's conduct began on February IS, 2012. On that day, a man on his way to work at 6:00 a.m. noticed a small child along on the side ofthe road clad only in a diaper and at-shirt. (T.T . p. 67) The mao, Edward Dennont, stopped immediately, picked up the child and asked him where he lived . ' The child pointed to the house in front ofhim . I Throughout Mr. Dennont's encounter with the child, he thought £ .S . was a girl.

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Mr. Dermant knocked on the door but no one answered . The child was shivering uncontrollably . Mr. Dermont took the child to his truck, wrapped him in a coat and called his wife, who called the police. Mr. Dennont then drove to his own home located a few minutes away . Both Mr. Dermont and his wife observed that the child's anns and legs were purple, that he was shaking from the cold and was covered in feces . (T.T. pp . 34-8, 40 , 67) . They wrapped him in an afghan and put a heating pad on him in an effort to warm him . Mrs. Dennont fed him Rice Krispies, toast and hot chocolate, which he readily ate. (T.T. p. 69 ) 

### The police arrived within a few minutes and the paramedics arrived and took the child to the emergency room at the Mon Valley Hospital. The paramedic, Kenneth Prunty, observed that the child's hands and feet were purple and mottled and that the child was emaciated and thought he (he also believad the child was a girl) was two or three years old . (T. T . pp. 134, 136-7) Mr. Prunty testified that the child was the worst case of neglect he had seen in his thirty-one years ofbeing a paramedic . (T . T. p . 153) . In the meantime, the police arrived at the defendant' s home and tried to rouse the residents therein. Officer Rocco banged on the door and went around the house knocking on windows, hitting the glass 

### with a flashlight to make noise. The officer observed an open window on the side ofthe house about ten feet off the ground and that the side yard underneath the window was full of dog feces . (T .T . p. 85) After at least one half of an hour, an hour after the child was found , the Defendant Ms . Taylor came to the door. (T . T. p . 89) The officer asked her if she had children and to check on them . The Defendant led Officer Rocco through the house to the children's bedroom . She unlocked

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a dead bolt on the bedroom door and opened the door. (T.T . p. 9J) One child was asleep on a mattress and the window 

### was open; the Defendant stated to the officer 

### that E.B . must have climbed out the window . Another inhabitant ofthe house, Edward Buckholtz, appeared from another bedroom. Mr . Buckholtz is the biological father ofthe children' As the officers went in the home on February 15,2012, they noticed a terrible stench ofurine and feces throughout the home . (T .T. pp . 90 , 161) The Defendant kept a large menagerie ofanimals in the house. There were at least six dogs in the basement, five cats throughout the house and two rabbits in cages . (1',T. pp. 1044-5) When Officer Rocco awoke the child, he noticed that she was very thin and bad some feces caked on her. (1'T p . 91) He noted there were no toy, but there was a potty chair full of feces and wine on the floor of the room . Another officer then transported the Defendant, Mr. Buckholtz and A,S. to the emergency room where ER was being treated, (1' ,T. p. 1019) ER arrived at the emergency room by ambulance at 7:00 ILm , He had a temperature of94.5 degrees. considered to be hypothermic , (T,T p , 168) . The emergency room nurse, Janice Varley, observed that E.B. had a distended belly, that his limbs were extremely thin and that he had bruising on his body, (Exhibits 12, 14-18,21 ), The child's diaper was clean but 

### he 

### was covered in feces , allover his feet and most ofhis body . (T.T. p . 170, Exhibit 22) . The child could speakonJy a few words, His hair Was thin and brittle and he had a low potassium level , signs ofmalnutrition . (T.T. p.p. 173. 178-9) .A .R was observed to have a distended abdomen and her legs were bowed and thin , (T,T p. 231), Her hair was thin and matted with urine ; she 

### had.feces on her body .

1 Mr. Buckholtz wu also cbarged with the same crimes 8l Case No. 826-12. He pled guilty to Aggravated**Assaul~** 

### two counts, and received a negotiated .entence oftwo to four 

### years . 3Circulated 01/30/2015 09:37 AM

The children were showered and fed and transported to Children's Hospital of Pittsburgh 

### for further treatment. (T.T. p. 188) At Children's Ho>-pitol, a full medical cheCK-up 

### was completed and a full medical background was obtained. The children were born on January 27 , 2006 at full term. At birth , E.B. weighed eight pounds, 

