Com. v. Comerosky, L. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
LYNDAMARIE K. COMEROSKY
Appellant No. 1233 MDA 2018
Appeal from the Judgment of Sentence Entered March 9, 2018
In the Court of Common Pleas of Luzerne County
Criminal Division at No: CP-40-CR-0000723-2016
BEFORE: BOWES, OLSON, and STABILE, JJ.
MEMORANDUM BY STABILE, J.: FILED SEPTEMBER 24, 2019
Appellant, Lyndamarie K. Comerosky, appeals from the March 9, 2018
judgment of sentence imposing six months of incarceration followed by 36
months of house arrest for endangering the welfare of a child (“EWOC”)1 and
12 months of probation, concurrent with house arrest, for recklessly
endangering another person2 (“REAP”). We affirm.
On December 30, 2015, fire fighters responded to a fire at the home of
Appellant, her husband George Comerosky (“Husband”), and the victim, their
11-year-old daughter. Firefighters extinguished the fire quickly, limiting the
damage to the kitchen. Nobody was injured. Law enforcement determined
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1 18 Pa.C.S.A. § 4304.
2 18 Pa.C.S.A. § 2705.
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that the fire was accidental, caused by combustible material sitting on the
kitchen stovetop. Police charged Appellant with the aforementioned offenses
based on the deplorable conditions observed in Appellant’s home during the
investigation. The house was littered with animal feces throughout the house,
uneaten food, dirty dishes, dirty clothes, and garbage. N.T. Trial, 1/23-24/18,
at 117-143. The home’s smoke detectors had been removed. Id. at 125-26.
A putrid smell pervaded the house. Id. at 143. Firefighters had to crawl over
piles of debris to enter the home and get to the fire. Id. at 24-25.
At the conclusion of trial, a jury found Appellant guilty of the
aforementioned charges. The trial court imposed sentence on March 9, 2018.
Appellant filed a timely post-sentence motion seeking a new trial, and the trial
court denied relief on July 9, 2018. This timely appeal followed. Appellant
raises four issues for our consideration:
1. Whether the evidence was sufficient to prove guilt beyond a
reasonable doubt?
2. Whether the court erred by denying [Appellant’s] pre-trial
motion to preclude the testimony of Trooper Ronald Jarocha as
any probative value was outweighed by unfair prejudice?
a. Whether the court erred by allowing Trooper Ronald
Jarocha to testify and/or rely on statements made by
George Comerosky as such statements were made by a
deceased individual—who when alive had 5th Amendment
issues—not available for cross examination and therefore
such action violated [Appellant’s] Due Process rights and
right to confrontation guaranteed by both the
Pennsylvania and United States Constitution?
3. Did the court err by not allowing [Appellant] to call Patricia
Bigus, an investigator for Children and Youth, as a witness?
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4. Was the verdict against the weight of the evidence insofar as
there was ample evidence that the child’s welfare was not
endangered?
Appellant’s Brief at 10-11.
As to the sufficiency of the evidence, Appellant claims that the conditions
of the home did not support criminal liability under the EWOC and REAP
statutes. We are constrained to agree with the trial court’s conclusion that
Appellant has waived this. In her Pa.R.A.P. 1925(b) statement, Appellant
claimed, without further specification, that “the evidence was insufficient to
prove her guilt beyond a reasonable doubt[.]” Appellant’s Pa.R.A.P. 1925(b)
Statement, 8/14/18, at 1. Appellant did not state whether she was
challenging the EWOC or REAP conviction, or both, and she did not identify
any element of either offense that the Commonwealth failed to prove. This
failure results in waiver. Commonwealth v. Roche, 153 A.3d 1063, 1071
(Pa. Super. 2017), appeal denied, 169 A.3d 599 (Pa. 2017).
Next, Appellant challenges the trial court’s denial of Appellant’s pre-trial
motion to limit the testimony of Trooper Jarocha. The Commonwealth
presented Jarocha as an expert on the cause of the fire. Appellant’s argument
is twofold. First, she argues that Trooper Jarocha testified to many facts that
were not pertinent to his expert opinion and that his status as an expert
improperly bolstered his credibility as to those facts. Second, Appellant
argues that Trooper Jarocha should not have been permitted to recount a
conversation he had with Husband during his investigation. According to
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Trooper Jarocha’s testimony, Husband stated that he believed he bumped a
burner nob on the kitchen oven while combustible material was sitting on top
of the burners. Husband was facing criminal charges for the condition of the
home but passed away prior to trial. Appellant argues that admission of his
statements was akin to admission of hearsay from a non-testifying co-
defendant.
