Opinion

Com. v. Varner, E.

Court: Superior Court of Pennsylvania
Filed: Jan 24, 2025
Status: Unpublished
On the bench: King
Cited by: 0 cases
Authority: More cited than 33.8%

explaining arguments that defendant received excessive sentence and court failed to articulate reasons for sentence implicates discretionary aspects of sentencing

How later courts described this case

explaining arguments that defendant received excessive sentence and court failed to articulate reasons for sentence implicates discretionary aspects of sentencing
holding that Apprendi was not violated when the trial court graded conviction based on facts that appellant’s counsel admitted during closing argument in the presence of jury

Written by the judges who cited it.

The opinion

J-S35039-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

v. :

ERIC LYNN VARNER :

Appellant : No. 1 MDA 2024

Appeal from the Judgment of Sentence Entered December 7, 2023

In the Court of Common Pleas of Huntingdon County Criminal Division at

No(s): CP-31-CR-0000137-2022

BEFORE: PANELLA, P.J.E., MURRAY, J., and KING, J.

MEMORANDUM BY KING, J.: FILED: JANUARY 24, 2025

Appellant, Eric Lynn Varner, appeals from the judgment of sentence

entered in the Huntingdon County Court of Common Pleas, following his jury

trial convictions for endangering the welfare of a child (“EWOC”) and recklessly

endangering another person (“REAP”).1 We affirm.

The trial court set forth the relevant facts and procedural history of this

case as follows:

[Appellant] is a U.S. citizen … [and] Charmis Maines, who

was [Appellant’s] paramour for a time, was born and raised

in the Republic of the Philippines. In January 2020, while

Ms. Maines was still in the Philippines, they began their

relationship by telephone. Eventually, Ms. Maines came to

the U.S. to live with [Appellant] at his home…. The two have

a son together, Z.L.V., who was born in 2021. On January

23, 2022, when Z.L.V. was nine months old, Pennsylvania

State Police [(“PSP”)] troopers were dispatched to

____________________________________________

1 18 Pa.C.S.A. §§ 4303(a) and 2705, respectively.

J-S35039-24

[Appellant’s] home after Ms. Maines called 911 out of

concern that [Appellant] was suicidal. PSP corporal

Jonathan Thomas was one of the officers who responded,

and in the course of his interview with Ms. Maines, she

disclosed to him concerns she had with [Appellant’s]

treatment of Z.L.V., including videos she had taken of such

treatment. As a result of the contact [Appellant] was

transported to the hospital for an evaluation … and a child

abuse investigation was initiated based on Ms. Maines’

disclosures.

The child abuse investigation was assigned to PSP criminal

investigators, Paul Brenneman and Robert Colton, who

conducted their investigation in coordination with the

Huntingdon County Children and Youth Services agency.

The videos were captured by Ms. Maines in a multi-step

process. The sound and imagines were originally captured

by a baby monitor placed in Z.L.V.’s room, over the top of

his crib. The baby monitor itself does not have a record

function, and Ms. Maines then re-recorded the videos on her

tablet by playing the videos on her cell phone and recording

them with the camera on the tablet. She made recordings

from three dates, December 23, 2021, January 7, 2022, and

January 9, 2022. The tablet was taken into custody as

evidence by the troopers. Based on the content of the

recordings, [Appellant] was charged with multiple child

abuse offenses….

…[Appellant] filed a[n] omnibus pretrial motion on August

18, 2022, seeking suppression of the videos on the basis

that they were obtained in violation of the Wiretapping and

Electronic Surveillance Control Act, 18 Pa.C.S [§§ 5701-

5782] (the “Wiretap Act”). Specifically, [Appellant] claimed

that Ms. Maines’ actions violated [Section] 5703 of the

Wiretap Act, and her actions did not fall into the “crime of

violence” exception under [Section] 5704(17) of the Wiretap

Act.