### seven ounces and A. a. weighed seven pounds and six ounces. (T .T. p . 553) . Those weights were considered '''robust'' and were in the 75% 

### per<:entile. The children's medical care provider was 

### Mon Valley Community Health Service . The children were seen at age three months, at which time they were noted to 

### be progressing normally. They were 

### not seen again until age twenty-three months . By that time, the 

### children had not 

### received the requiSite immunizations 

### and had 

### fallen offthe chans , in weight and height, and were by 

### then below the fifth 

### percentile. They were diagnosed as failure to thrive. (T.T. p. 555) . They were sent to an endocrinologist; no medical condition was found to be the cause 

### oftheir poor 

### growth. Social Services were 

### contacted and became involved with the family. Washington County Children and 

### Youth Social Service Agency was involved on and offfi'om 2008 until February 2011. In-home parenting was provided and the children were referred to Head Start and speech therapy. The Defendant signed up for the WIC program which included nutrition counseling. Generally, the 

### Defendant WIIS 

### cooperative with in-home services but did not follow through with appoinbnents and therapies provided outside ofthe home . The last visit to 

### the pediatrician with the Defendant was in January 2011 . (T.T. 

### p. 565) 

### E.B. weighed thirty-five pOWJds and WIIS 

### 39.5 inches and 

### A.B. WIIS 

### thirty-six pounds and 40 .5 inches . (T.T. pp. 565 , 587) These reflected fairly normal data, above the 25" percentile. By February 15, 2012, a year later, the day E. .B. 

### was found outside, the children 

### had lost

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# '- '- weight over the year. a very alarming occum:nce In children this age . A child at age nvc 

### and six average. eight to ten pounds a year in weight gain. (T.T. p. 360). Dr. Squire. of Children', Hospital observed both children', 

### developmental del.ys to 

### be at a level of eighteen to twenty-four months behind and because no medical condition was present, the doctor concl uded that the developmcnta1 delays were caused by an inadequate home environment. (T.T. p.p . 364 . 370) Dr .**Squires ~**  medical assessment was 

### that the children 

### were subjected to neglect. (T.T. p. 367). Upon discharge from Children's Hospital, the children were placed in foster care. They both quickly gained weight. At the time of trial, 

### fifteen months later, E.B. weighed fifty-nine pounds and A.B. weighed fifty-six pounds, a gain of approximately twenty pounds within a year, (T.T. p.p. 471,486) Dr. Wolford ofthe Child Advocacy Center ofChildren's Hospital, an expert in the field ofchild abuse and neglect, reviewed this case and testified that the children were the subject ofchild abuse and neglect . (T.T. p.p. 370) . 

### Dr. Walford quantified their condition as moderate malnutrition . (T.T. p. 371) PhysiCian Assistant Aislynn Jenkins testified that chronic malnutrition impairs long-term brain and organ development (T.T. 

### p. 602). The Defendant testified that she did not work and was 

### home with 

### the children . She also lOok care ofher disabled brother on a daily basis. (T.T. p. 990) The Defendant took morphine for back pain . (T. 

### T. p. 1064) She explained that she failed to hear Officer Rocco on February 15,2012 because the air conditioning 

### was so loud. (T. T. p. 1093) The temperllture on that 

### day was 35 degrees. (T.T. p. 137) 

### The Defendant also testified that on February 15, 2012, the children were not malnourished and their physical 

### condition as depicted in Exhibits 21 and 29 were normal and appropriate and th.tthe

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children's condition as depicted in Exhibits 46 and 47 show the children to be overweight. (T.T. p . 1101 ) ISSUES ON APPEAL The Appellant raises 

### three issues in her concise State 

### ofMatters Complained of on Appeal: I. SUFFICIENCY OF THE EVIDENCE FOR ACCRA VATED ASSAULT 

### The evidence and testimony presented at the 

### time ofthe 

### Defendant's trial was insufficient to establish Defendant's guilt regarding the charges ofAggravated Assault beyond a "'8Sonable doubt. The elements of Aggravated Assault we'" not establiShed or proven as the injury was as a result ofAggravated Assault is to be a pennanent serious bodily injury . (Statement ofMatters Complained of on Appeal, No . 1) In evaluating a challenge to the sufficiency afthe evidence, the Court 

### must determine whether the evidence edmitted at trial and all ",",onable infe",nce. drawn therefrom, when viewed in light most favorable to the Commonwealth as the verdict wiMer, is 

### sufficient to permit the trier of fact to 

### find that 

### each element ofthe crimes 'Charged were proven beyond a reasonable doubt. Commonwealth y. Hopkins. 741 A.2d 910 (Pa . Super. 2000). Ifthe trier offact ",asonable could have determined from the evidence presented that each element was established, the evidence is deemed sufficient to support a guilty verdict. Id. at 914 . Thejury has sole responsibility of determining whether to believe or disbelieve a witness. 

