Com. v. Daly, L. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
LAUREN PATRICIA DALY, :
:
Appellant : No. 2029 EDA 2015
Appeal from the Judgment of Sentence September 8, 2014
in the Court of Common Pleas of Delaware County,
Criminal Division, No(s): CP-23-CR-0003801-2013
BEFORE: BENDER, P.J.E., DUBOW and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED NOVEMBER 03, 2016
Lauren Patricia Daly (“Daly”) appeals from the judgment of sentence
entered following her conviction of two counts each of aggravated assault
and recklessly endangering another person, and one count each of criminal
attempt (homicide), endangering the welfare of children, possession of an
instrument of crime (“PIC”) and criminal contempt.1 We affirm.
In its Opinion, the trial court provided a comprehensive summary of
the history underlying the instant appeal, which we adopt as though fully
restated herein. See Trial Court Opinion, 10/9/15, at 1-10.
Briefly, Daly, a pediatrician in Wilmington, Delaware, became
romantically involved with the victim, Margaret Grover (“Grover”), in 1999.
They resided together and had two children through artificial insemination.
1
See 18 Pa.C.S.A. §§ 2702, 2705, 901, 4304, 907, 4132.
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Grover gave birth to E., whom Daly subsequently adopted. Daly gave birth
to M., whom Grover subsequently adopted.
The relationship devolved into violence, leading to the couple’s
separation in 2011. Pursuant to a custody Order, each parent would have
time with the other’s natural child. Ultimately, on May 27, 2013, Grover
drove with M. and E. to Daly’s house, to return M. from a visit. During the
drop off, Daly emerged from her residence and stood in front of Grover’s car
pointing a gun. Daly then shot Grover three times, with bullets striking
Grover’s face, chest and abdomen. E., who was sitting in the front
passenger seat, was unharmed. After firing three shots, the gun jammed.
A jury convicted Daly of the above-described charges, after which the
trial court sentenced Daly to an aggregate prison term of 271-624 months.
Daly filed a post-sentence Motion, which the trial court subsequently denied.
Thereafter, Daly filed the instant timely appeal.
In this appeal, Daly presents the following claims for our review:
I. Whether the trial court erred in its pretrial finding that [Daly]
was guilty of criminal contempt, and further erred in advising the
jury that [Daly] was guilty of criminal contempt and charged the
jury that they could consider [Daly’s] acts which led to the
contempt finding as consciousness of her guilt of the crimes for
which she was charged?
II. Whether the trial court erred in permitting the spoliation of
key physical evidence, specifically[,] the automobile driven by
[Grover]?
III. Whether the trial court erred in denying [Daly’s] request to
cross[-]examine witnesses and introduce evidence of [E.’s]
misconduct to rebut the prosecution[’]s argument that [Daly’s] ill
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will toward her son was a motive to her actions and in support of
her claim of legitimate concern for [E.’s] anti-social and
potentially violent behaviors?
IV. Whether the trial court erred in accepting the
Commonwealth’s argument that an exchange of letters between
the respective domestic relations counsel for [Daly] and her
spouse constituted a court order, or enforceable agreement[?]
V. Whether the trial court erred in imposing consecutive
sentences for offenses that arose out of a single transaction,
thereby imposing a manifestly excessive sentence—which
constituted a de facto life sentence—for a first[-]time offender
involved in a non-fatal criminal encounter?
Brief of Appellant at 6-7 (some capitalization omitted).
Daly first argues that the trial court improperly (a) found that Daly was
guilty of criminal contempt based upon her failure to comply with the trial
court’s Order to provide a writing sample, (b) informed the jury that Daly
was guilty of criminal contempt, and (c) charged the jury that it could
consider the acts underlying Daly’s criminal contempt as consciousness of
her guilt as to the crimes charged. Id. at 15, 18. Daly acknowledges that
at her formal arraignment, her attorney from the preliminary hearing was
present, but notified the court that Daly was consulting with other counsel.
Id. at 15. Daly states that immediately following the July 2, 2013
arraignment, while she was not represented by counsel, the Commonwealth
filed a Motion to Compel her to give a handwriting exemplar. Id. at 16.
According to Daly, the trial court told Daly that it would either appoint
counsel or have the public defender’s office represent her. Id.
Nevertheless, Daly asserts, the trial court granted the Commonwealth’s
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Motion to Compel, ordered her to provide a handwriting exemplar by July 9,
2013, and threatened that if she failed to do so, the jury would be informed
of her non-compliance. Id. Daly contends that notwithstanding her lack of
counsel, she was improperly brought back to court, found guilty of criminal
contempt, and sentenced to pay $5,000/day fine for each day that she failed
to give an exemplar. Id. at 17. Daly points out that upon retaining private
counsel, she did provide the exemplar.2 Id. at 18. Daly also claims that the
trial court erred by incorporating her contempt fine into her judgment of
sentence. Id.
