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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
February 15, 2012
THE PEOPLE, PLAINTIFF AND RESPONDENT,v.KEVIN HARPER, JR., DEFENDANT AND APPELLANT.
(Super. Ct. No. 08F08512)
P. v. Harper
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Kevin Harper, Jr., was convicted by jury of causing his infant son's death by assaulting the child with force likely to produce great bodily injury (Pen. Code, § 273ab, subd. (a))*fn1 and involuntary manslaughter (§ 192, subd. (b)). He was sentenced to an aggregate term of 25 years to life in state prison.
On appeal, defendant asserts: (1) the trial court erroneously denied his motion under Batson v. Kentucky (1986) 476 U.S. 79 [90 L.Ed.2d 69] and People v. Wheeler (1978) 22 Cal.3d 258 (Batson/Wheeler motion) because the prosecutor used peremptory challenges to remove three prospective jurors on the basis of race; (2) the trial court prejudicially erred by allowing expert testimony on shaken baby syndrome; (3) the trial court prejudicially erred by instructing the jury with CALCRIM No. 362 on consciousness of guilt; and (4) the trial court failed to properly exercise its discretion in sentencing defendant. Defendant's challenge to the expert testimony has been forfeited by his failure to object to this testimony below. His remaining contentions lack merit.*fn2 Accordingly, we affirm the judgment.
In accordance with the standard of review, we view the evidence in the light most favorable to the verdict and resolve all conflicts in its favor. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206; People v. Vu (2006) 143 Cal.App.4th 1009, 1013.)
In August 2008, defendant drove his infant son Jaden to Mercy San Juan Medical Center. The infant was in cardiac arrest when he arrived. After being resuscitated, he experienced a seizure and was treated with medication. Jaden was then transferred to the Pediatric Intensive Care Unit at UC Davis Children's Hospital. Upon his arrival, Jaden was in a deep coma, his breathing was agonal, his blood pressure was elevated, his anterior fontanelle (i.e., the soft spot at the back of an infant's head) was slightly bulging, and he was continuing to experience involuntary muscle movements from the seizure suffered at Mercy San Juan.
Dr. Robert Pretzlaff, Chief of Pediatric Critical Care Medicine, ordered a CT scan of Jaden's brain, which revealed "early swelling of the brain" often seen "after a variety of injuries, traffic accidents, a severe blow to the brain." The scan also revealed "a significant amount of bleeding around the brain, something called subdural hematoma, so there was blood over the top of the brain." The extent of the bleeding suggested a "shaking injury" as opposed to trauma caused by a localized impact. There was also evidence of petechial hemorrhages (i.e., small ruptured blood vessels) between the gray matter and white matter of the brain, caused by the shifting of these portions of the brain.
A second CT scan performed the following day revealed a greater amount of swelling and a more pronounced "loss of differentiation between the gray and white matter." This indicated to Dr. Pretzlaff that Jaden's injuries were sustained shortly before the infant was brought to Mercy San Juan. Dr. James Brandt, professor of ophthalmology at UC Davis, then examined Jaden's eyes and found "severe retinal hemorrhages in both eyes." These hemorrhages were "at all levels of the retina." Drs. Pretzlaff and Brandt concluded that Jaden's injuries were caused by "nonaccidental trauma" or "shaken baby syndrome."
Jaden died the following day. The autopsy, performed by Dr. Kathleen Enstice, revealed small bruises on Jaden's head, face, left arm, and back. Dr. Enstice noted that "Jaden's brain was extremely swollen, stretching the skull bones." She also noted extensive bleeding across both hemispheres of Jaden's brain and of his optic nerve sheath and retinas. The autopsy also revealed "traumatic axonal injury," which typically occurs when neurons are torn due to rapid acceleration and deceleration of the brain. Bleeding along Jaden's spinal cord and tearing of the muscle and ligaments connecting the base of his skull to his spine indicated to Dr. Enstice that Jaden's neck was repeatedly hyperextended. According to Dr. Enstice, Jaden died of "[b]lunt head and neck trauma" occurring "no more than an hour prior to his arrival" at Mercy San Juan.
Defendant was alone with Jaden for about six hours prior to driving his son to Mercy San Juan. According to his account of the events that led to his son's death, he gave Jaden a bottle of formula, laid the infant down in his crib, and then took a shower. When defendant stepped out of the shower, he heard Jaden crying and walked over to the crib. Jaden was stiff and vomited when defendant picked him up; he then went limp and stopped breathing. Defendant called 911 twice, received a recorded message both times, and drove Jaden to Mercy San Juan.*fn3 This version of events was given to hospital staff at UC Davis Children's Hospital, Jaden's mother, and a sheriff's deputy who responded to the hospital the night Jaden was admitted. However, defendant did not mention to the deputy that Jaden's body was tense when he returned to the crib following his shower. And he did not mention to Jaden's mother that their son had vomited. After defendant was questioned by an investigator sometime following Jaden's admission, defendant told Jaden's mother that "he was playing an airplane game [with Jaden] and maybe he was playing too rough."
At trial, the defense argued that defendant did not assault Jaden, and that the injuries could have been the result of an undiagnosed bleeding disorder that caused spontaneous hemorrhages and swelling in his brain. Dr. Karen Griest testified for the defense in support of this theory. For purposes of this opinion, we need not review her testimony in detail. Suffice it to say that her testimony countered that of Dr. Deborah Stewart who testified generally about shaken baby syndrome and agreed with the conclusion of the treating physicians that Jaden was "the victim of significant abusive head trauma acceleration/deceleration forces to his brain which resulted in fatal injuries."
Batson/Wheeler Motion
Defendant contends the trial court should have granted his motion to quash the jury panel because the prosecutor exercised peremptory challenges to excuse three prospective jurors on the basis of race. (People v. Wheeler, supra, 22 Cal.3d 258, overruled in part by Johnson v. California (2005) 545 U.S. 162 [162 L.Ed.2d 129]; Batson v. Kentucky, supra, 476 U.S. 79 [90 L.Ed.2d 69].) We disagree.
"Both the federal and state Constitutions prohibit any advocate's use of peremptory challenges to exclude prospective jurors based on race. [Citations.] Doing so violates both the equal protection clause of the United States Constitution and the right to trial by a jury drawn from a representative cross-section of the community under article I, section 16 of the California Constitution. [Citations.]" (People v. Lenix (2008) 44 Cal.4th 602, 612 (Lenix).)
In determining whether to grant a Batson/Wheeler motion, the trial court uses a three-part test. "First, the trial court must determine whether the defendant has made a prima facie showing that the prosecutor exercised a peremptory challenge based on race. Second, if the showing is made, the burden shifts to the prosecutor to demonstrate that the challenges were exercised for a race-neutral reason. Third, the [trial] court determines whether the defendant has proven purposeful discrimination. The ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike." (Lenix, supra, 44 Cal.4th at pp. 612-613; People v. Mills (2010) 48 Cal.4th 158, 173.)
In this case, defendant moved to quash the jury panel following the prosecutor's peremptory removal of three African-American prospective jurors (B., T., and D.-W.), arguing: "It certainly appears that the [prosecutor is] systematically excluding members of this jury panel that are of [defendant's] ethnicity, African American. [¶] [B.] has been excused. She indicated that she has law enforcement contacts, that she has been in social services and in victim's compensation. She indicated at all times she would be fair and had no bias. [¶] [T.] was excused. She indicated repeatedly that she could be fair and showed no bias toward the defense. [¶] [D.-W.] has a number of -- had law enforcement contacts, a CDC brother-in-law and a friend in the Los Angeles Sheriff's Department. She said that with the two contacts with the courts, both as a victim and with her husband as being a DUI defendant, everyone was fairly treated. And she said repeatedly that she could be fair. [¶] It appears, at least on a prima facie basis, that these people have been excused from the jury by the prosecutor because of their ethnicity." The trial court found a prima facie case of purposeful discrimination, asked for the prosecutor's reasons for the peremptory challenges, and ultimately found no discriminatory intent. "Once the trial court ruled on the credibility of the prosecutor's stated reasons, the issue of whether the defense had made a prima facie showing became moot." (People v. Jurado (2006) 38 Cal.4th 72, 104; Hernandez v. New York (1991) 500 U.S. 352, 359 [114 L.Ed.2d 395, 405].) Thus, our review is limited to the second and third stages of the Batson/Wheeler analysis.