### l!l. "This standard is equally applicable to cases where the evidence is circumstantial rather than direct so long as the combination ofthe evidence I inks the accused to the crime beyond a reasonable doubt." Commonwealth v. Thomas, 67 A . 2d 594, 597 (pa. Super. 2005) . At the trial, the Defendant moved for Judgment of Acquittal ofthe charge of Aggravated Assault, claiming that the Commonwealth failed to establish that the

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Defendant acted recklessly under cucwnstances manifesting extreme lndifference to the 

### value ofbuman life and that the 

### Commonwealth fililed to establish that either child victim ,uffered serious bodily injury. (T. 

### T. pp. 751, 760) . The Defendant again raised those issues at the conclusion ofthe trial. (T . T. 

### p. 1124) The issue on appeal, whether sufficient evidence was presented to establish serious bodily injury, bas been properly 

### preserved . The Defendant was charged with two counts ofAggravated Assault, one for each child The Criminallnfom1ation charged the Defendant as follows: "The actor did attempt to cause serious bodily injury to another, namely, six-year old (E .B.) and (A.B .); 

### or caused such injury intentionally, knowingly, or recklessly under circumstances manifesting extreme indifference \0 

### the value ofhuman life, in 

### violation of Section 2702 (a) (1) ofthe Pa. Crime Code Act ofDecember 6, 1972, 1& Po. C.S.A . §2702 (a) (1), as amended." See Record, DockelNo . 9. To substantiate a guilty verdict for the charge of aggravated assault pursuant to Pa. C.S.A. §2701(a) (1) , the 

### Commonwealth must establish beyond a reasonable doubt that I.) 

### the Defendant caused serious bodily injury to the victim or victims and 2.) that the Defendant acte d intentionally, knowingly or reckless Iy under circumstances 

### manifesting extreme indifference to the 

### value ofhuman life OR 1.) that the Defendsnt attempted to cause serious bodily injury to the victim or victims and engaged in conduct 

### that constituted' a substantial step toward causing serious bodily injury and 2.) that the Defendant's conduct was intentional, that 

### it was her conscious object or purpose to cause 

### serious bodily injury .

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The Commonwealth charged the Defendant with either causing serious bodily injury or attempting to caUse serious bodily on each child . Causing or attempting to cause were Dot charged sep81'8tely. The verdict slip did not reflect whether the jury found 

### that the Defendant actually caused serious bodily injury or attempted to caUSe such injury. Th. Defendant contends in 

### her Concise Statement, that the 

### evidence did not establish that the injury rose to the level of "permanent serious bodily injury" necessary to find Aggravated Assault. Serious bodily injury is defined as any "bodily injury which creates a substantial risk ofdeath or which causes serous permanent disfigurement Or 

### protracted loss or impairment ofthe function of any bodily member or organ ." 18 Po. C.SA §2301. What constitutes serious bodily injury must be 

### decided on a case by case basis. CommQnwealth v. Dailey. 828 A.2d 356 

### CPa Super. 2003). it 

### is for the jury to decide if the Commonwealth 

### has proven that serious bodily injury occurred. Here , both children were severely underweight By all aCCOWlts, they were emaciated, bad distended bellies 

### and the medical professionals who saw them reported that they looked like children from a Holocaust camp or a third world country. The evidence. ifbelieved, established that the children wen: neglected. The lock on the bedroom door and the over flowing potty chair are facts from which it could be inferTed that the children were left alone for long periods 

### oftim• . No toys were observed to be available for the children . The children, at age six years of age, were not potty trained, had very limited verbal skills, did not know basic raclS and lacked many social skills. The jury could reasonably conclude that they were the victims of abject neglect. Further, the jury could reasonably conclude that the