The Pennsylvania Supreme Court has long upheld a court’s power to
maintain courtroom authority “by the imposition of summary punishment for
contempt in appropriate cases.” Commonwealth v. Moody, 125 A.3d 1, 8
(Pa. 2015). Use of the court’s summary contempt power is reviewed under
an abuse of discretion standard: “[I]n considering an appeal from a
contempt order, we place great reliance on the discretion of the trial judge.
Each court is the exclusive judge of contempts against its process, and on
appeal its actions will be reversed only when a plain abuse of discretion
occurs.” Commonwealth v. Williams, 753 A.2d 856, 861 (Pa. Super.
2000) (citations omitted).
To establish a claim of indirect criminal contempt, the Commonwealth
must prove the following four elements:
2
Attorney Michael J. Malloy, Esquire (“Attorney Malloy”), formally entered
his appearance on July 22, 2013.
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(1) the order [in question] must be definite, clear, specific and
leave no doubt or uncertainty in the mind of the person to whom
it was addressed of the conduct prohibited; (2) the contemnor
must have had notice of the specific order or decree; (3) the act
constituting the violation must have been volitional; and (4) the
contemnor must have acted with wrongful intent.
Commonwealth v. Ashton, 824 A.2d 1198, 1203 (Pa. Super. 2003)
(citation omitted).
Initially, we address Daly’s argument that the trial court gave her until
July 9, 2013, to provide the handwriting exemplar. See Brief of Appellant at
17. Our review of the record discloses that during the morning of July 2,
2013, the trial court initially ordered Daly to provide a handwriting exemplar
by July 9, 2013. N.T., 7/2/13, at 32-33. Later that same day, when
informed of Daly’s continued refusal to provide an exemplar, the trial court
judge told Daly that “I’m going to find you in contempt of [c]ourt if you
refuse today to give the handwriting sample. And I’m going to fine you
$5,000 a day for every day that you withhold the sample.” Id. at 39. Thus,
Daly’s assertion that the court gave her until July 9, 2013 to provide an
exemplar is in error.
In its Opinion, the trial court addressed Daly’s remaining contentions
as to the criminal contempt conviction, and concluded that they lack merit.
Trial Court Opinion, 10/9/15, at 10-16. We agree with the reasoning of the
trial court, as set forth in its Opinion, and affirm on this basis. See id.
Daly next claims that the trial court improperly permitted the
“spoliation of key physical evidence, specifically, the automobile driven by
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the victims.” Brief of Appellant at 26. Daly argues that “prior to [her]
having had an opportunity to obtain her own forensic expert[s], the trial
court—acting upon a request by the Commonwealth—allowed the vehicle to
be released back to [] Grover, who in turn had the vehicle completely
repaired.” Id. Daly contends that no effort was made to preserve the
windshield or other damaged parts for examination or testing by her or her
experts. Id. at 26-27. Daly acknowledges that the doctrine of spoliation is
most often used during civil litigation, but argues for its application in this
criminal case.3 Id. at 27. According to Daly, the failure to preserve the
evidence allowed the Commonwealth to present “a virtually unchallengeable
theory to the jury.” Id. at 28. In particular, Daly points out the
Commonwealth’s theory that she had leaned on the hood of the vehicle
while shooting, leaving a “void” on the hood of the vehicle. Id. Daly asserts
that this negated her claim that she was a few feet in front of the vehicle
when she fired the weapon. Id. Further, Daly argues, the repairs on the
vehicle allowed the Commonwealth to challenge her expert’s testimony on
the grounds that his tests were performed after the repair of the vehicle.
Id. at 29.
3
The spoliation doctrine is broadly applicable to cases where “relevant
evidence” has been lost or destroyed. Mount Olivet Tabernacle v. Edwin
L. Wiegand Div., Emerson Elec. Co., 781 A.2d 1263, 1269 (Pa. Super.
2001). Evidence that a party lost or destroyed permits an inference, the
“spoliation inference,” that the destroyed evidence would have been
unfavorable to the offending party. Id.-6-
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Initially, we observe that Daly’s claim regarding the applicability of the
spoliation doctrine was not raised in her Pa.R.A.P. 1925(b) Concise
Statement. Rather, Daly presented the following claim of error:
That the trial court erred in ruling that [Daly] had two (2) weeks
from the date of the arraignment to obtain and retain an
appropriate expert for the inspection of the victim’s vehicle
before said vehicle would be released, repaired and be
unavailable for [Daly’s] review. The court’s ruling was further
evidence of its immediate bias and prejudice towards [Daly] to
such an extent and not to be able to be fair and impartial in
further proceedings.