At the second stage of the analysis, the prosecutor must provide a "'clear and reasonably specific' explanation of his [or her] 'legitimate reasons' for exercising the challenges." (Batson v. Kentucky, supra, 476 U.S. at p. 98, fn. 20.) "'The justification need not support a challenge for cause, and even a "trivial" reason, if genuine and neutral, will suffice.' [Citation.] A prospective juror may be excused based upon facial expressions, gestures, hunches, and even for arbitrary or idiosyncratic reasons. [Citations.]" (Lenix, supra, 44 Cal.4th at p. 613; People v. Arias (1996) 13 Cal.4th 92, 136; see Purkett v. Elem (1995) 514 U.S. 765, 769 [131 L.Ed.2d 834, 840].)
At the third stage of the analysis, "'the issue comes down to whether the trial court finds the prosecutor's race-neutral explanation to be credible. Credibility can be measured by, among other factors, the prosecutor's demeanor; by how reasonable, or how improbable, the explanations are; and by whether the proffered rationale has some basis in accepted trial strategy.' [Citation.] In assessing credibility, the [trial] court draws upon its contemporaneous observations of the voir dire. It may also rely on the court's own experiences as a lawyer and bench officer in the community, and even the common practices of the advocate and the office that employs him or her." (Lenix, supra, 44 Cal.4th at p. 613, citing People v. Wheeler, supra, 22 Cal.3d at p. 281; People v. Mills, supra, 48 Cal.4th at pp. 174-175.)
"The proper focus of a Batson/Wheeler inquiry, of course, is on the subjective genuineness of the race-neutral reasons given for the peremptory challenge, not on the objective reasonableness of those reasons. [Citation.] So, for example, if a prosecutor believes a prospective juror with long, unkempt hair, a mustache, and a beard would not make a good juror in a case, a peremptory challenge to the prospective juror, sincerely exercised on that basis, will constitute an entirely valid and nondiscriminatory reason for exercising the challenge. [Citation.] . . . All that matters is that the prosecutor's reason for exercising the peremptory challenge is sincere and legitimate, legitimate in the sense of being nondiscriminatory. '[A] "legitimate reason" is not a reason that makes sense, but a reason that does not deny equal protection. [Citations.]'" (People v. Reynoso (2003) 31 Cal.4th 903, 924, quoting Purkett v. Elem, supra, 514 U.S. at p. 769 [131 L.Ed.2d at p. 840].)
"We review a trial court's determination regarding the sufficiency of a prosecutor's justifications for exercising peremptory challenges '"with great restraint."' [Citation.] We presume that a prosecutor uses peremptory challenges in a constitutional manner and give great deference to the trial court's ability to distinguish bona fide reasons from sham excuses. [Citation.] So long as the trial court makes a sincere and reasoned effort to evaluate the nondiscriminatory justifications offered, its conclusions are entitled to deference on appeal. [Citation.]" (People v. Burgener (2003) 29 Cal.4th 833, 864.) Simply put, we consider only "whether substantial evidence supports the trial court's conclusions." (Lenix, supra, 44 Cal.4th at p. 627; People v. Bonilla (2007) 41 Cal.4th 313, 341-342.)
We now turn to an examination of the circumstances in which the prosecutor removed the three prospective jurors identified by defendant and conclude substantial evidence supports the trial court's assessment of the prosecutor's stated reasons for removing these prospective jurors.
Prospective Juror B.
The prosecutor explained that she removed prospective juror B. because B. stated that she had "a close male friend [who] was wrongfully charged with child molestation and taken through the system." This is a race-neutral reason for exclusion that satisfies the second stage of the Batson/Wheeler analysis. (See People v. Cowan (2010) 50 Cal.4th 401, 450 [prospective juror removed in part because "she knew people who had been falsely accused of crimes"]; see also People v. Panah (2005) 35 Cal.4th 395, 441-442 [negative experience with police or the arrest of a relative is a nondiscriminatory basis for exclusion].)
Substantial evidence supports the trial court's conclusion that B. was genuinely removed for this nondiscriminatory reason. As defendant correctly observes, at the third stage of the analysis, we must consider whether the proffered reason "applies just as well to an otherwise-similar nonblack who is permitted to serve" because such circumstantial evidence "tend[s] to prove purposeful discrimination . . . ." (Miller-El v. Dretke (2005) 545 U.S. 231, 241 [162 L.Ed.2d 196, 214].) We must do so on appeal even though defendant did not rely on a comparative juror analysis in arguing the motion below. (Lenix, supra, 44 Cal.4th at p. 622.)
However, as our Supreme Court has cautioned, "comparative juror analysis on a cold appellate record has inherent limitations" due to the fact that, "[o]n appellate review, a voir dire answer sits on a page of transcript. In the trial court, however, advocates and trial judges watch and listen as the answer is delivered. Myriad subtle nuances may shape it, including attitude, attention, interest, body language, facial expression and eye contact." (Lenix, supra, 44 Cal.4th at p. 622.) We also point out that because defendant has waited until appeal to argue comparative juror analysis, "such evidence will be considered in view of the deference accorded the trial court's ultimate finding of no discriminatory intent." (Id. at p. 624, citing Hernandez v. New York, supra, 500 U.S. at p. 365 [114 L.Ed.2d at p. 409].)
Defendant argues that comparing B.'s voir dire responses to those of seated juror 3970190 reveals the pretextual nature of the prosecutor's stated reason for removing B. because seated juror 3970190 "also had a bad experience with CPS" and "stated that CPS was greatly overworked." This comparison is a stretch. When B. was asked by defense counsel whether she could "imagine a case in which someone's charged with abuse but they didn't do it," B. responded: "Oh, yes." She then elaborated: "Um, it was a father, friend of mine, he's a guy, male friend, and he was charged with molestation, but he really didn't commit the crime and I think it was more or less taken out of [context]." She then stated that she "provide[d] emotional support" for her friend, described the situation as "pretty traumatizing," and explained that "the charges were dropped because [they were] untrue."
Unlike B.'s experience of supporting a friend who was falsely accused of molestation, seated juror 3970190's voir dire responses revealed that she was a trained volunteer for Court Appointed Special Advocates (CASA), an organization that provides volunteer advocates for children in foster care. As she explained: "We are advocates for the [4,700] dependent children in this county and we're assigned usually one child in order to advocate. Many times it's because CPS not being able to cover [sic] all they need to cover and so we advocate for the child." She also explained that she became an advocate after her daughter adopted a child out of the foster system and discovered that CPS was "overworked" and "[un]able to stay on top of this adoption." She further stated that she became an advocate because she felt "strongly that [CPS] needs a lot of help" and that CASA's role was to "basically do[] what CPS isn't doing."
While B.'s situation is very different from that of seated juror 3970190, it is similar to that of prospective juror D.-W. (discussed in detail below), who was also removed by the prosecution, and who believed that her friend was reported to CPS during a "spousal dispute" and falsely accused of showing pornography to an 11-year-old child. B.'s situation is also similar to that of prospective juror C., whose wife "felt violated" when CPS arrived at their home to investigate a "scratch" on their daughter's shoulder. C., however, was removed by the defense, and understandably so given that defendant was charged with murder and child abuse resulting in the death of his six-month-old child and C. wrote on his juror questionnaire that he was "mad at the idea of an adult abusing a baby." This serves to underscore our Supreme Court's observation that "[v]oir dire is a process of risk assessment. . . . Two panelists might give a similar answer on a given point. Yet the risk posed by one panelist might be offset by other answers, behavior, attitudes or experiences that make one juror, on balance, more or less desirable. These realities, and the complexity of human nature, make a formulaic comparison of isolated responses an exceptionally poor medium to overturn a trial court's factual finding." (Lenix, supra, 44 Cal.4th at p. 624.)
Nor are we persuaded by defendant's reliance on the fact that the prosecutor did not question B. While the failure to engage in meaningful voir dire on the subject the prosecutor claims to have been concerned about can be evidence that the stated reason for removal was in reality a pretext for discrimination (Miller-El v. Dretke, supra, 545 U.S. at p. 246 [162 L.Ed.2d at pp. 217-218]), we believe that defense counsel's voir dire of B. on the subject of her friend's "emotional" and "traumatizing" experience of being falsely accused of molestation was sufficient to indicate to the prosecutor that B. would not be a desirable juror. Substantial evidence supports the trial court's conclusion that B. was not removed on the basis of race.
Prospective Juror T.