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Defendant failed to provide sufficient food to the children. Dr. W olfor d of Childn:n's Hospital opined that the malnutrition impaired the childn:n's growth . E.B . was bowlegged, which caused him to be clumsy and**impai~** his walking . A.B. Was also bowlegged . Ajwy could reasonably conclude that the lack of nutrition provided to the children slowed their growth , deformed their bones, delayed their language development and impaired the children ' s overall brain development. The jury could reasonably find t hat those conditions were ..protracted .... impairment of the function ofany bodily member or organ." The jury could also, in the alternative, have found that the Defendant failed to adequately feed the children and neglected them and that the failure created a substantial risk of serious bodily injury , which proves aggravated assault by attempting to cause serious bodily injury . In addition to proving that the Defendant caused or attempted to cause serious bod\ly injury, the Commonwealth must also have proven that the Defendant possessed 

### the requisite 

### mens rea For the attempt to 

### cause serious bodily injwy. the Commonwealth must have proven that the Defendant had a strict mens rea, that the Defendant's conduct was intentional, 

### that it was her purpose to cause serious bodily i njury . The Court recognizes that intent to cause serious bodily injury may be proved circumstantially . Commonwealth v. Rishtley, 617 A .2d 1289 (Pa . Super. 1999) However, the case sub judice was devoid ofevidence ofthe Defendant'S intent to hann the children. There was no evidence of anger or withholding offood for punishment or retribution. The element ofintentionally or knowingly caused the 

### hann was not established. However , the jury could have reasonably concluded that the Defendant's actions constituted a recklessness, that she acted recklessly under circumstances

9Circulated 01/30/2015 09:37 AM manifesting extreme indifference to the value ofhwnan life. The children had no 

### medical conditions that affected the proper absorption or digestion offood. A reasonable inference could be made that they were not fed sufficiently and properly, resulting in a weight of only thirty-five pounds at age six. The Defendant's statement that the children did not appear malnourished upon their admission to the hospital and appear overweight a year later is very telling . One look at those pictures, Exhibits 21 . 29. 46, 47, shows how reckless her conduct was and how dangerous the outcome could have been without the chance encounter between a stranger and E.B . Thejwy could reasonably conclude that the Defendant's treatment and care ofher children constiruted reckJess behavior manifesting an extreme indifference to the well.being and safety of E .B. and A.B. Thus, the evidence**w~** sufficient to establish that the Defendant caused serious bodily injwy to E.B . and A.B . - by failing to feed them sufficiently and by neglecting them, ",suiting in malnutrition, slowed growth, defonned legs, language delays and an overall failure to thrive . The evidence was sufficient to establish that the firilure to provide food and the overall neglect showed a recklessness manifesting an extreme indifference to the value ofhuman life. Sufficient evidence 

### was present to support the jwy's verdict that the Commonwealth proved that the Defendant committed Aggravated Assault against each ofthe children . 2. ADMISSIBILITY OF PRlOR TESTIMONY OF DR. HOLEKAMP The Court erred andlor abused its discretion in granting 

### the Commonwealth's objection to the introduction of the Preliminary Hearing Transcript ofDoctor Holekamp introduced by Defense COWlsel to Impeach the testifying witness . (Trial Transcript: 191-196). (Statement ofMatters Complained of on Appeal, No . 2)



### 10Circulated 01/30/2015 09:37 AM

The Defendant avers that the CO\U1 erred 

### by sustaining the Commonwealth's objection that prior testimony of 

### Dr. Holekamp was inadmissible hearsay. 

### Dr. Holekamp testified at the preliminary hearing as a witness 

## ror the Commonwealth. but did not testify attriat. Hearsay is defined as, ". statement, other than one made by the declarant while testifying at the 

### mal or hearing. offered in evidence to prove the truth of the maner asserted . Pa.R.E. 801(c) . Hearsay is generally not admissible. Pa.R.E. 802. However, fanner testimony can 

### be admissible when a declarant is WlBvailable and the party against whom the testimony is now offered had an adequat e opportunity and similar motive to develop the testimony by 

### dirttt, cross , or redirect examination . Pa.R.E . 804. At trial, the COlTUJ\onwealth called Jamie Lynn Varley lIS one ofits many witnesses . (T.T. at p . 167. ) On February 15,2012, she was worldng as registered nurse at Mon Valley Hospital in the emergency room. Upon arriving 81 the hospital at 7 : 00 a.m., Ms. Varley learned that she would be treating a**six~year-old** 

### boy who was hypothermic. (T. T. p. 168). The child's temperature was at 94.5 degrees at his admission .' ld . When the witness was asked to describe the child's appearance at the emergency room , she answered : He looked like a child from a third world country . His abdomen was distended, his legs looked like little tree sticks . He just looked broken. I couldn't' believe he was six years old. He looked like a thiee-year-<Jld . He was in a diaper. He had feces in between his toes, on his hands, stuck on his leg . His feet were reddish, purplish color. His legs looked mottled. like they didn't have enough profusion to the legs .

