Com. v. Sloane, A. ( 2018 )

J-A01003-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ARY SLOANE :
:
Appellant : No. 538 EDA 2017
Appeal from the Judgment of Sentence August 1, 2016
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0009924-2014
BEFORE: LAZARUS, J., OTT, J., and PLATT*, J.
MEMORANDUM BY LAZARUS, J.: FILED MARCH 20, 2018
Ary Sloane appeals from the judgment of sentence, entered in the Court
of Common Pleas of Philadelphia, following her conviction of criminal
conspiracy1 and engaging in tampering with public records/information.2 After
____________________________________________
1 18 Pa.C.S. § 903.
2 18 Pa.C.S. § 4911. Section 4911 defines the offense of Engaging in
Tampering with Public Records/Information, as follows:
(a) Offense defined.--A person commits an offense if he:
(1) knowingly makes a false entry in, or false alteration of,
any record, document or thing belonging to, or received or
kept by, the government for information or record, or
required by law to be kept by others for information of the
government;
(2) makes, presents or uses any record, document or thing
knowing it to be false, and with intent that it be taken as a
____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-A01003-18
our review, we affirm on the basis of the opinion authored by the Honorable
Tamika R. Lane.
The Office of the Inspector General launched an investigation in 2011 in
relation to allegations of widespread cheating on the Pennsylvania System of
School Assessment (PSSA) standardized testing. In 2014, the grand jury
issued a presentment recommending charges be filed against Sloane and
other individuals associated with Cayuga Elementary School. Sloane, the
coordinator for standardized testing at Cayuga Elementary School in
Philadelphia, was accused of helping students cheat on a 2007 PSSA test.
Following trial, a jury convicted Sloane of conspiracy and tampering with
public records/information, and the court sentenced her to two years of
reporting probation and two hundred hours of community service involving
literacy programs. Sloane filed post-sentence motions, which were denied by
operation of law, and this timely appeal. Both Sloane and the trial court have
complied with Pa.R.A.P. 1925.
____________________________________________
genuine part of information or records referred to in
paragraph (1) of this subsection; or
(3) intentionally and unlawfully destroys, conceals, removes
or otherwise impairs the verity or availability of any such
record, document or thing.
(b) Grading.--An offense under this section is a
misdemeanor of the second degree unless the intent of the
actor is to defraud or injure anyone, in which case the
offense is a felony of the third degree.
18 Pa.C.S. § 4911. The offense here was graded as a misdemeanor of the
second degree.
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J-A01003-18
Sloane raises two issues for our review:
1. Did the trial court commit reversible error when it
allowed the Commonwealth to personally vouch for the
credibility of two of its key witnesses?
2. Was the evidence sufficient to support the verdict of
criminal conspiracy where no witness testified that
Sloane “agreed” to engage in any “criminal” conduct?
Appellant’s Brief, at 4 (reworded for clarity).
The record does not support Sloane’s claim that the prosecutor
“personally vouched” for the witnesses’ credibility. Rather, the prosecutor
argued that the witnesses’ testimony was credible in light of the fact that they
were reluctant to testify against their former colleague. See N.T. Trial,
2/29/16, at 53-59.
Further, Sloane’s argument that neither of the witnesses testified that
she agreed to engage in criminal conduct is unavailing. The evidence
established that Sloane instructed a teacher, with the permission of the
principal, to coach the students taking the PSSA tests on how to answer the
questions so that Cayuga Elementary School’s scores would be improved. The
evidence showed that Sloane brought Cayuga teachers a box containing the
2007 PSSA test materials, told them the material needed to be back in the
box in a half hour, and that the week before testing Sloane gave a teacher the
tests, directed her to a photocopier, and said, “Copy what you need.” Id. at
13, 19-20.
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J-A01003-18
The Commonwealth does not have to prove that there was an express
agreement to perform the criminal act in order to obtain a conspiracy
conviction. Rather a shared understanding that the crime would be committed
is sufficient. Commonwealth v. Nypaver, 69 A.3d 708 (Pa. Super. 2013).
See Commonwealth v. McCoy, 69 A.3d 658 (Pa. Super. 2013) (conspiracy
may be inferred where it is demonstrated that relation, conduct, or
circumstances of parties, and overt acts of co-conspirators sufficiently prove
formation of criminal confederation). The circumstantial evidence presented
here was sufficient to prove the conspiracy and the elements of the crime of
tampering with public records/information.
After our review of the parties’ brief, the record, and the relevant law,
we conclude that Judge Lane properly disposed of these claims. We,
therefore, rely on Judge Lane’s opinion to affirm the judgment of sentence.
The parties are directed to attach a copy of that opinion in the event of further
proceedings.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/20/18
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Circulated 02/22/2018 02:17 PM
IN THE COURT OF COMMON PLEAS
FIRST JUDICIAL DISTRICT OF PENNSYLVANIA.