The prosecutor explained that she removed prospective juror T. because "[T.] has a son that had run-ins with the law throughout the course of his life. She accompanied him to court in -- as late as 2009. Her son eventually -- his grant of probation was eventually revoked and he went to state prison." This reason also satisfies the second stage of the Batson/Wheeler analysis. (See People v. Gutierrez (2002) 28 Cal.4th 1083, 1123-1124 [imprisonment of a relative is a valid race-neutral reason for exclusion]; see also People v. Cummings (1993) 4 Cal.4th 1233, 1282 [conviction of a relative is a proper consideration]; People v. Sims (1993) 5 Cal.4th 405, 430 [same].)
We also conclude substantial evidence supports the trial court's determination that T. was genuinely removed for this nondiscriminatory reason. T.'s voir dire responses revealed that her 34-year-old son was convicted of multiple crimes "throughout the years," including assault and drug possession. As she explained, "he's addicted to drugs, so it was involving drugs at the time. [¶] . . . [¶] That was about 10 years ago. He's -- maybe eight years ago. He served time, but he broke his probation and he is in prison now." When the prosecutor asked whether T. had accompanied her son to court, she answered that she had done so "when he was 15 or 16" and sent to the "youth authority," and as recently as "November of last year," when he was sent back to prison. T. also stated that her son was prosecuted in Sacramento County. Despite T.'s statement that her son was "treated as fairly as one could be treated who keeps getting himself in trouble," the prosecutor was justified in determining that she posed a risk of holding her son's trouble with the law against the prosecution.
Nevertheless, defendant argues that T. is similar to seated juror 3817300, whose cousin and uncle were prosecuted for selling drugs. However, this juror's voir dire responses revealed that this prosecution occurred about eight years in the past and he did not attend the proceedings. Moreover, the fact that seated juror 3817300 had another cousin who was robbed and murdered, and whose assailants were successfully prosecuted by the Sacramento County District Attorney's office could have indicated to the prosecutor that this juror was more desirable than T. Indeed, T.'s situation is more analogous to that of prospective juror D. Apparently, D.'s son was driving a car that was involved in a shooting and was arrested for attempted murder. The prosecutor questioned D. about her son's case immediately before questioning T. about her son. The prosecutor also removed D. immediately before T. These circumstances provide additional support for the trial court's conclusion that T. was removed, not because of her race, but because of her son's trouble with the law. Substantial evidence supports this decision.
Prospective Juror D.-W.
The prosecutor explained that she removed prospective juror D.-W. for two reasons. First, "she had a friend who was . . . reported to CPS. It, however, was something that had no validity and her friend was questioned by CPS, and it stemmed from what she thought was a spousal dispute. And she apparently had some issue with that." We have already determined that this is a legitimate race-neutral reason for exercising a peremptory challenge. (See People v. Cowan, supra, 50 Cal.4th at p. 450; see also People v. Panah, supra, 35 Cal.4th at pp. 441-442.)
As a second reason for removing D.-W., the prosecutor explained that she is a pharmaceutical representative with "very limited knowledge of the medical field and the medical industry." However, her juror questionnaire indicated that she had studied "'different diseases in the body system.'" As the prosecutor explained: "My concern with [D.-W.], just like my concern with the other [registered nurse] I excused, [M.], is that they're going to be influencing the jury potentially with what they perceive [as] their knowledge of the body, disease, and whatnot." This too is a legitimate race-neutral reason for exercising a peremptory challenge. (See People v. Howard (1992) 1 Cal.4th 1132, 1156 [professional training provides a legitimate reason to challenge a juror].)
The trial court's determination that D.-W. was genuinely removed for these nondiscriminatory reasons is also supported by substantial evidence. As already mentioned, D.-W. stated during voir dire that she believed her friend was reported to CPS during a "spousal dispute" and falsely accused of showing pornography to an 11-year-old child. While defendant argues that "[t]here was nothing in any of her responses to indicate that she had some sort of 'problem' with that," the prosecutor explained that she did not like the fact that D.-W. viewed the charges as having "no validity" despite her admitted "limited knowledge" of the situation. This is a valid concern and is supported by the record.
With respect to D.-W.'s medical knowledge, she explained that she sold vaccines for a pharmaceutical company and routinely came into contact with doctors, nurses, and immunization coordinators. Apparently, prompted by a response on her juror questionnaire indicating that she had studied "'different diseases in the body system,'" the prosecutor asked whether she would be comfortable setting aside this knowledge and deciding the case based solely on the evidence presented at trial. The prosecutor asked prospective juror M., a registered nurse, the same question at the same time she asked D.-W. Both indicated they could do so. And both were removed by the prosecution. The timing of these questions provides circumstantial evidence that the medical training of these prospective jurors, whether actual or perceived, was the reason they were removed.
Nevertheless, defendant argues that the same rationale should have prompted the prosecutor to challenge seated juror 3905458, a firefighter with paramedic training. However, when questioned on voir dire about whether he had a lot of medical training, he answered: "Just paramedic is the highest." He then explained: "We treat as first responders. We go there, we stabilize as best we can, and then we take them to the medical doctors and give them a report of what we saw, what the patient presented as, how we treat it, why we treat it and give it to them and give them a complete thorough history or story of what we saw, what we were told." This account of his paramedic training could have convinced the prosecutor that he would not be attempting to influence the other jurors with his medical knowledge. On the other hand, D.-W., who was described by the prosecutor as being a well-spoken individual, proclaimed to have studied "'different diseases in the body system'" while her job as a sales representative would not ordinarily indicate a high degree of medical training. Thus, the prosecutor was not so much concerned that D.-W. had a high degree of medical training, but rather that she perhaps believed her level of training to be higher than it actually was, and that she presented a risk of influencing the other jurors with her perceived knowledge.
Defendant also complains that the prosecutor did not question D.-W. about the CPS incident. However, as with prospective juror B., the prosecutor could have received sufficient information from the defense voir dire to question whether D.-W. would be a desirable juror in light of the fact that she believed her friend was falsely accused of showing pornography to a child. And the prosecutor did question D.-W. on her perceived medical knowledge. "Under the circumstances, the prosecutor's failure to question [D.-W.] about each and every area of articulated concern does not undermine the conclusion that her stated race-neutral reasons for excusing [the prospective juror] were genuine and not pretextual." (People v. Cowan, supra, 50 Cal.4th at p. 451.)
We also note that the prosecutor did not exercise a peremptory challenge against seated juror 3810088, who was also African-American. "While the fact that the jury included members of a group allegedly discriminated against is not conclusive, it is an indication of good faith in exercising peremptories, and an appropriate factor for the trial judge to consider in ruling on a [Batson/]Wheeler objection." (People v. Turner (1994) 8 Cal.4th 137, 168; People v. Gutierrez, supra, 28 Cal.4th at p. 1122.)
Because substantial evidence supports the trial court's decision to deny defendant's Batson/Wheeler motion, we accord that decision the deference to which it is entitled. (People v. People v. Mills, supra, 48 Cal.4th at p. 185.)
Expert Testimony
Defendant asserts the trial court committed reversible error under People v. Kelly (1976) 17 Cal.3d 24 (Kelly)*fn4 by admitting expert testimony on shaken baby syndrome, arguing that a "shift in mainstream medical science casts considerable doubt as to whether this type of evidence should be admitted at all in a case such as this, where there is no history of abuse, no indications at all of any external trauma, no bruising or broken bones; only the 'classical' symptoms of [shaken baby syndrome]." However, as defendant acknowledges, he did not object to this testimony below because "evidence of [shaken baby syndrome] is routinely admitted and has never been excluded in a California case." Accordingly, he has forfeited this claim on appeal. (People v. Doolin (2009) 45 Cal.4th 390, 448; People v. Geier (2007) 41 Cal.4th 555, 610-611; People v. Combs (2004) 34 Cal.4th 821, 847; People v. Cua (2011) 191 Cal.App.4th 582, 591.)
In order to avoid this result, defendant raises "the specter of ineffective assistance of counsel." But challenging counsel's performance as constitutionally deficient on direct appeal requires more than the conjuring of a phantasm. When, as here, counsel has not had the opportunity to explain her conduct, we will not find ineffective assistance of counsel unless there could be no satisfactory explanation. (People v. Lewis (1990) 50 Cal.3d 262, 288.) Here, given the lack of any California case law supporting an objection to expert testimony on shaken baby syndrome, defendant's trial counsel could reasonably have refrained from raising a Kelly objection to this testimony because she thought it would lack merit. (See, e.g., People v. Salazar (2005) 35 Cal.4th 1031, 1038; People v. Lewis (2004) 120 Cal.App.4th 837, 846 (Lewis).)