It must be noted that Ms. Maines’ first language is Tagalog,

and that while she can speak and understand English well

enough to “get by,” her ability to communicate and express

herself in English is imperfect. Because of this, [a Tagalog

interpreter was required for the hearing on Appellant’s

suppression motion]. The hearing was held on January 4,

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2023. The Commonwealth presented testimony from Ms.

Maines and Trooper Brenneman. Because of the particular

dialect of Tagalog that Ms. Maines speaks, the interpretive

process was quite difficult, and her testimony came off as

quite stilted and limited. Regardless, the [trial] court was

able to make findings of fact and rule on the suppression

motion, denying it [on] January 31, 2023.

* * *

[Appellant] was brought to trial before a jury on September

18, 2023. Just prior to trial, the Commonwealth moved to

withdraw a number of lesser charges, which was granted.

The final charges on which [Appellant] was brough to trial

are as follows: [Count 1: aggravated assault, 18 Pa.C.S.A.

§2702(a)(8), F2; Count 7: EWOC-parent commits the

offense, 18 Pa.C.S.A. § 4304(a)(1), F2; Count 8: REAP, 18

Pa.C.S.A. §2705, M2.]

* * *

The court prepared charge specific jury instructions for each

count based on the Pennsylvania Standard Jury

Instructions. These were provided to counsel before trial

and discussed on the record after the close of the

Commonwealth’s case, outside the hearing of the jury.

[Appellant] did not raise issues with regard to the

instructions on Count 1 and 8, but did raise an issue with

Count 7.

On Count 7, the court drafted the instruction under the

“course of conduct” theory, which ties with the sentencing

enhancements set forth in 18 Pa.C.S.[A.] §4304(b)(1)(ii)

and (iv). The draft instructions further included a special

interrogatory to the jury regarding whether, if [Appellant]

was found guilty on Count 7, the endangerment created a

“substantial risk of death or serious bodily injury.”

[Appellant] argued that because the Commonwealth had

charged the offense as a felony of the second degree, the

Commonwealth could only proceed on an “all or nothing”

basis, and could not seek the possibility of conviction on a

lesser degree of the offense. The Commonwealth

disagreed, and offered to amend the information to add the

lesser degree as a separate count. [T]he court overruled

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[Appellant]’s objection on the instruction….

After deliberation, the jury acquitted [Appellant] on Count 1

and convicted him on Counts 7 and 8. On the special

interrogatory, the jury found that the endangerment did not

create a substantial risk of death or serious bodily injury.

A little over a week after trial, [Appellant] contacted the

clerk of courts, requesting that [the docket sheet be

corrected] to show that [Appellant] was convicted of

endangering the welfare of a child as a misdemeanor, rather

than a felony of the second degree. When informed that the

grading was correct based on the orders entered by the

court, [Appellant] sent a letter to the court by facsimile,

setting forth why he believed the record needed to be

corrected with respect to the offense grading. The court

elected to treat the letter as a motion for extraordinary

relief, and notified the parties of the same….

Sentencing occurred on December 7, 2023. After hearing

argument from the parties, the court denied [Appellant’s]

motion for extraordinary relief and kept the offense grading

on Count 7 as a felony of the second degree. It then

sentenced [Appellant] as follows: [EWOC- 36-120 months’

incarceration; REAP- 6-24 months’ incarceration]. The

sentences were run consecutively, for a[n aggregate]

sentence of 42-144 months’ incarceration. The court

expressly acknowledged on the record that it was

sentencing outside of the sentencing guidelines, and

delineated its reasons for doing so.

(Trial Court Opinion, filed 2/26/24, at 1-6) (citations omitted).

On Monday, December 18, 2023, Appellant filed a timely post-sentence

motion, which the court denied on December 19, 2023. Appellant filed a

timely notice of appeal on December 29, 2023. On January 4, 2024, 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 on January 23,

2024.

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Appellant raises the following issues for our review:

Did the trial court commit an error of law in denying

[Appellant’s] request for suppression of video evidence

pursuant to 18 Pa.C.S. § 5721.1 in finding that the recorder

had reasonable suspicion to suspect that a “crime of

violence” had occurred to trigger the “crime exception”

pursuant to 18 Pa.C.S. § 5704(17)?