Concise Statement at ¶ 7. Thus, Daly challenged the length of the time
period during which she could examine the vehicle, and claimed that the trial
court was biased. See id. To the extent that Daly now argues the
applicability of the doctrine of spoliation of evidence in this criminal case, the
claim is waived.4 See Commonwealth v. Castillo, 888 A.2d 775, 780 (Pa.
2005) (stating that “[a]ny issues not raised in a Pa.R.A.P. 1925(b)
statement will be waived.”); accord Commonwealth v. Hairston, 84 A.3d
657, 672 (Pa. 2014).
To the extent that Daly challenges the length of the time period within
which she could retain an expert to examine the vehicle, upon our review of
the record, we affirm the trial court’s conclusion that the claim lacks merit,
4
In the criminal context, a sanction to discourage spoliation already exists.
Crimes Code Section 4910 provides criminal sanctions for a party who
tampers with or fabricates physical evidence. 18 Pa.C.S.A. § 4910.
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for the reasons stated in the trial court’s Opinion. See Trial Court Opinion,
10/9/15, at 33-34.
In her third claim of error, Daly argues that the trial court improperly
denied her request “to cross[-]examine witnesses and introduce evidence of
[E.’s] misconduct in support of her claim of legitimate concern for [E.’s] anti-
social and potentially violent behaviors[.]” Brief of Appellant at 31. Daly
asserts that she sought to introduce an online “blog,” authored by E., and
recordings of telephone calls received from E.’s school. Id. at 32. Daly
contends that this evidence would have rebutted the Commonwealth’s
evidence that she hated her son. Id. According to Daly, the trial court ruled
that the online blog was inadmissible without having ever read the blog, and
did not allow it or evidence regarding E.’s behavior into evidence. Id. at 36.
Daly claims that the evidence was relevant and would demonstrate to the
jury that she was justified in her concern about E.’s behavior and that her
insistence on talking to officials at E.’s school was “well founded.” Id. at 42-
43, 46.
The following standard governs our review of the admissibility of
evidence:
Admission of evidence is within the sound discretion of the trial
court and will be reversed only upon a showing that the trial
court clearly abused its discretion. Admissibility depends on
relevance and probative value. Evidence is 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.
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Judicial discretion requires action in conformity with law,
upon facts and circumstances judicially before the court, after
hearing and due consideration. An abuse of discretion is not
merely an error of judgment, but if in reaching a conclusion the
law is overridden or misapplied or the judgment exercised is
manifestly unreasonable, or the result of partiality, prejudice,
bias, or ill will, as shown by the evidence or the record,
discretion is abused.
Commonwealth v. Borovichka, 18 A.3d 1242, 1253 (Pa. Super. 2011)
(quoting Commonwealth v. Levanduski, 907 A.2d 3, 13-14 (Pa. Super.
2006) (en banc) (internal citations omitted)).
In its Opinion, the trial court addressed this claim and concluded that
it lacks merit. See Trial Court Opinion, 10/9/15, at 28-30. After carefully
reviewing the record, we agree with and affirm on the basis of the trial
court’s Opinion with regard to this claim. See id.In her fourth claim, Daly argues that the trial court improperly
accepted “the Commonwealth’s argument that an exchange of letters
between the respective domestic relations counsel for [Daly] and [Grover]
constituted a Court Order, or enforceable agreement.” Brief of Appellant at
55. Daly contends that the exchange of letters was, at best, an exchange of
competing proposals, in preparation of the domestic relations court entering
such an order. Id. at 59. According to Daly, the letters do not constitute a
parenting plan under the Domestic Relations Act, see id. at 58 (citing 23
Pa.C.S.A. § 5331(b)(1), (5)), or a court order. Brief of Appellant at 58.
Therefore, Daly argues, “it was completely erroneous, and extremely
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prejudicial for the Commonwealth and the trial court to represent to the jury
that [Daly] had violated a [c]ourt [o]rder or agreement[,] when she
presented herself outside of her residence to receive her child.” Id. at 59.
Upon our review of the parties’ briefs and the certified record, we
conclude that the trial court addressed this claim and correctly determined
that it lacks merit. See Trial Court Opinion, 10/9/15, at 20-24. We agree
with the sound reasoning of the trial court, as set forth in its Opinion, and
affirm on this basis with regard to Daly’s fourth claim. See id.