Instructional Error
We also reject defendant's claim that the trial court committed reversible error by instructing the jury with CALCRIM No. 362. This instruction provides: "If the defendant made a false or misleading statement before this trial relating to the charged crime, knowing the statement was false or intending to mislead, that conduct may show he was aware of his guilt of the crime and you may consider it in determining his guilt. [¶] If you conclude that the defendant made the statement, it is up to you to decide its meaning and importance. [¶] However, evidence that the defendant made such a statement cannot prove guilt by itself."
We have recently approved CALCRIM No. 362, noting that our Supreme Court had consistently approved its nearly-identical predecessor, CALJIC No. 2.03.*fn5 (People v. McGowan (2008) 160 Cal.App.4th 1099, 1103; see People v. Page (2008) 44 Cal.4th 1, 50-52; People v. Jackson (1996) 13 Cal.4th 1164, 1223-1224; People v. Kelly (1992) 1 Cal.4th 495, 531-532.) This instruction is proper where the only evidence of the falsity of a defendant's statement is its inconsistency with the prosecution's case at trial. (People v. Arias, supra, 13 Cal.4th at p. 141.)
Defendant's challenge to CALCRIM No. 362 is two-fold. First, he asserts there is no evidence in the record that he made a false or misleading statement before trial relating to the crime. Second, he argues the instruction lowered the prosecution's burden of proof by allowing the jury to infer guilt from the fact that he "'lied.'" He is mistaken.
The prosecutor cited three examples of defendant's false statements: (1) defendant claimed nothing happened to Jaden immediately prior to bringing him to Mercy San Juan despite the medical evidence that he suffered from "nonaccidental trauma" to his head and neck occurring "no more than an hour prior to [his] arrival" at the hospital, a time when defendant was alone with the child; (2) defendant later told Jaden's mother that "he was playing an airplane game [with Jaden] and maybe he was playing too rough"; and (3) defendant stated that he called 911 twice and received an automated message despite trial testimony that no such calls were received at the call center and that callers do not receive an automated message.
Defendant argues that none of these statements was conclusively proven to be false. But all that is required in order for the instruction to be given is some evidence from which a reasonable jury could conclude the statements to be false or misleading. Defendant's account of the events that led to his son's hospitalization and death was inconsistent with the medical testimony that Jaden died from massive swelling and bleeding of the brain caused by nonaccidental trauma to his head and neck, i.e., shaken baby syndrome, occurring immediately before his arrival at the hospital. This initial version was also inconsistent with defendant's subsequent statement that "he was playing an airplane game [with Jaden] and maybe he was playing too rough." Based on the medical testimony, "a jury could reasonably infer that [both] statements were self-serving falsehoods intended to cast his conduct in the least culpable light." (People v. Arias, supra, 13 Cal.4th at p. 141.) The instruction was adequately supported by evidence.*fn6
Nor did the giving of this instruction violate defendant's right to due process under the state and federal Constitutions by permitting the jury to infer his guilt of the charged crimes from his false or misleading statements, thereby reducing the burden of proof. Because CALCRIM No. 362 instructs the jury that it may infer a consciousness of guilt only if it first finds that the defendant made a knowingly false or intentionally misleading statement relating to the charged crimes, and further informs the jury such evidence is not alone sufficient to prove his or her guilt, the instruction properly guides the jury's consideration of the evidence and does not lessen the prosecution's burden of proof. (People v. Jackson, supra, 13 Cal.4th at p. 1224.) Moreover, "because [the instruction] precludes a jury from convicting a defendant based solely upon his or her dishonest statements relating to the crimes," it is favorable to the defense. (People v. Page, supra, 44 Cal.4th at p. 51.) And "[i]f the court tells the jury that certain evidence is not alone sufficient to convict, it must necessarily inform the jury, either expressly or impliedly, that it may at least consider the evidence." (People v. Kelly, supra, 1 Cal.4th at pp. 531-532.) There was no error, constitutional or otherwise.
Sentencing Error
Defendant's final contention is that we must remand for resentencing because the probation report erroneously stated that he was ineligible for probation unless the trial court found this to be an unusual case. And, argues defendant, "[e]ven if the court may have understood that probation was an option, it does not appear from the record that the court considered the full scope of its discretion in granting probation." We disagree.
As defendant correctly observes, the probation report recommended a state prison term of 25 years to life, stating defendant was "not eligible for probation pursuant to [] section 1203(e)(3), unless the Court finds unusual circumstances warranting a grant of probation." The probation report further stated that "[n]o unusual circumstances were found warranting a grant of probation" and that "[h]ad unusual circumstances been found, probation would not have been recommended as the nature, seriousness and circumstances of the crime warrant a State Prison commitment."
"A defendant is presumptively ineligible for probation under section 1203, subdivision (e)(3), if he or she 'willfully inflicted great bodily injury or torture in the perpetration of the crime.'" (Lewis, supra, 120 Cal.App.4th at p. 852.) This "requires the defendant's intent to cause great bodily injury or torture, not merely that the crime resulted in great bodily injury or torture." (Id. at p. 853, citing generally People v. Gonzales (1994) 29 Cal.App.4th 1684, 1695-1698.) Here, defendant was convicted of violating section 273ab, a crime that requires only an assault "by means of force that to a reasonable person would be likely to produce great bodily injury, resulting in the child's death." (Italics added.) Thus, in order for defendant to be presumptively ineligible for probation under section 1203, subdivision (e)(3), the trial court was required to find that he actually intended to inflict great bodily injury on his son. (Lewis, supra, 120 Cal.App.4th at p. 854.) No such finding was made by the trial court.
However, in denying defendant's application for probation, the trial court stated: "[T]he evidence was strong and convincing that this baby died while under your care and control because of a forceful act committed by you. [¶] And it's because of that act that I am not able to grant you mercy. I am not able to grant you leniency. There are no factors that indicate the existence of an unusual case. There are no existent circumstances that warrant probation in this case. [¶] The nature and circumstances of the death, the fact that we have an extremely vulnerable baby, an infant, that was killed in the way it was, justifies a state prison sentence." (Italics added.) The trial court also relied on defendant's prior conviction for domestic violence resulting from an incident in which he choked his girlfriend while aggressively swinging her from side to side and twice pushed her into a shelf. Accordingly, the record reveals that the trial court first assumed defendant was presumptively ineligible for probation and found this was not an unusual case, and then assumed that defendant was eligible for probation and found that facts relating to the crime and facts relating to defendant militated against a grant of probation.*fn7 We cannot conclude this was an abuse of the trial court's discretion.
The judgment is affirmed.
We concur: NICHOLSON , Acting P. J. ROBIE , J.
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N. prodotti: 0
Totale ordine: € 0,00
FASCICOLI E ARTICOLI I PIÙ LETTI eTOC
Official Journal of the Italian Society of Anesthesiology, Analgesia, Resuscitation and Intensive Care
Indexed/Abstracted in: Current Contents/Clinical Medicine, EMBASE, PubMed/MEDLINE, Science Citation Index Expanded (SciSearch), Scopus
Impact Factor 2,036
Periodicità: Mensile
Online ISSN 1827-1596
Hänsel M. 1, Winkelmann A. M. 1, Hardt F. 2, Gijselaers W. 3, Hacker W. 4, Stiehl M. 1, Koch T. 1, Müller M. P. 1
1 Department of Anesthesiology and Intensive Care Medicine, University Hospital, University of Technology, Dresden, Germany;
2 Department of Anesthesiology and Intensive Care Medicine, Bischofswerda Hospital, Bischofswerda, Germany;
3 Faculty of Economics and Business Administration, Maastricht University, Maastricht The Netherlands;
4 Institute of Psychology, University of Technology, Dresden, Germany
BACKGROUND: We developed a 1.5 days crew resource management (CRM) course on situation awareness (SA) to improve the participants´ ability to recognise critical situations in crisis scenarios. Objective of the study was to evaluate the influence of the CRM course on SA and medical performance in crisis scenarios and to compare the results with the effects of a purely clinical simulator training.
METHODS: Sixty-one final-year medical students, randomized into three groups, took part in a pre-intervention test scenario of septic shock in a patient simulator setting. Medical performance and SA were assessed using a checklist and the Situation Awareness Global Assessment Tool (SAGAT), respectively. All students received a lecture about the sepsis guidelines. The simulator (SIM) group took part in a 1.5-day simulator training on sepsis resuscitation. The CRM group took part in a course on situation awareness. The control group (CG) did not obtain any training. All students accomplished a post-intervention test scenario comparable to the pre-intervention scenario.