TRIAL DIVISION - CRIMINAL SECTION
COMMONWEALTH OF PENNSYLVANIA CP-51-CR-0009924-2014
v.
RECEIVED
ARY SLOANE EDA #
JUN 0 7 2017
OPINION PCRA Unit
CP Criminal Listings
LANE, J, June 6, 2017
OVERVIEW AND PROCEDURAL HISTORY
On March 3, 2016, following a jury trial, this court found Ary Sloane ("Defendant") guilty of
Criminal Conspiracy- Engaging in Tampering with Public Records/Information under Title
18 Pa.C.S.A. § 903. Sentencing was deferred for a Pre-Sentence Investigation Report. On August
1, 2016, this court granted in part and denied in part Defendant's Motion for Extraordinary
Relief. Trial court granted Defendant's motion to change gradation of the charge to a
misdemeanor of the second degree and sentenced Defendant to two (2) years of reporting
probation, as well as two hundred (200) hours of community service involving literacy programs.
By operation of law, a post sentence motion filed on August 11, 2016, was denied on December
9, 2016.
Defendant filed a timely appeal on January 8, 2016. This court sent a 1925(b) Order on
January 10, 2017. Defendant filed a Statement of Matters Complained of on Appeal_qn January
0009924-C43
v SLOME,ARY
27, 2017. The following issues are raised on appeal:
1\1\11711,4111111111
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Comm. v. Ary Sloane
1. The Commonwealth personally vouched for the credibility of two (2) of its key witnesses.
2. At trial, no witness testified that Defendant actually "agreed" to engage in any actual
"criminal" conduct and therefore, the evidence was insufficient.
FACTS
The annual Pennsylvania System School of Assessment ("PSSA") is a standardized test for
all Pennsylvania public school students, from third to eighth grade. (N.T. 2/24/16 at 40-41, 47).
Federal law requires the Commonwealth to assess these students' competency in English
Language Arts and Math. The Commonwealth must also assess fourth to eighth grade students'
comprehension of science concepts. (Id). The Commonwealth keeps records of student
performance in each school and submits the records to the Federal Department of Education. (Id).
Underperforming schools face sanctions and consequences. (Id at 42). For instance, schools that
do not make their yearly progress must submit a corrective plan to the Commonwealth or school
district and undergo additional oversight and supervision. (Id. at 45). School assessment
coordinators, that administer the PSSA test, are trained not to look at the test booklets prior to test
administration. (Id. at 57-58, 60-61). The Pennsylvania Department of Education ("Department")
sets the protocols for administering the tests. (Id. at 62).
John Weiss, Assistant Director of the Pennsylvania Department of Education, testified that
in 2004, the Department issued a warning to Cayuga Elementary School and placed it under school
improvement status for failing to meet the adequate yearly progress (AYP). (Id at 70). In 2006,
the school met the AYP benchmark but received a warning; they received the same status again in
2007. (Id). The school was in school improvement status from 2008-2009. (Id.). Records reflected
that the school met the AYP standard in 2010 and 2011 before falling back into warning status in
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Comm. v. Ary Sloane
Defendant first alleges that the trial court condoned the Deputy Attorney General's witness
vouching, This claim fails. It is misconduct when a prosecutor asserts the reliability of a witness.
Though such actions are deemed misconduct, the acts must still be sufficiently prejudicial to
constitute reversible error, In Commonwealth v. Koehler, the Pennsylvania Supreme Court
stated, "Regarding appellant's claims that the prosecutor improperly vouched for the credibility
of [a witness] while improperly calling defense witnesses, liars, we likewise find no merit. It is
settled that it is improper for a prosecutor to express a personal belief as to the credibility of the
defendant or other witnesses. Commonwealth v. Koehler., 558 Pa. 334, 737 A.2d 225 (1999),
However, the prosecutor may comment on the credibility of witnesses. Commonwealth v.
Jones, 571 Pa. 112, 811 A.2d 994, 1006 (2002) (Emphasis added); Commonwealth v. Simmons,
541 Pa. 211, 662 A.2d 621, 639 (1995). Further, a prosecutor can respond to defense arguments
with logical force and vigor. Koehler, 737 A.2d at 240; Commonwealth v. Brown, 551 Pa, 465,
711 A.2d 444, 454 (1998).
It is well settled that if defense counsel attacks the credibility of witnesses in closing, the
prosecutor may present argument addressing the witnesses' credibility. See Commonwealth v.
Fisher, 572 Pa. 105, 813 A.2d 761, 768 (2002) (rejecting defense contention that the prosecutor
improperly vouched for the credibility of prosecution witnesses since "[t)he prosecutor was
reviewing the testimony of several prosecution witnesses after [defense] counsel had attacked
their testimony, in an effort to counter the argument of defense counsel"). The Pennsylvania
Supreme Court opined, "[a statement] cannot be characterized as prosecutorial misconduct
unless their effect was to prejudice the jury, forming in their minds fixed bias and hostility
toward the defendant so they could not weigh the evidence objectively and render a
Comm. v. Ary Sloane
true verdict." Commonwealth v. Chmiel, 585 Pa. 547, 621, 889 A.2d 501, 545
(2005) (Emphasis added).