J On cross-examination. Ms . Varley testified that the child's temperature was 94.9 deatces.

1ICirculated 01/30/2015 09:37 AM 

# - (T.T . pp. J68:21 - 169:6.) Thereafter, the witness offered compelling testimony to the 

### care provided and the deplorable state ofthe child's wellbeing. She 

### was then offered for cross examination . During cross-examination. Defense counsel asked the witness if she was aware of 

### Dr. Holekamp's testimony at the preliminary hearing . (T.T. 

### p. 191) The witness was not aware 

### ofthe Doctor's previous testimony. (T,T. p. 191). An attempt to read from the 

### transcript of the Doctor's testimony 

### was mede, which 

### was objected to by the Commonwealth. Specifically , Defense COWlsel wanted to introduce the Doctor' s statement of "we kind of warmed him up" . (T.T. pp . 191- 193) He argued that the transcript was not an "outooOf..coun statement," but rather testimony from a previous 

### hearing and therefore outside the definition ofhearsay. Defense counsel also argued that the statement 

### was being used for impeachment purposes . (T.T. 

### p. 192 .) At sidebar, Defense counsel's position was 

### that the witness' testimony characterized the child 's condition as a severe case, while the Doctor's prior testimony painted a less grim picture 

### of the child's condition and treatment provided. (T . T. 

### pp . 192

- 193 .) The Doctor' s testimony would be 

### used to impeach the witness' credibility. This Cowt reminded Defense Counsel that he could call the Doctor as a witness ifdesired , but cOWlsci believed the Doctor's presence was unnecessary. The Court sustained the Commonwealth's objection. 

### Though a declarant's former testimony may be 

### admissible, such exclusion to the 

### hearsay rule requires that the declarant be Wlavailable at trial . Pa .R.E . 804(b). Unavailability is defined as :

"Unavailability as a witness" includes situations in 

### which the declarant : 12Circulated 01/30/2015 09:37 AM (1) is exempted by ruling of the coW1 on the ground of privilege from testifying concerning the subject matter ofthe declarant's statement, or (2) persists in refusing to testify concerning the S\Ibject matter of the declarant's statement despite an order ofcourt to do SO; or (3) testifies to a lack of memory of the subject matter 

### ofthe declarant's statement; or (4) is Wlable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity; or (5) is absent from the hearing and the proponent of 8 statement 

### has been unable to procure the declarant's attendance.. . by process or other reasonable means. A declarant is not unavailable as a witness if exception, refusal, claim of lack of memory, inability, or absence is due to the procurement or wrongdoing of the proponent of a statement for the purpose of preventing the witness from anending 0 " testifying . Pa.R.E. 804(8) . The case law surrounding an Wl8vailable witness ' prior testimony largely focuses on testimony wished to be introduced by the Commonwealth. See, Commonwealth v. StayS, 70 A.3d 1256 (pa. Super. 20 13)(addressing admission of preliminary hearing testimony when a witness had subsequently been**murdered)~** Commonwealth v. Cruz·Cenleno. 668 A.2d 536 (Pa.Super. 1 99S)(holding that a witness who cannot be found will be deemed unavailable only if a good-faith effort to locate the witness and compel testimony had failed); Commonwealth v. Smith, 647 A.3d 907 (pa.Supe'. J994)(where a witness' refusal 

### to testify at trial rendered him unavailable). Whether a good-faith effon has 

### been made is a question ofreasonableness . Smith, supra. (citing Commonwealth v, Melson, 637 A.2d 633 (pa.Super 1994». The record is devoid of any allegations that Dr. Holekamp was unavailable to attend the trial . He had relocated to Florida. The Commonwealth had suggested that his entire testimony be presented to the jury but the Defendant did not agree . Defense

13Circulated 01/30/2015 09:37 AM

Counsel simply did not believe thllt the Doctor"s preaence end testimony were neceaary for the limited pwpose . No reasonable good-faith 

### cfi'ort was made to procure the Doctor's testimony at 

### trial . Inconvenience alone docs not 

### manifest \Ulllvailability. 

### As such, the former testimony exception did Dot apply to the Doctor's stalement and 

### was inadmissible hearsay. An 

### out-of-court statementjs not hearsay when it is being offered far a purpose other than the truth ofthe matter asserted. Pa.RE . 80 I . Defense counsel argued that the statement would b. 