RESULTS: The SAGAT score rose from 10.6±2.3 to 11.9±1.7 (preintervention vs. postintervention test, P=0.04) in the SIM group, whereas no significant changes could be shown in the CRM group and the control group, respectively. The clinical performance scores in the post-intervention test did not differ from those in the preintervention test.
CONCLUSION: Neither the 1.5 days simulator training nor the 1.5 days CRM course did influence the clinical performance scores. SAGAT scores were higher after the simulator training, but not after the CRM training.
lingua: Inglese

subset: commoncrawl


text:
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December 14, 2012
BERNARD C. HUGHES,PLAINTIFF,v.ROBERT BRUNER,DEFENDANT.
Plaintiff Bernard Hughes ("Plaintiff"), a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on January 21, 2011. Doc. 1. On April 22, 2011, the Court dismissed Plaintiff's complaint for failure to state a claim and gave Plaintiff leave to amend. Doc. 13. On May 12, 2011, Plaintiff filed the first amended complaint. Doc. 15. On July 18, 2012, the Court filed findings and recommendations recommending to dismiss the action for failure to state a claim. Doc. 16. On August 31, 2012, Plaintiff filed objections stating that he was trying to allege a retaliation claim. Doc. 17. On November 11, 2012, the Court vacated its original findings and recommendation filed on July 18, 2012, re-screened Plaintiff's amended complaint based on retaliation and dismissed with leave to amend for failure to state a claim. Doc. 18.
In the Court's dismissal filed on July 18, 2012, Plaintiff was warned that if he failed to file an amended complaint in compliance with the order, this action would be dismissed, with prejudice, for failure to state any claims. More than twenty-one days have passed and Plaintiff has not complied with or otherwise responded to the Court's order. As a result, there is no pleading on file which sets forth any claims upon which relief may be granted.
Accordingly, pursuant to 28 U.S.C. § 1915A and 28 U.S.C. § 1915(e), the Court HEREBY RECOMMENDS that:
1. this action be DISMISSED, with prejudice, based on Plaintiff's failure to state any claims upon which relief may be granted (Doc. 15; Doc. 18); and
2. The Clerk's Office is directed to enter judgment against Plaintiff.
These Findings and Recommendations will be submitted to the United States District Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen (14) days after being served with these Findings and Recommendations, plaintiff may file written objections with the court. The document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Plaintiff is advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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There are three sites at Burley Hill, giving opportunity to collect carboniferous corals and brachiopods from a small cutting, scree slopes and hillside. There is plenty to be found here, and it makes a fantastic day out. It is within an area of Outstanding Natural Beauty
♦ The fossil locality is on the hillside above the eastern edge of Burley Hill Quarry just off the public footpath.
♦ Access is by the public footpath from the Maeshafn direction (park in the village) or via the public footpath/s from the quarry access road (car parking SJ 2055 5941) – shortest.
♦ Burley Hill is a semi-active limestone quarry within the Clwydian Range Area of Outstanding Natural Beauty (A.O.N.B.).
♦ The site can be combined with other sites and attractions in the area for a whole day excursion.
♦ Ref: 53.12913°N, 3.19225°W
FIND FREQUENCY: ♦♦♦ – Fossils are quite common from this location and the three sites give plenty of location for collecting here.
CHILDREN: ♦♦♦ – Site is suitable for children but keep a eye on them anywhere near the quarry workings (good fence by the site but lower down access can be gained via the public footpath).
ACCESS: ♦♦♦ – There is a walk to the sites within the location, but its not too far and access is good. This location can be difficult to locate, so we recommend maps or GPS. Recommended is the Miner Arms in Maeshafn village for light refreshments, real ales and food.
TYPE: – There are three sites within this location where you can find fossil. The first is a small cutting by the footpath, the second is a scattered scree slope and the third is the hillside above these.
The site comprises of several different areas with various fossils also being found on the quarry access road and in the various limestone walls and scattered blocks in the general area. Of note: Site A is a small cutting by the footpath. Site B is a scattered scree slope. Site C is hillside above these. Locations are detailed in the 'where is it?' page found under the location summary section.
Corals, brachiopods and crinoids can be found. Weathering of the limestone can reveal exceptional detail of corals in particular. Find frequency is high though quality of specimens is not so good.
The carboniferous limestone has been quarried for many years for crushed rock aggregate. This formed under a warm shallow sea – circa 330MYA.
This site is generally safe, but please follow the countryside rules. Take litter home with you, and stick to the public footpaths. If using hammers, please ensure you wear goggles. Keep away from the quarry.
A map, a number of bags and newspaper in which to wrap your finds is all that is really needed at this location. A hammer may come in handy for breaking up larger blocks.
The nature reserve is an open access area with areas of woodland and upland heath. The sites are along public footpaths.
It is important to follow our 'Code of Conduct' when collecting fossils or visiting any site. Please also read our 'Terms and Conditions'
♦ Buy Fossils, Crystals, Tools
♦ Location Discussions
♦ Deposits Magazine
♦ Join Fossil Hunts
♦ UK Fossils Network


text:
In this one of a kind dance series, two imaginary creatures pick up everyday objects and transport them into a fantasy world filled with colour, imagination, music, and movement. This series introduces the world of dance in a fun and imaginative way.
Сегодня, 19:19Dream with Kim
Сегодня, 03:44Dream with Kim
Сегодня, 04:35Dream with Kim
Завтра, 19:19Dream with Kim
Завтра, 03:43Dream with Kim
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7 ср, 19:19Dream with Kim
7 ср, 03:41Dream with Kim
7 ср, 04:32Dream with Kim
8 чт, 19:19Dream with Kim


text:
Thread: How to achieve the following?
10-22-2009, 08:13 PM #1Web Hosting Master
- Join Date
- Dec 2002
- Posts
- 592
How to achieve the following?
I've been reselling WHM/Cpanel hosting for like 9 years, I design and develop on PHP(Database related, not server side stuff). I don't know linux nor apache etc.
I want end users to be able to create/have a website under a subdomain and with a web builder, automathically, not me setting up accounts.
Like companyX.main.com
main.com would be mine
1) They would just fill a form
2) It would need to check if their email is already on a Database(via PHP I guess) and verify some stuff(I have other projects and plans for this) and if it checks..., then the account is created.
3) The account needs to have a Webbuilder for them to setup a website. Some Cpanel Reseller accounts have already WebBuilders to offer to end users.
Would be great if..
A) I can disable features just like if it were a cPanel hosting account(FTP,Email accounts, etc.). I'm not planning to offer to much stuff, just a subdomain and their website.
B) I have another project where I need them to register before getting their website acount, so that's why I need to verify if their email address is already on that DB
C) I would like the accounts to be very light on server side structure, I don't know.. system files I guess, folders, etc.
I mean, if I create an account from WHM I supose the server creates some structure stuff for that domain only..., imagine having 2000 accounts.
If I create a subdomain on a Cpanel account, I think it just creates a folder, I think that's very light, but not sure about the features and exclusive rights for each subdomain.
I supuse the Webbuilder would not work independently for each subdomain.
Is it possible with an end Cpanel hosting account?
Or it will need to be a normal Cpanel account for each subdomain(using the subdomain.main.com as the domain) in order to have individual features.?
Does the Cpanel or WHM offers an interfase to create an account without entering the control panel?(like with a form and maybe some PHP)
Would I need to go the next level from Reseller? (VPS or Dedicated for having server side rights?). I would really prefere if is possible with just Reseller rights.
Otherwise I supose I could get a managed VPS.
Thank you very much for you help
10-23-2009, 01:42 AM #2Keith I Myers
KMyers.me The rantings of a lunatic
Geek Survival Guide - Reviews and Advice for Geeks
10-23-2009, 06:07 PM #3Web Hosting Evangelist
- Join Date
- Dec 2007
- Location
- Missouri, USA
- Posts
- 485
Seems like you need an account maker script.
WHMCS will set this up, and do an email check to see if their already a customer.
It costs 15$ monthly, but it'll do everything you need.i
10-23-2009, 07:27 PM #4Web Hosting Master
- Join Date
- Dec 2002
- Posts
- 592
thanks for the opinions
I was checking and because I'm up to offer just a very basic web builder, like some templates with the PHP placeholders where the contents can be pulled from a database. No FTP access nor email accounts. just subdomains.
So I was thinking of just developing a PHP database script where users register and just create "pages"(database memo records holding HTML from a FSCKeditor or such). Their subdomain will point to a folder, where an index.php will just pull the selected design template from a single place(for all users to use) and showing in the fly the pages.