Admission of evidence rests within the sound discretion of the trial court,
and we will reverse the trial court’s decision only for an abuse of that
discretion. Commonwealth v. Sherwood, 982 A.2d 483, 495 (Pa. 2009),
cert. denied, 559 U.S. 1111 (2010). “An expert may base an opinion on
facts or data in the case that the expert has been made aware of or personally
observed.” Pa.R.E. 703. “If experts in the particular field would reasonably
rely on those kinds of facts or data in forming an opinion on the subject, they
need not be admissible for the opinion to be admitted.” Id. Rule 705 of the
Pennsylvania Rules of Evidence requires an expert witness “to state the facts
or data on which the expert opinion is based.” Pa.R.E. 705.
Trooper Jarocha testified that he examined and photographed every
room in the house as part of his investigation of the fire’s origin. N.T. Trial,
1/23-24/18, at 78-79. Trooper Jarocha’s photographs were admitted into
evidence without objection from the defense. Id. at 80-81. In describing his
photographs of each room, Trooper Jarocha identified large amounts of debris,
such as trash, clothing, garbage, and dog and cat feces. Id. at 87-93.
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In summary, Trooper Jarocha testified that an investigation into the
cause of a fire includes a thorough examination of the entire structure in which
the fire occurred. Appellant offers no evidence or argument to establish that
experts in the field of fire investigations cannot or do not reasonably rely upon
a thorough examination of the burned structure in forming a conclusion as to
the fire’s origin. In this sense, Trooper Jarocha’s testimony complies with the
letter of Rules 703 and 705.
Appellant, however, argues that Trooper Jarocha’s testimony as to the
putrid conditions throughout the house was unnecessary inasmuch as the fire
occurred in the kitchen and much of the fire damage was confined to the
kitchen. To this end, Appellant cites Commonwealth v. Montavo, 653 A.2d
700, 705 (Pa. Super. 1995), appeal denied, 663 A.2d 689 (Pa. 1995), for
the well-settled proposition that expert opinion testimony is proper for matters
beyond the knowledge, information, or skill of an ordinary juror. And, while
a witness can offer both lay and expert opinion, see Commonwealth v.
Yocolano, 169 A.3d 47, 62 (Pa. Super. 2017), Appellant notes that, in such
a case, the trial court must instruct the jury as to the difference between the
two. The trial court gave no such instruction here.
We acknowledge that a large portion of Trooper Jarocha’s testimony
described the condition of parts of rooms that obviously had no fire damage,
but we disagree with Appellant’s contention that Trooper Jarocha offered
opinion testimony as to the condition of the home. The only opinion Trooper
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Jarocha offered was his opinion as to the origin of the fire. His description of
each room, as he observed it during his investigation, and as depicted in his
photographs, was factual testimony. He never opined that the house was
dangerously unsanitary, nor did he offer any other opinion testimony outside
the scope of his expert qualifications. The photographs were admitted into
evidence and published to the jury without objection from Appellant, and they
speak for themselves. Furthermore, the Commonwealth produced several
other witnesses who testified as to the condition of Appellant’s home. We
discern no abuse of discretion in the trial court’s admission of Trooper
Jarocha’s factual observations of the condition of Appellant’s home.
Next, we consider the admission of Husband’s statement to Trooper
Jarocha. Appellant argues that admission of Husband’s statement through
Trooper Jarocha was akin to admitting hearsay from a non-testifying co-
defendant. Appellant argues that admission of Husband’s statement violated
her Sixth Amendment right to confront the witnesses against her, as set forth
in Bruton v. United States, 391 U.S. 123 (1968). In Bruton, the
prosecution introduced a witness who testified that defendant confessed to
committing the crime with the help of codefendant. Id. at 124. The trial
judge admitted the testimony and instructed the jury that it was admissible
against defendant but not codefendant. Id. at 125. The United States
Supreme Court held that, “because of the substantial risk that the jury,
despite instructions to the contrary, looked to the incriminating extrajudicial
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statements in determining petitioner’s guilt, admission of [the confession] in
this joint trial violated petitioner’s right of cross-examination[….]” Id. at 126.
In its brief, the Solicitor General’s office conceded that a new trial was
appropriate, and that, other than defendant’s confession, the evidence against
codefendant was not strong. Id. at 125.
Bruton plainly has no direct application because this was not a joint
trial, and Husband’s statement was not, strictly speaking, a confession. He
did not reference any of Appellant’s conduct. Moreover Appellant’s brief does
not explain how Husband’s statement amounted to a confession to either
EWOC or REAP, or any element thereof. The record reflects that the criminal
complaint referenced the fire hazard only in connection to REAP,3 which the
Pennsylvania Crimes Code defines as follows: “A person commits a
misdemeanor of the second degree if he recklessly engages in conduct which
places or may place another person in danger of death or serious bodily
injury.” 18 Pa.C.S.A. § 2705.