Here, Defendant's assertion that the Deputy Attorney General's argument was reversible error
does not align with the facts. During his closing argument, the Senior Deputy Attorney General
stated, "Let me ask you something. Did Angelee Rivera want to be here today? Did Barbara Dolt
want to testify against her former colleague? Neither one of these individuals, or any of the
Commonwealth's witnesses have any bone to pick with Ary Sloane. Their credibility, I argue to
you, is unassailable. They have no reason to tell you anything but the absolute
100% truth." (N.T. 03/01/16 at 53). The Senior Deputy Attorney General's statements were not,
on their face, personal assurances. Rather, in support of their credibility, he cited their reluctance
to testify and tack of motivation to lie. Since the Senior Deputy Attorney General never
expressed a personal belief, his statements are not misconduct. Assuming, arguendo, that the
statements were deemed misconduct, they would not be so prejudicial as to obstruct fairness
within the judicial process. Defendant's claim does not pass muster.
Defendant's next claim that the evidence elicited was insufficient to support her conviction
fails. A "Public record" is defined as a record, including a financial record, of a Commonwealth
or local agency that:
(1) is not exempt under section 708;
(2) is not exempt from being disclosed under any other Federal or State law or regulation or
judicial order or decree; or
(3) is not protected by a privilege.
A "Record" is defined as information, regardless of physical form or characteristics, that
documents a transaction or activity of an agency and that is created, received, or retained
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Comm. v. Ary Sloane
pursuant to law or relating to a transaction, business, or activity of the agency. The term includes
a document, paper, letter, map, book, tape, photograph, film or sound recording, information
stored or maintained electronically and a data -processed or image -processed document. 65 P.S. §
67.102.
A person is guilty of conspiracy with another person or persons to commit a crime if, with the
intent of promoting or facilitating its commission, he or she:
(1) agrees with such other person or persons that they or one or more of them will engage in
conduct which constitutes such crime or an attempt or solicitation to commit such crime; or
(2) agrees to aid such other person or persons in the planning or commission of such crime or of
an attempt or solicitation to commit such crime,
(e) Overt act. --No person may be convicted of conspiracy to commit a crime unless an overt act
in pursuance of such conspiracy is alleged and proved to have been done by him or by a person
with whom he conspired.
(0 Renunciation. --ft is a defense that the actor, after conspiring to commit a crime, thwarted the
success of the conspiracy, under circumstances manifesting a complete and voluntary
renunciation of his criminal intent.
(g) Duration of conspiracy. --For purposes of 42 Pa.C.S. § 5552(d) (relating to commission of
offense):
(1) conspiracy is a continuing course of conduct which terminates when the crime or crimes
which are its object are committed or the agreement that they be committed is abandoned by the
defendant and by those with whom he conspired;
Comm. v. Ary Sloane
(2) such abandonment is presumed if neither the defendant nor anyone with whom he conspired
does any overt act in pursuance of the conspiracy during the applicable period of limitation; and
(3) if an individual abandons the agreement, the conspiracy is terminated as to him only if and
when he advises those with whom he conspired of his abandonment or he informs the law
enforcement authorities of the existence of the conspiracy and of his participation therein.
18 Pa.C.S.A. § 903.
Conspiracy to commit a crime and the underlying crime itself are two (2) entirely separate
offenses with separate elements required for each. In Johnson, the Pennsylvania Superior Court
opined, "The mere fact that defendant was acquitted of the underlying crime was irrelevant to his
guilt on [the] conspiracy charge." Commonwealth v. Johnson, 719 A.2d 778 (Pa. Super. Ct.
1998).
Instantly, Defendant proffers that the absence of testimony as to her committing a specific
crime equates to insufficient evidence. This argument contradicts the record and the governing
jurisprudence. The record shows that witnesses Dolt and Rivera indicated that Defendant
tampered with records repeatedly over an extended period of time. The PSSA test materials
distributed to Cayuga Elementary under Defendant's administration were records because the
Commonwealth and the United States Department of Education use the information contained
therein to gauge and track students' educational development. Given that education is the focus
of the aforementioned agencies, it is logical that the test materials would be directly related to
their function. By removing these "records" from the box prior to test administration, giving
them to Ms. Dolt, and directing her to copy the materials, Defendant tampered with the records.
Additionally, during a PSSA testing session, by inciting Ms. Rivera's students to change the
answers they recorded in the materials, Defendant tampered with the records again. Defendant
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Comm, v. Ary Sloane
offers no evidence to make the law enunciated in Johnson inapplicable. Nor does Defendant
proffer that she renounced the conspiracy at any point, Therefore, Defendant's argument is
meritless.
BY THE COURT:
HONORABLE TIMIKA R. LANE
Comm. v. Ary Sloane