### used for impeachment purpcses. 

### This Court notes lbat this question 

### is analogous to the matter before the Pennsylvania Supreme Court 

### in Commonwealth v , 

### Baa. 43 I A.2d 909 (po. 1981). There, the defendant testified in his homicide trial . On cross

### examination, the Commonwealth impeached the defendant with verbatim statements made by a witness to the slaying as recorded by the investigating officer. The Commonwealth made a similar argument: that the statements were not he"""y , as they were only offered for impeachment PllIpos" and not offered for the truth ofthe matter they asserted. 

### 14 at 9 12 . The Supreme Court stated, In our view, however, this argument either 

### reflects a hopelessly shallow understating of the function of lbe hearsay rule, or, worse, disingenuously seeks to defend a subtwge to introduce otherwise inadmissible evidence 

### under the 

### guise of 

### impeachment The statement. .. for impeachment 

### by conb'adiction. by its very nature is founded 

### upon the 

### truth of the contradictory evidence offered . 

# • •• The statement here in question, obviously incompetent hearsay lfotfered .. direct evidence, gained no competency by vinue of the fact that it was brought out on crossexarnlnation in 

### an effott to estshlish that [defendant's] 

### recitation ofthe facts was 

### untrue. [d. at912-9 1 3 .



### 14Circulated 01/30/2015 09:37 AM

Ms . Vadey cbaraeterized the child's condition as (evere . TIle Doctor' s isoJated pnor statement suggested a less severe condition . Defense counsel's goal was to convince the jury 

### that the nUI!le's opinion was skewed and they should give greater weight to the Doctor' , isolated sta!emenl . The Doctor's testimony would be used exactly for the matter that it asserted . The statement 

### was unquestionably inadmissible he""" y. The Court 

### did not commit 

### error. 3. 

### VOIRDIRE 

### The Court 

### erred andlor abused its discretion during Jury ViOT Dire and selection . The Court did not allow for a second day of jury selection end limited the Defendant ', selection ofimpartial jurors by way of denying a second day of Jury selection. (Statement of

### Matters Complained ofon Appeal, No . 3) As • threshold matter, the Court finds thet thi s issue i. waived. Under Pa. R. App. P. 302(0), issues nol 

### raised in the lowor court are Waived and cannot be asserted for the fj"t time on appeal. Pa. R.A.P . No . 302 (a); Commonwealth y . 

### Fitzgera!d, 877 A.2d 1273 (pa. Super. 2005) . AI no time did the Defendant request morej urors Or ask for " a 

### second day of jury 

### se1ection. tI Jury selection begen on July 8, 2013 at 2:05 p .m. (See Transcript JUly 8, 2013 ). The pool consisted ofthirty-eight potential jurors. Five were stricken faT cause at the motion ofthe Defendant Those jurors were 88, 321 , 308, 21 , and 14 . Additionally, nefendantmoved to 

### strike 

### an additional five (5) jurors (No. 51, 96, 94, 310, and 382) 

### which were denied . The Commonwealth and Defendant were each affOrded seven preemptory 

### strikes . 

## There 

## were more than a sufficient nwnber ofqualiJiedjlD'Ors fi'om which to choose. The Commonwealth and Defendant then selected twelve jurors foUowed by two alternatejurors. This described process was never objected 

### to the Defendant. Accordingly, any issue arising from jury selection is waived on appeal. Even if the fivejW'Ors which the Defendant bed esked to be exc:uoed bed been struck, a 15Circulated 01/30/2015 09:37 AM

sufficient number of jurors remained and were available when tho solection 'Wa3 to bc::sin

### Fourtc:cnjurol'll and fourteen strikes fur a total oftwenty-eight persons were needed. 

### Th. Court did not limit a second day of jury ,election. Th= was 

### absolutely no need for more jurors or 

### a second day. 

### The jury selection 

### was fair and impartial and 

### the Court committed no error in the voir dire. CONCLUSION 

### The conviction ofRoxanne raylor on all counts should be aflinned. BY THE 

### COURT:

Date: 

# f':e.-t. d£/ ;zo

# /'-1

16