The record reflects that Trooper Jarocha identified the source of the fire
before he spoke with Husband:
At this point, I had begun removing the debris from the
stove. At first, my first observation of removing it, I take it off by
layers so I carefully take off the items on the range. At first, the
first layer is what I normally typically expect to see in a kitchen
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3 At the pre-trial hearing, Appellant argued for exclusion of Trooper Jarocha’s
testimony as irrelevant to either crime as charged. N.T. Motion, 6/18/17, at
2-4. The Commonwealth countered that the REAP charge referenced the
combustible debris on the stovetop. Id. at 4-5.
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fire. You have food and cans of stuff that were up in the cabinet.
People keep stuff in the cabinet above it. As the fire progress [sic]
from that point, the cabinet fails and the products fall out. At first
it was very—what I would expect to see.
[…]
As I removed that layer, I became—I came down to the next
layer which consisted of, like, magazines, stuff that—mail,
envelopes, stuff you would receive in the mail. That was placed
on top of the stove prior to the fire.
N.T. Trial, 1/23-24/18, at 96.
After making these observations, Trooper Jarocha spoke with Husband:
“And when I spoke to him, I asked him is it common for him to have that—
have these materials, combustible materials on top of the range. He said yes,
it is. He says we don’t normally use our stove.” N.T. Trial, 1/23-24/18, at
97-98. Also, Husband told Trooper Jarocha that he may have moved the
burner knob when he “squeezed in between the refrigerator and the stove.”
Id. at 99.
Thus, we are not faced here with the highly incriminating confession of
a non-testifying codefendant, as was the case in Bruton. Instead, we have a
fire investigation in which the investigator found a burner knob in the “light”
position and combustible debris on top of a stove. Husband’s statement
largely confirmed facts already known to Trooper Jarocha, and to which
Trooper Jarocha could testify with or without Husband’s statement. There are
two facts, however, that Husband seemingly added. First, Husband believed
he bumped the burner knob, and second, Husband admitted it was common
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to store combustible items on the stovetop because the couple did not use it
for cooking. Appellant does not offer a coherent argument for why the trial
court should have excluded either, and we could reject her argument on that
basis alone. Even if we assume that the couple’s habit of storing combustible
items on the stovetop, combined with the possibility of bumping a burner knob
while traversing a cramped and cluttered kitchen, were incriminating facts,
any error in their admission was harmless.
An error is harmless if it could not have contributed to the
verdict. In other words, an error cannot be harmless if there is a
reasonable possibility the error might have contributed to the
conviction. We have found harmless error where:
(1) the error did not prejudice the defendant or the
prejudice was de minimis;
(2) the erroneously admitted evidence was merely
cumulative of other untainted evidence which was substantially
similar to the erroneously admitted evidence; or
(3) the properly admitted and uncontradicted evidence of
guilt was so overwhelming and the prejudicial effect of the error
was so insignificant by comparison that the error could not have
contributed to the verdict.
The Commonwealth has the burden of proving harmless
error beyond a reasonable doubt.
Commonwealth v. Wright, 961 A.2d 119, 143 (Pa. 2008).
Instantly, Husband’s testimony was merely cumulative of other identical
evidence. Specifically, Trooper Jarocha testified to his personal observation
of combustible debris on top of the stove, where he believed the fire started.
He also testified to his observation of the burner in the light position. Trooper
Jarocha took a photograph depicting charred combustible debris on the
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stovetop, and the Commonwealth moved that photograph into evidence
without objection from the defense. The cramped and cluttered condition of
the kitchen was well attested even without Husband’s statement. Any error
in permitting Trooper Jarocha to recount Husband’s statement was harmless
beyond a reasonable doubt.
Next, Appellant argues that the trial court erred in refusing to permit
Patricia Bigus, a Children and Youth Services (“CYS”) investigator, to testify
on her behalf. Appellant sought to introduce Bigus because Commonwealth
witness Sergeant Scott Davis testified that he called Children and Youth
Services. N.T. Trial, 1/23-24/18, at 151. Bigus would have testified that she
investigated and found the claim against Appellant unfounded and did not
remove Appellant’s daughter from the home.4 The trial court deemed Bigus’
testimony irrelevant because she never visited the house where the fire
occurred. Rather, Bigus visited Appellant’s family after they had been
relocated to a new apartment. Id. at 167-70.
As noted above, admission of evidence rests within the sound discretion
of the trial court. Sherwood, 982 A.2d at 495. “Evidence is relevant if (a) it
has any tendency to make a fact more or less probable than it would be
without the evidence; and (b) the fact is of consequence in determining the
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4 We observe that the trial court permitted Appellant to offer the testimony
of her daughter’s pediatrician, who testified that she had no health problems
in the months leading up to the fire, and the daughter’s school principal, who
testified that she did well in school. N.T. Trial, 1/23-24/18, at 173-183.