Did the trial court err as a matter of law in determining that

[EWOC] should be graded as a felony of the second degree

by finding that the grading enhancements under 18 Pa.C.S.

§§ 4304(b)(1)(ii) and 4304(b)(2) were proven beyond a

reasonable doubt when the jury was instructed under §

4304(b)(1)(iv) after the Commonwealth failed to inform the

court or defense counsel that it was not seeking a conviction

under that subsection?

Did the trial court abuse its discretion by failing to note

sufficient reasoning or cause on the record for a sentence

that exceeded the aggravated range as set forth by the

sentencing guidelines?

(Appellant’s Brief at 2-4).2

In his first issue, Appellant contends that the recordings Ms. Maines took

of Appellant were in violation of the Wiretap Act. Appellant argues that Ms.

Maines’ testimony at the suppression hearing failed to establish that she

reasonably believed Appellant was likely to injure Z.L.V., so the crime of

violence exception to the Wiretap Act did not apply here. Appellant notes that

Ms. Maines expressly testified that she did not see Appellant get physical with

Z.L.V. Additionally, Appellant asserts that Ms. Maines, who testified that she

____________________________________________

2 Appellant includes a fourth issue in his statement of questions presented but

states in the argument section that the issue is not being pursued on appeal.

(See id. at 21). Thus, we do not include the issue here or discuss it further.

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would have sought medical attention for Z.L.V. if she believed the child had

been injured, did not seek medical attention for Z.L.V. after the incidents she

recorded. Appellant claims that Ms. Maines’ testimony that she was concerned

about Appellant’s actions breaking the child’s bones was insufficient because

“no testimony was provided to justify [Ms. Maines’] belief that broken bones

would occur.” (Id. at 18). Appellant asserts that the court erroneously

inferred that Ms. Maines had reason to believe that Appellant was about to

engage in conduct that was likely to cause Z.L.V. serious bodily injury.

Appellant concludes that the court erred in finding that the recordings were

admissible pursuant to the crime of violence exception to the Wiretap Act, and

this Court should reverse the order denying Appellant’s motion to suppress.

We disagree.

The following principles govern our review of an order denying a

suppression motion:

An appellate court’s standard of review in addressing a

challenge to the denial of a suppression motion is limited to

determining whether the suppression court’s factual

findings are supported by the record and whether the legal

conclusions drawn from those facts are correct. Because

the Commonwealth prevailed before the suppression court,

we may consider only the evidence of the Commonwealth

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 suppression court’s factual findings are

supported by the record, the appellate court is bound by

those findings and may reverse only if the court’s legal

conclusions are erroneous. Where the appeal of the

determination of the suppression court turns on allegations

of legal error, the suppression court’s legal conclusions are

not binding on an appellate court, whose duty it is to

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determine if the suppression court properly applied the law

to the facts. Thus, the conclusions of law of the courts below

are subject to plenary review.

Commonwealth v. Ford, 175 A.3d 985, 989 (Pa.Super. 2017), appeal

denied, 647 Pa. 522, 190 A.3d 580 (2018).

This Court has explained that the Wiretap Act

is a pervasive scheme of legislation which suspends an

individual’s constitutional rights to privacy only for the

limited purpose of permitting law enforcement officials,

upon a showing of probable cause, to gather evidence

necessary to bring about a criminal prosecution and

conviction. The statute sets forth clearly and

unambiguously by whom and under what circumstances

these otherwise illegal practices and their derivative fruits

may be used.

Commonwealth v. Glass, 200 A.3d 477, 483 (Pa.Super. 2018), appeal

denied, 654 Pa. 507, 216 A.3d 226 (2019).