The templates files will just be stored in one place, and called by any subdomain using them.
10-23-2009, 07:31 PM #5Keith I Myers
KMyers.me The rantings of a lunatic
Geek Survival Guide - Reviews and Advice for Geeks
10-23-2009, 07:49 PM #6Web Hosting Master
- Join Date
- Dec 2002
- Posts
- 592
I wonder if instead of creating physical folders for each user, which could be thousands, instead could be pulled from a database and then assamble and deliver the webpage.
Like maybe just one index.php for all, just by knowing which subdomain is being accessed and then delivering the correct data to the browser.
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text:
10 servings (serving size: 1/2 cup)
+ Add To Shopping List
2 small tomatoes, each cut into 4 wedges
Cooking spray
1/2 teaspoon salt, divided
1/8 teaspoon pepper
3 tablespoons red wine vinegar
2 tablespoons low-salt chicken broth
2 teaspoons olive oil
1/4 teaspoon Dijon mustard
Dash of sugar
1 garlic clove
1 teaspoon minced fresh cilantro
1 cup diced red onion
1 cup diced yellow bell pepper
1/4 cup minced fresh cilantro
1 (19-ounce) can kidney beans, drained
1 (19-ounce) can cannellini beans or other white beans, drained
Preheat oven to 350°.
Place tomato wedges on a baking sheet coated with cooking spray. Lightly coat tomatoes with cooking spray; sprinkle with 1/4 teaspoon salt and pepper. Bake at 350° for 1 hour.
Place tomatoes, 1/4 teaspoon salt, vinegar, and next 5 ingredients (vinegar through garlic) in a blender; process until smooth. Pour into a bowl. Stir in 1 teaspoon cilantro; set aside.
Combine onion, bell pepper, cilantro, and beans in a bowl; stir well. Add tomato mixture; toss well.
Created date
May 2004
Nutritional Information
Calories 124
Caloriesfromfat 15 %
Fat 2.1 g
Satfat 0.3 g
Monofat 0.9 g
Polyfat 0.6 g
Protein 6.7 g
Carbohydrate 20.9 g
Fiber 3.3 g
Cholesterol 0.0 mg
Iron 2.4 mg
Sodium 265 mg
Calcium 35 mg


text:
Sunset Ledge-Incredible Sunsets/HT and Fence-in for your pets!
From $145 / night
Description from the manager
Description from the manager
Bedrooms: 3/
Bathrooms: 2/
Sleeps: 6/
Type: Cabin
Book this 3 bedroom, 2 bathroom cabin in Morganton today! A total of 6 people can sleep here comfortably. This property has been booked 3 times.
Guests can enjoy a hot tub, deck, and outdoor grill among other amenities offered by this rental.
Travelers are sharing their opinions on this property. It has an overall rating of 5/5 thanks to an average of 20 reviews.
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The owner last updated the property's calendar today.
About the manager
About the manager
Enchanted Mountain Retreats
Enchanted Mountain Retreats
- Response rate: n/a
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- Calendar updated: today
Overall rating:
4.5 / 5.0
Proximity to TripAdvisor's Top Morganton Attractions
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Superior Court of Pennsylvania
March 5, 2014
COMMONWEALTH OF PENNSYLVANIA Appelleev.EDWARD R. HOVINGTON Appellant
Appeal from the Judgment of Sentence November 19, 2012 In the Court of Common Pleas of Chester County Criminal Division at No(s): CP-15-CR-0003948-2010; CP-15-CR-0003988-2011
BEFORE: GANTMAN, J., OLSON, J., and WECHT, J.
Appellant, Edward R. Hovington, appeals from the judgment of sentence entered in the Chester County Court of Common Pleas, following his jury trial convictions for criminal solicitation, criminal use of a communication facility, possession of a controlled substance, possession of a controlled substance with intent to deliver ("PWID"), and possession of drug paraphernalia.[1] We vacate and remand for resentencing.
The relevant facts and procedural history of this case are as follows. Between 2009 and 2010, police investigated a cocaine distribution ring in West Chester, Pennsylvania. Wiretap surveillance revealed Appellant's involvement. On June 3, 2010, police executed a search warrant at Appellant's home, at which time police discovered, inter alia, cocaine, drug paraphernalia, and a handgun. The Commonwealth subsequently charged Appellant with various drug related offenses. Appellant filed a motion to suppress on April 5, 2011, and an amended motion to suppress on May 11, 2011. On May 13, 2011, the court held a suppression hearing. The court denied Appellant's motion on June 14, 2011.
On August 31, 2012, a jury convicted Appellant of PWID, simple possession, criminal solicitation to commit PWID, and related offenses. On November 19, 2012, the court imposed an aggregate sentence of six (6) to thirteen (13) years' imprisonment, plus three (3) years' probation. Appellant's aggregate sentence included a mandatory minimum on the PWID conviction of five (5) years' imprisonment pursuant to 42 Pa.C.S.A. § 9712.1 (mandating five year minimum sentence for defendant convicted of PWID when at time of offense, defendant was in physical possession or control of firearm, or firearm was in close proximity to controlled substance). On November 29, 2012, Appellant filed a motion for reconsideration. While his motion for reconsideration was pending, Appellant filed a notice of appeal.[2] The court ordered Appellant to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), and Appellant timely complied.
Appellant raises the following issues for our review:
(Appellant's Brief at 6).
For purposes of disposition, we combine Appellant's first and second issues on appeal. Appellant asserts the court imposed a mandatory minimum five (5) year sentence pursuant to 42 Pa.C.S.A. § 9712.1 for his PWID conviction. Appellant argues that, to impose the mandatory minimum the court determined by a preponderance of the evidence (per Section 9712.1(c)) Appellant had physical possession or control of a firearm at the time of his offenses. Appellant relies on the United States Supreme Court's recent decision in Alleyne v. United States, __ U.S. __, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), for the rule that imposition of the mandatory minimum based on a finding by the preponderance of the evidence was improper. Based on Alleyne, Appellant insists the jury, as fact-finder, was required to determine beyond a reasonable doubt whether Appellant physically possessed a firearm at the time of the offense.
In the alternative, Appellant explains police recovered a .40 caliber Glock handgun, which Appellant lawfully possessed, in an unlocked case in a dresser drawer during execution of the search warrant. Appellant contends police did not intercept any conversations implicating Appellant in which Appellant discussed the use of firearms. Appellant highlights he did not threaten police or any other person with use of the handgun or display the firearm before, during, or after execution of the search warrant. Appellant submits he lawfully possessed the firearm for self-protection, unrelated to his drug activity. Appellant maintains the Commonwealth presented no evidence that he committed PWID with firearms as required by Section 9712.1, governing "sentences for certain drug offenses committed with firearms."[3] Appellant concludes the court's imposition of a mandatory minimum sentence for his PWID conviction violated Alleyne, and this Court must vacate and remand for resentencing. We agree Appellant is entitled to relief on this issue.[4]
Our standard of review is as follows:
Generally, a challenge to the application of a mandatory minimum sentence is a non-waiveable challenge to the legality of the sentence. Issues relating to the legality of a sentence are questions of law, as are claims raising a court's interpretation of a statute. Our standard of review over such questions is de novo and our scope of review is plenary.
Commonwealth v. Hawkins, 45 A.3d 1123, 1130 (Pa.Super. 2012), appeal denied, 617 Pa. 629, 53 A.3d 756 (2012) (quoting Commonwealth v. Brougher, 978 A.2d 373, 377 (Pa.Super. 2009)).
Section 9712.1 sets forth the mandatory minimum sentence imposed in this case, as follows:
§ 9712.1. Sentences for certain drug offenses committed with firearms
(a) Mandatory sentence.-Any person who is convicted of [PWID] when at the time of the offense the person or the person's accomplice is in physical possession or control of a firearm, whether visible, concealed about the person or the person's accomplice or within the actor's or accomplice's reach or in close proximity to the controlled substance, shall likewise be sentenced to a minimum sentence of at least five years of total confinement.
(c) Proof at sentencing.-Provisions of this section shall not be an element of the crime, and notice thereof to the defendant shall not be required prior to conviction, but reasonable notice of the Commonwealth's intention to proceed under this section shall be provided after conviction and before sentencing. The applicability of this section shall be determined at sentencing. The court shall consider any evidence presented at trial and shall afford the Commonwealth and the defendant an opportunity to present any necessary additional evidence and shall determine, by a preponderance of the evidence, if this section is applicable.