In her fifth claim, Daly asserts that the trial court improperly imposed
consecutive sentences “for offenses that arose out of a single transaction,
thereby imposing a manifestly excessive sentence—which constituted a de
facto life sentence—for a first[-]time offender involved in a non-fatal criminal
encounter.” Brief of Appellant at 61. Daly’s claim implicates the
discretionary aspects of her sentence.
“A challenge to the discretionary aspects of a sentence must be
considered a petition for permission to appeal, as the right to pursue such a
claim is not absolute.” Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa.
Super. 2004) (citation omitted). In order to invoke this Court’s jurisdiction
to address such a challenge, the appellant must satisfy the following four-
part test: the appellant must (1) file a timely notice of appeal pursuant to
Pa.R.A.P. 902, 903; (2) preserve the issues at sentencing or in a timely
post-sentence motion pursuant to Pa.R.Crim.P. 720; (3) ensure that the
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appellant’s brief does not have a fatal defect as set forth in Pa.R.A.P.
2119(f); and (4) set forth a substantial question that the sentence appealed
from is not appropriate under 42 Pa.C.S.A. § 9781(b). McAfee, 849 A.2d at
274.
Here, Daly timely filed a Notice of Appeal, and raised her claim in a
timely-filed post-sentence Motion. Daly also has included in her brief a
Statement of reasons relied upon for allowance of appeal, in accordance with
Pa.R.A.P. 2119(f). Accordingly, we will review Daly’s Rule 2119(f)
Statement to determine whether she has raised a substantial question.
“The determination of what constitutes a substantial question must be
evaluated on a case-by-case basis.” Commonwealth v. Edwards, 71 A.3d
323, 330 (Pa. Super. 2013) (citations omitted). “A substantial question
exists only when the appellant advances a colorable argument that the
sentencing judge’s actions were either: (1) inconsistent with a specific
provision of the Sentencing Code; or (2) contrary to the fundamental norms
which underlie the sentencing process.” Id. (citations omitted).
Here, Daly’s appellate brief contains the requisite Rule 2119(f)
Statement. In that Statement, Daly presents the following reason upon
which she relies for allowance of appeal:
The law is well settled that the decision to run sentences
consecutively is not a basis upon which to grant discretionary
review of a sentence. However, when such a decision results in
a clearly excessive sentence, such sentence is reviewable.
Brief of Appellant at 14.
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This Court has recognized that
[a] defendant may raise a substantial question where he
receives consecutive sentences within the guideline ranges[,] if
the case involves circumstances where the application of the
guidelines would be clearly unreasonable, resulting in an
excessive sentence; however, a bald claim of excessiveness due
to the consecutive nature of a sentence will not raise a
substantial question.
Diehl, 140 A.3d at 45 (quoting Commonwealth v. Dodge, 77 A.3d 1263,
1270 (Pa. Super. 2013)). The extreme sentence in this case, in essence a
life sentence, raises a substantial question.
“An abuse of discretion may not be found merely because an appellate
court might have reached a different conclusion, but requires a result of
manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or such
lack of support so as to be clearly erroneous.” Commonwealth v. Walls,
926 A.2d 957, 961 (Pa. 2007). “Where the sentencing court imposes a
sentence within the guideline range, we must review to determine whether
the trial court’s sentence is ‘clearly unreasonable.’” Commonwealth v.
Dodge, 957 A.2d 1198, 1200 (Pa. Super. 2008) (citing 42 Pa.C.S.A. §
9781(c)(2)).
At sentencing, the trial court stated its reasons for imposing
consecutive sentences. See N.T., 9/9/14, at 115-18 (wherein the trial court
based its sentence upon its belief, inter alia, that Daly (1) was an extremely
dangerous person capable of doing “what she set out to do[,]” which was to
kill [Grover]; (2) still did not understand the legal and moral implications of
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what she had done; and (3) Daly showed no remorse for her actions). In its
Opinion, the trial court additionally explained that had the gun not jammed,
“this would have been a murder case, not a trial for attempted homicide.”
Trial Court Opinion, 7/9/15, at 37. Further, the trial court stated that it
“credits [the Grover’s] fears for her life should Daly be released. Given
Daly’s refusal to admit her homicidal intent, even to herself, a total sentence
of many years behind bars is well suited to her personal characteristics and
potential for rehabilitation.” Id.
Upon our review of the record, we cannot conclude that the trial
court’s sentence was the result of “manifest unreasonableness, or partiality,
prejudice, bias, or ill-will, or such lack of support so as to be clearly
erroneous.” See Walls, 926 A.2d at 961. Accordingly, we cannot grant
Daly relief on this claim.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/3/2016
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