The Wiretap Act provides the following exception, which allows law

enforcement to utilize wiretaps without obtaining prior judicial approval:

§ 5704. Exceptions to prohibition of interception and

disclosure of communications

It shall not be unlawful and no prior court approval shall be

required under this chapter for:

* * *

(17) Any victim, witness or private detective licensed

under the act of August 21, 1953 (P.L. 1273, No. 361),

known as The Private Detective Act of 1953, to intercept the

contents of any wire, electronic or oral communication, if

that person is under a reasonable suspicion that the

intercepted party is committing, about to commit or has

committed a crime of violence and there is reason to believe

that evidence of the crime of violence may be obtained from

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the interception.

18 Pa.C.S.A. § 5704(17) (footnote omitted). The Wiretap Act contains a

definition for “crime of violence,” which includes “aggravated assault as

defined in section 2702(a)(1) or (2).” 18 Pa.C.S.A. § 5702(1)(ii).

Instantly, Ms. Maines testified at the suppression hearing that she was

watching Appellant through the baby monitor in Z.L.V.’s room. She began to

record the video feed with her tablet when she became concerned that

Appellant “wasn’t gentle in putting the baby down on the bed.” (N.T.

Suppression Hearing, 1/4/23, at 4). Specifically, Ms. Maines testified that

Appellant was not being gentle and she was concerned that as a result, the

child “might suffer some damage.” (Id.) When asked to elaborate, Ms.

Maines stated that she was worried that Appellant’s actions would “damage

[the child’s] bones and his speaking” because the child “was only seven

months” old at the time. (Id. at 5). She further stated that Appellant was

talking in a loud voice and that his actions weren’t “healthy for the newborn

baby.” (Id. at 6). When asked if Appellant was physical with the baby, she

testified, “Not really.” (Id.) Ms. Maines was testifying with the assistance of

an interpreter and the interpreter stated on the record multiple times that he

did not understand the specific word or verbiage that Ms. Maines was using.

Taking into account the difficulties in the translation process, the court

concluded:

The reasonable inference from [Ms. Maines’] statements is

that Ms. Maines was concerned that the degree of physical

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force and violence to which [Appellant] was subjecting

Z.L.V. could result in broken bones (and related injuries).

Such injuries fit squarely within the definition of “serious

bodily injury,” as required to qualify as aggravated assault

for the crime exception. Therefore, the court finds that the

Commonwealth has established that Ms. Maines reasonably

suspected that by recording the audio and video feed from

the baby monitor on her tablet, she would obtain evidence

that [Appellant] was about to commit, was committing, or

had committed … aggravated assault against Z.L.V.

(Findings of Fact and Opinion, filed 1/31/23, at 12-13).

The record supports the court’s findings. Ms. Maines testified that she

started recording Appellant because she observed him handling Z.L.V., who

was only seven months old at the time, in a rough manner. She further

indicated that Appellant was raising his voice and handling Z.L.V. in such a

way that she was fearful that the child would sustain damaged bones. Given

the child’s young age and extreme vulnerability to harm, we disagree with

Appellant’s position that Ms. Maines had to see Appellant act physically violent

with Z.L.V. in order to be reasonably concerned that the incident would

escalate to a situation where the child would be seriously injured. Additionally,

the trial court, who had the opportunity to observe the witness and the

translation process, attributed any discrepancies in Ms. Maines’ testimony as

to the degree of physicality Appellant exhibited towards Z.L.V., to the

“extremely limited and frustrating” translation process. (Id. at 12). Under

the totality of the circumstances, we agree with the court that it was

reasonable for Ms. Maines to be concerned that Appellant was about to commit

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a crime of violence against the child when she started recording.3 See 18

Pa.C.S.A. § 5702(1)(ii); 18 Pa.C.S.A. § 5704(17). Because the record

supports the suppression court’s conclusions, and its legal conclusions were

correct, Appellant is not entitled to relief on his first issue. See Ford, supra.

In his second issue, Appellant argues that in the information, the

Commonwealth charged Appellant with EWOC under 18 Pa.C.S.A. §

4304(a)(1), which is generally graded as a first-degree misdemeanor.