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action.” Pa.R.E. 401. In her brief, Appellant claims that Bigus’ testimony was
necessary to “refute inflammatory claims made by Commonwealth witness
[Sergeant Davis] regarding the involvement of CYS.” Appellant’s Brief at 51.
We find this argument unavailing because Sergeant Davis never mentioned
CYS until defense counsel brought it out on cross-examination. Appellant cites
pages 57a and 60a in support of her argument that Sergeant Davis testified
that the condition of the home prompted him to call CYS. Appellant’s Brief at
51. Pages 140 through 143 of the trial transcript, which appear on page 57a
of the reproduced record and contain some of the prosecutor’s direct
examination of Sergeant Davis, contain no reference to CYS. N.T. Trial, 1/23-
24/18, at 140-43. Sergeant Davis referenced CYS on two occasions in
response to questions from defense counsel. Id. at 151, 154. On the first
occasion, Appellant did not object to Sergeant Davis’ answer as
nonresponsive. Id. at 151. On the second occasion, defense counsel’s
question directly referenced CYS. Id. at 154. Appellant’s complaint of
Sergeant Davis’ “inflammatory claims” is not well taken, inasmuch as defense
counsel elicited those claims.
Additionally, Appellant does not dispute the fact that Bigus never visited
the home where the fire occurred. She investigated after the family had been
relocated to a new apartment and found no cause to remove Appellant’s
daughter from the home. The instant charges stem entirely from the condition
of Appellant’s home prior to her relocation. Appellant has failed to explain
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how Bigus’ testimony would have made any fact of consequence more or less
probable. We discern no abuse of discretion in the trial court’s exclusion of
Bigus’ testimony as irrelevant.
Finally, Appellant argues that the EWOC verdict was against the weight
of the evidence.
A motion for a new trial based on a claim that the verdict is
against the weight of the evidence is addressed to the discretion
of the trial court. A new trial should not be granted because of a
mere conflict in the testimony or because the judge on the same
facts would have arrived at a different conclusion. Rather, the
role of the trial judge is to determine that notwithstanding all the
facts, certain facts are so clearly of greater weight that to ignore
them or to give them equal weight with all the facts is to deny
justice. It has often been stated that a new trial should be
awarded when the jury’s verdict is so contrary to the evidence as
to shock one’s sense of justice and the award of a new trial is
imperative so that right may be given another opportunity to
prevail.
An appellate court’s standard of review when presented with
a weight of the evidence claim is distinct from the standard of
review applied by the trial court:
Appellate review of a weight claim is a review of the exercise
of discretion, not of the underlying question of whether the verdict
is against the weight of the evidence. Because the trial judge has
had the opportunity to hear and see the evidence presented, an
appellate court will give the gravest consideration to the findings
and reasons advanced by the trial judge when reviewing a trial
court’s determination that the verdict is against the weight of the
evidence. One of the least assailable reasons for granting or
denying a new trial is the lower court’s conviction that the verdict
was or was not against the weight of the evidence and that a new
trial should be granted in the interest of justice.
Commonwealth v. Clay, 64 A.3d 1049, 1054–55 (Pa. 2013) (internal
citations and quotation marks omitted) (emphasis in original). “A motion for
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new trial on the grounds that the verdict is contrary to the weight of the
evidence, concedes that there is sufficient evidence to sustain the verdict.”
Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000).
EWOC occurs where “[a] parent, guardian or other person supervising
the welfare of a child under 18 years of age, or a person that employs or
supervises such a person, […] knowingly endangers the welfare of the child
by violating a duty of care, protection or support.” 18 Pa.C.S.A. § 4304(a)(1).
Appellant argues that the EWOC conviction cannot stand because there is no
evidence that Appellant knowingly endangered her child’s welfare. Appellant’s
Brief at 57. This argument fails because it is directed to the sufficiency, rather
than weight, of the evidence. A total lack of evidence as to the mens rea
element would have rendered the evidence insufficient, but a challenge to the
weight of the evidence concedes the sufficiency of the evidence, as our
Supreme Court wrote in Widmer.
Even if we construe this argument as one attacking the weight of the
evidence, we discern no abuse of discretion in the trial court’s decision not to
award a new trial. Appellant notes that she was not home when the fire
started, and that her daughter’s pediatrician and school principal reported no
risk factors for a troubled home life. Regardless, the pictures of Appellant’s
home, combined with a substantial body of supporting testimony, support a
finding that the home had been in poor condition for some time. That
Appellant happened not to be home when the fire occurred does not evidence
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her lack of knowledge of the home’s condition. The same can be said for the
testimony of the pediatrician and school principal. We conclude that the trial
court did not abuse its discretion in denying Appellant’s motion for a new trial.
Because we have found each of Appellant’s arguments to be lacking in
merit, we affirm the judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 09/24/2019
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