42 Pa.C.S.A. § 9712.1 (emphasis added) (internal footnote omitted).
After Appellant's sentencing, the United States Supreme Court announced its decision in Alleyne on June 17, 2013, expressly holding that any fact increasing the mandatory minimum sentence for a crime is considered an element of the crime to be submitted to the jury and found beyond a reasonable doubt. Alleyne, supra at __, 133 S.Ct. at 2155, 2163, 186 L.Ed.2d at __.
This Court recently addressed Alleyne in connection with Section 9712.1, when physical control or possession of a firearm is treated as a sentencing factor and not as an element of the crime. Commonwealth v. Munday, 78 A.3d 661 (Pa.Super. 2013). In Munday, following a bench trial, the court convicted the defendant of PWID and related offenses. At sentencing, the court imposed the mandatory minimum sentence per Section 9712.1. On appeal, Appellant challenged imposition of the mandatory minimum sentence. This Court explained:
Presuming the trial court followed the dictates of section 9712.1(c) (and we have no reason to presume otherwise), the determination of whether Appellant, at the time of the offense, was in physical possession or control of a firearm under Section 9712.1(c) was treated as a sentencing factor and not an element of the underlying drug offense. As such the trial court was only required to make such a finding based upon a preponderance of the evidence rather than based upon proof beyond reasonable doubt. … However, Alleyne undeniably establishes, despite our legislature's express statutory language to the contrary in this instance, that when a mandatory minimum sentence is under consideration based upon judicial fact[-]finding of a sentencing factor, that sentencing factor is, in reality, an element of a distinct and aggravated crime and, thus, requires it be proven beyond a reasonable doubt.
Id. at 666 (internal citations and quotations omitted). This Court held the imposition of the mandatory minimum sentence under Section 9712.1 was improper under Alleyne, and vacated and remanded for resentencing. Id. at 666-67.
Instantly, a jury convicted Appellant of PWID, simple possession, criminal solicitation to commit PWID, criminal use of a communication facility, and possession of drug paraphernalia. The jury made no determination on whether Appellant possessed or controlled a firearm at the time of his PWID offense, or whether a firearm was in close proximity to the drugs recovered. See 42 Pa.C.S.A. § 9712.1(a). Rather, the sentencing court decided this point as a sentencing factor, based on a preponderance of the evidence standard (see 42 Pa.C.S.A. § 9712.1(c)), and ultimately imposed the mandatory minimum sentence. Because Appellant's possession or control of a firearm or its close proximity to the drugs in question subjected Appellant to a mandatory minimum sentence, under Alleyne, the fact-finder should have made that finding beyond a reasonable doubt. See Alleyne, supra; Munday, supra. Thus, we must vacate Appellant's judgment of sentence and remand for resentencing. See id. Compare Commonwealth v. Watley, 81 A.3d 108 (Pa.Super. 2013) (en banc) (holding imposition of mandatory minimum sentence was proper, where jury determined beyond reasonable doubt that appellant possessed firearms in connection with drugs).[5]
In his third issue on appeal, Appellant asserts the affidavit in support of the application for the search warrant for Appellant's residence failed to allege any "nexus" between the residence and drug dealing activities. Appellant avers the mere fact that he was suspected of dealing drugs was insufficient to call his residence under examination. Appellant contends the affidavit of probable cause showed Appellant was a drug user, not a dealer, so even if the affiant's opinion were acceptable, there was still no "nexus" between Appellant's alleged drug use and his residence, absent evidence of drug dealing. Appellant concludes the court erred in denying his suppression motion. We cannot agree.
"Our standard of review in addressing a challenge to a trial court's denial of a suppression motion is limited to determining whether the factual findings are supported by the record and whether the legal conclusions drawn from those facts are correct." Commonwealth v. Williams, 941 A.2d 14, 26 (Pa.Super. 2008) (en banc) (quoting Commonwealth v. Jones, 874 A.2d 108, 115 (Pa.Super. 2005)).
[W]e may consider only the evidence of the prosecution and so much of the evidence for the defense as remains uncontradicted when read in the context of the record as a whole. Where the record supports the findings of the suppression court, we are bound by those facts and may reverse only if the court erred in reaching its legal conclusions based upon the facts.
Williams, supra at 27 (quoting Jones, supra). Nevertheless, "to preserve their claims for appellate review, appellants must comply whenever the trial court orders them to file a Statement of [Errors] Complained of on Appeal pursuant to [Rule] 1925. Any issues not raised in a [Rule] 1925(b) statement will be deemed waived." Commonwealth v. Castillo, 585 Pa. 395, 403, 888 A.2d 775, 780 (2005) (quoting Commonwealth v. Lord, 553 Pa. 415, 420, 719 A.2d 306, 309 (1998)).
Instantly, Appellant raised the following issues in his Rule 1925(b) statement related to his suppression motion: (1) "The Commonwealth did not have [r]easonable [s]uspicion to stop [Appellant] or [p]robable [c]ause to apply for a search warrant, and the Magistrate/Judge should not have authorized the aforementioned warrant"; (2) "If the Court finds that the warrant was properly granted, the [warrant] executed by [p]olice was overbroad"; and (3) "If the Court finds that the warrant was not overbroad, the warrant was facially deficient in failing to state sufficient probable cause." (Appellant's Rule 1925(b) statement, filed 1/22/13, at 1). On appeal, Appellant now complains the search warrant failed to describe a "nexus" between Appellant's residence and his drug use. Appellant did not present this claim in his concise statement. Therefore, it is waived on appeal. See Castillo, supra; Lord, supra.
Moreover, the court explained its rationale for denying Appellant's motion to suppress, as follows:
Examining the warrant, we concluded [at the suppression hearing] and affirm now that its four corners provided the issuing judge with a quilt of associated facts amounting to sufficient probable cause to have authorized the warrant's issuance authorizing the search of Appellant's residence. Examining the warrant we find that the initial investigation by police focused on one Vincent Marchant, who police identified as an individual deeply involved as a supplier in a cocaine distribution network in the Borough of West Chester. … The warrant identifies numerous incidents, including controlled buys, wiretaps and intercepted phone calls, authorized by warrants, corroborating Marchant's multiple sales of cocaine during an on-going period between April 12, 2009 and May 25, 2010. The thrust of Appellant's argument at [the] hearing on the Motion [to suppress] was that until page 9 of the Affidavit, Appellant's name is not identified in the facts detailed in those pages, and that the Affidavit's statement of supporting facts pertinent to him, which are stated at pages 12 through 14 under the heading entitled, "Investigative background on [Appellant], " are insufficient to connect him to participation with Marchant in the distribution of cocaine, or, indeed, to possessing or dealing in cocaine at all.2
2 Actually, on page 4 of the warrant, under the heading, "Subject of Investigation" the following paragraph appears: "This Affidavit is submitted to support an application for a search warrant on the residence [of Appellant]. Based on the facts outlined below, there is probable cause to conclude that [Appellant] is actively involved in the ongoing distribution of significant quantities of cocaine in Chester County. These facts also establish that Marchant is a source of supply for [Appellant]."