Appellant notes that the information charges Appellant with EWOC graded as

a second-degree felony but does not indicate which grading enhancement the

Commonwealth intended to apply to increase the grading. Appellant claims

____________________________________________

3 The court did not view the videos in question prior to ruling on Appellant’s

suppression motion. Having since viewed the videos, the court notes that

they provide further support to Ms. Maines’ testimony that Appellant was

behaving in a concerningly, aggressive manner immediately prior to the start

of the recording. The court describes the content of the videos as follows:

Briefly, they show Z.L.V. in his crib, crying, while [Appellant]

takes actions in an attempt to force Z.L.V. to be quiet and

go to sleep. On the mild end, [Appellant] repeatedly

screams at Z.L.V., at the top of his lungs to “shut up,” “go

to sleep,” “go the fuck to sleep,” etc. At one point, despite

obviously knowing that Z.L.V. is hungry, [Appellant]

screams, “You’re not getting any food you fucking fatass.”

[Appellant]’s actions are not only verbal though. He

repeatedly uses his hands to force Z.L.V. to lay flat on the

mattress and shoves Z.L.V. into the mattress facedown. At

one point, [Appellant] slaps Z.L.V. on the buttocks in an

apparent attempt to spank him, and at another he forcibly

shoves a pacifier into Z.L.V.’s mouth while Z.L.V. is crying.

On one occasion he literally slams Z.L.V. onto the mattress.

(Trial Court Opinion at 3 n.1).

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that because the Commonwealth never specified its theory for the increased

grading, Appellant and the court presumed that the Commonwealth was

proceeding under the grading enhancement set forth in 18 Pa.C.S.A. §

4304(b)(1)(iv), which increases the offense to a second-degree felony if

Appellant’s actions created a substantial risk of death or serious bodily injury

and was part of a course of conduct.

Appellant acknowledges that the Commonwealth generally indicated

during the charging conference that the grading would be increased one level

due to the age of the victim. Nevertheless, Appellant argues that the

Commonwealth failed to specify that it intended to apply the grading

enhancement set forth in Section 4304(b)(2), which increases the grading of

the offense if the victim is less than six years old. As such, Appellant insists

that he had no notice that the Commonwealth intended to seek the age

enhancement. Appellant further asserts that the sentence imposed for the

EWOC conviction was illegal pursuant to Apprendi v. New Jersey, 530 U.S.

466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), because the issue of whether

the victim was below the age of six was not submitted to the jury. Appellant

concludes that the court erred in grading his EWOC conviction as a second-

degree felony, and this Court should vacate the judgment of sentence and

remand for resentencing as a first-degree misdemeanor. We disagree.

“A challenge to the legality of sentence is a question of law; our standard

of review is de novo and our scope of review is plenary.” Commonwealth v.

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Hayes, 266 A.3d 679, 683 (Pa.Super. 2021).

A claim that implicates the fundamental legal authority of

the court to impose a particular sentence constitutes a

challenge to the legality of the sentence. If no statutory

authorization exists for a particular sentence, that sentence

is illegal and subject to correction. An illegal sentence must

be vacated. Likewise, a sentence that exceeds the statutory

maximum is illegal. If a court imposes a sentence outside

of the legal parameters prescribed by the applicable statute,

the sentence is illegal and should be remanded for

correction.

Commonwealth v. Infante, 63 A.3d 358, 363 (Pa.Super. 2013) (internal

citations and quotation marks omitted).

Pennsylvania Rule of Criminal Procedure 560 provides, in relevant part,

that a criminal information is sufficient if it contains “a plain and concise

statement of the essential elements of the offense substantially the same as

or cognate to the offense alleged in the complaint.” Pa.R.Crim.P. 560(B)(5).

“[T]he charging instrument must include those elements to put the defendant

on notice of the crime.” Commonwealth v. King, 660 Pa. 482, 503-04, 234

A.3d 549, 562 (2020). “[A] fact increasing the statutory maximum … must

be treated as an element.” Id. at 502, 234 A.3d at 561. Rule 560 further

provides that “[t]he information shall contain the official or customary citation

of the statute and section thereof, or other provision of law that the defendant

is alleged therein to have violated; but the omission of or error in such citation

shall not affect the validity or sufficiency of the information.” Pa.R.Crim.P.