During [the] hearing on the Motion, Appellant introduced Exhibit D-1, which contains his interpretation of the intercepted phone and text messages exchanged by him with Mr. Marchant, and at their 4 meetings that occurred following those electronic contacts, which were observed by police during their surveillance of these activities, as more expansively reported on pages 12 through 14 of [Detective] McFarlane's affidavit. Appellant argued those contacts are consistent with innocent conduct, without indicia of incriminating criminal conduct, and are insufficient to support a reasonable belief that he was then and there engaged in criminal conduct or a criminal enterprise, especially where, as here, his name was not tied to incriminating drug activities described elsewhere in the affidavit. We do not agree. The affidavit identifies 19 Ingleside Drive, Thorndale, Chester County, Pennsylvania as Appellant's residence; described multiple phone calls between him and Marchant, the content and brevity of which leads to the reasonable conclusion that Appellant was then and there arranging to purchase/acquire cocaine from Marchant; details 4 meetings between Appellant and Marchant that were observed by police on March 21, 2010, May 3, 2010, May 6, 2010, and May 17, 2010 that were unmistakably drug purchase and sale transactions; evidence of the latter conclusion is cemented by an exchange of phone calls between Appellant and Marchant immediately preceding each of those meetings, legally intercepted by police on or about those same dates, during which the cryptic lingo of the drug trade was used by Appellant and Marchant in an attempt to disguise their intentions; and following Appellant's March 21, 2010 drug purchase from Marchant, Detective McFarlane observed Appellant leave Marchant's West Chester residence at 1143 hours, followed Appellant's motorcycle for a distance, and observed it parked at Appellant's residence at 19 Ingleside Drive, Thorndale, Pennsylvania some 27 minutes later at 1210 hours; on May 6, 2010, following a phone call from Appellant to Marchant at 2007 hours, that was lawfully intercepted by police, detectives on surveillance observed Appellant meet Marchant outside the Star Social Club in the Borough of West Chester at 2111 hours; and at 2132 hours that same night, observed Appellant park in his driveway and meet the driver of a Honda SUV, both of whom then entered Appellant's residence at 19 Ingleside Drive; on May 7, 2010[, Appellant] sent Marchant a text message asking him to "tuck that Mike Vick away" until tomorrow. The affidavit reveals that a "Mike Vick" is drug lingo for 7 grams of cocaine, and derives from Vick's Philadelphia Eagles football team jersey number, 7[;] on May 7, 2010, the affidavit states that [Jamy] Mickens called Marchant and asked for a "Mike Vick"; on May 8, 2010[, ] Mickens called Marchant and asked that he call a supplier for the purpose of their buying a "point" (125 grams of cocaine); on May 16, 2010, Marchant and Mickens exchanged messages arranging for Mickens' purchase of cocaine in Delaware, which was consummated the following day; on May 16 and 17, 2010, Appellant and Marchant exchanged intercepted phone and text messages that, in context with other facts recited in the affidavit, were clearly preparatory to a drug purchase by Appellant from Marchant from the supply acquired by Mickens; and, on May 17, 2010, police observed a meeting between Marchant and Mickens in West Chester, following which Marchant alerted his contacts, including Appellant, that his drug supply had arrived; on May 19, 2010, Appellant called Marchant, immediately following which they met at Marchant's West Chester residence. We concluded then, and affirm now, that an integrated reading of the affidavit, which includes the unmistakable facts supporting the conclusion that Marchant is a drug dealer, possessed of a network of associates, among whom it is reasonably concluded that Appellant is included, provided probable cause to conclude that Appellant was using and dealing in cocaine. As such, its allegations provided probable cause for the issuance of the search warrant of Appellant's residence.
… Based upon the totality of the evidence pertaining to Appellant and his contacts with Marchant, Detective McFarlane had reasonable basis and probable cause to believe that Appellant was engaged as a drug dealer from his residence, thereby warranting its search. Appellant also argued that the Affidavit does not reflect that any illegality took place at his residence. We do not agree. In narcotics cases, "evidence…is likely to be found where the [drug] dealers reside." United States v. Burton, 288 F.3d 91, [103] (3d Cir. 2002).
(Trial Court Opinion, filed April 12, 2013, at 8-13) (some internal citations omitted). The record supports the court's analysis. See Williams, supra. Therefore, even if properly preserved, Appellant's suppression issue would merit no relief. Accordingly, we affirm Appellant's convictions but, based on our disposition of Appellant's sentencing issue, we vacate the judgment of sentence and remand for resentencing without imposition of the mandatory minimum sentence.
Judgment of sentence vacated; case remanded for resentencing. Jurisdiction is relinquished.
I join the result reached by the learned Majority. However, I would do so on different grounds. I would strike down 42 Pa.C.S. § 9712.1(c) as unconstitutional pursuant to the United States Supreme Court's recent decision in Alleyne v. United States, 133 S.Ct. 2151 (2013).
Rather than ruling upon the constitutionality of 42 Pa.C.S. § 9712.1(c), the Majority, relying upon Alleyne and our recent decision in Commonwealth v. Munday, 78 A.3d 661 (Pa.Super. 2013), holds only that Appellant's sentence was illegal because the sentencing court found by a preponderance of the evidence that Appellant possessed or controlled a firearm that was located in close proximity to the drugs for which Appellant was convicted. See Maj. Mem. at 7. The Majority properly concludes that the fact-finder, a jury in this case, was required to make that factual finding beyond a reasonable doubt. There is no question that Alleyne requires this result.
I recognize the well-entrenched legal principle, which the Majority cites, that courts should not reach constitutional questions if a non-constitutional ground for the decision is available. Maj. Mem. at 4 n.3 (citing Commonwealth v. Levanduski, 907 A.2d 3, 14 (Pa.Super. 2006) (en banc)). I support the Majority's restraint in principle. However, Alleyne is based upon the Sixth Amendment's fundamental right to a jury trial, and Munday is based upon Alleyne. The Majority's decision, in turn, relies upon both of these decisions. Thus, albeit without saying so, the Majority has based its decision upon constitutional principles that I believe require us to strike down subsection (c) entirely.
By declining to find the statute facially unconstitutional, we leave the bench and bar in confusion. Alleyne very clearly renders the statute unconstitutional. The Majority finds Appellant's sentence to be illegal solely because the trial court made the necessary finding to trigger the mandatory minimum sentence by a preponderance of the evidence, when that trigger should have been found by the jury beyond a reasonable doubt. This approach mistakenly implies that the sentence would have been legal had the question been submitted to the jury and the correct burden of proof applied.
This implication is incorrect, because the statute alone authorizes the imposition of the mandatory minimum sentence. Subsection (c) states as follows:
(c) Proof at sentencing.-Provisions of this section shall not be an element of the crime, and notice thereof to the defendant shall not be required prior to the conviction, but reasonable notice of the Commonwealth's intention to proceed under this section shall be provided after conviction and before sentencing. The applicability of this section shall be determined at sentencing. The court shall consider any evidence presented at trial and shall afford the Commonwealth and the defendant an opportunity to present any necessary additional evidence and shall determine, by a preponderance of the evidence, if this section is applicable.
42 Pa.C.S. § 9712.1(c). The statute authorizes a mandatory minimum sentence only if the unconstitutional procedure utilized in this case is followed: only if the court finds by a preponderance of the evidence that the relevant criteria have been satisfied may it impose the mandatory minimum sentence at issue. In failing to mention this critical problem, the Majority leaves the bench and bar in the dark in drug cases implicating mandatory minimum sentences.
Nearly every element of subsection (c) runs afoul of the constitutionally-based holding in Alleyne. I respectfully believe that reaching the constitutional question in this case not only is justified, but is necessary.
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Walnut Pesto
|1 Cup (16 tbs)
|Pine nuts/Almonds
|1⁄4 Cup (4 tbs)
|Olive oil/Cooking oil
|3 Tablespoon
|Ricotta cheese
|1 Cup (16 tbs)
|Grated parmesan cheese
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|Dried marjoram
|1⁄2 Teaspoon, crushed
|Ground nutmeg
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In blender container blend walnuts and pine nuts till finely chopped.
With machine running on high speed, slowly add oil, blending till smooth.
In small mixer bowl beat ricotta till smooth; add nut mixture, parmesan, marjoram, nutmeg, 1/8 teaspoon salt, and dash pepper.
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Nutrition Rank
Nutrition Facts
Serving size: Complete recipe
Calories 1852 Calories from Fat 1499
% Daily Value*
Total Fat 175 g268.5%
Saturated Fat 40 g199.8%
Trans Fat 0 g
Cholesterol 152.9 mg51%
Sodium 689.1 mg28.7%
Total Carbohydrates 29 g9.6%
Dietary Fiber 9.1 g36.3%
Sugars 5 g
Protein 60 g119.8%
Vitamin A 29.3% Vitamin C 4.8%
Calcium 101% Iron 46.3%
*Based on a 2000 Calorie diet


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Vidyadhar Paradkar knew Haseeb Hameed would go far when he first met him. He has, and it's due in no small part to Paradkar


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"Beaches - Maphelana" Top 5 Page for this destination Province of KwaZulu-Natal Things to Do Tip by MikeAtSea
Province of KwaZulu-Natal Things to Do: 89 reviews and 112 photos
Maphelana is the southernmost camp in the Greater St Lucia Wetland Park. A popular destination for ski boaters and surf anglers , it lies on the south bank of the Mfolozi River, at the point where it enters the Indian Ocean. The rocky intertidal areas offer excellent musselling and crayfishing. The roads, which can be rough at times, can also be used for taking walks and enjoying the natural forest habitats under the canopy of enormous trees. More than 200 bird species have been recorded here. The bay provides a sheltered launch site for deep sea fishing boats. Shore fishing and spear fishing are also popular. People harvest shellfish under permit on the rocks. The bay is wonderful for swimming, although, please note that there are no shark nets !
Directions: In Northern KwaZulu Natal adjacent to Lake St. Lucia
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