560(C).

“Informations must be read in a common sense manner and are not to

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be construed in an overly technical sense. The purpose of the information is

to provide the accused with sufficient notice to prepare a defense, and to

ensure that he will not be tried twice for the same act.” Commonwealth v.

Bickerstaff, 204 A.3d 988, 995 (Pa.Super. 2019), appeal denied, 655 Pa.

509, 218 A.3d 862 (2019) (citation omitted). “Variations between allegations

and proof at trial are not fatal unless a defendant could be misled at trial,

prejudicially surprised in efforts to prepare a defense, precluded from

anticipating the prosecution’s proof, or otherwise impaired with respect to a

substantial right.” Id.

Additionally, in Apprendi, the United States Supreme Court determined

that “any fact that increases the penalty for a crime beyond the prescribed

statutory maximum must be submitted to a jury and proved beyond a

reasonable doubt.” Apprendi, supra at 490, 120 S.Ct. at 2362-63. The

Court further explained that “the ‘statutory maximum’ for Apprendi purposes

is the maximum sentence a judge may impose solely on the basis of the facts

reflected in the jury verdict or admitted by the defendant.” Cunningham v.

California, 549 U.S. 270, 283, 127 S.Ct. 856, 865, 166 L.Ed.2d 856 (2007).

Accordingly, this Court has concluded that there is no Apprendi violation

when the court imposes a sentence based on facts that the defendant has

admitted. See Commonwealth v. Johnson, 961 A.2d 877, 881-82

(Pa.Super. 2008), appeal denied, 600 Pa. 774, 968 A.2d 1280 (2009).

Moreover:

[I]t has long been the rule in this Commonwealth that

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counsel represent their client and their admissions are prima

facie his admissions. Certainly so even in criminal cases

when made in his presence and to the jury. In trials for

felony, admissions of fact which the government is bound to

prove are not permitted unless made at the trial in open

court by the prisoner or his counsel.

Id. at 882 (citations and quotation marks omitted).

Instantly, the criminal information charged Appellant with EWOC, citing

18 Pa.C.S.A. § 4304(a)(1). Section 4304 provides, in relevant part:

§ 4304. Endangering welfare of children

(a) Offense defined.—

(1) 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, commits an offense

if he knowingly endangers the welfare of the child by

violating a duty of care, protection or support.

* * *

(b) Grading.—

(1) Except as provided under paragraph (2), the

following apply:

(i) An offense under this section constitutes a

misdemeanor of the first degree.

(ii) If the actor engaged in a course of conduct of

endangering the welfare of a child, the offense

constitutes a felony of the third degree.

(iii) If, in the commission of the offense under

subsection (a)(1), the actor created a substantial risk

of death or serious bodily injury, the offense

constitutes a felony of the third degree.

(iv) If the actor’s conduct under subsection (a)(1)

created a substantial risk of death or serious bodily

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injury and was part of a course of conduct, the offense

constitutes a felony of the second degree.

(2) The grading of an offense under this section shall be

increased one grade if, at the time of the commission of

the offense, the child was under six years of age.

* * *

18 Pa.C.S.A. §4304.

Here, the court determined that the information was sufficient because

it adequately put Appellant on notice of the Commonwealth’s intention to seek

the grade enhancement set forth in Section 4303(b)(2). The court explained:

The criminal information graded [the EWOC charge] as a

felony of the second degree. This left only two possibilities

for the precise offense the Commonwealth was alleging

occurred. The first is that [Appellant] committed the offense

by engaging in a course of conduct that created a

substantial risk of death or serious bodily injury, as set forth

in [Section] 4304(b)(1)(iv). The second was that

[Appellant] committed the offense by engaging in a course

of conduct and the Commonwealth proved that Z.L.V. was

under six years of age, as set forth between the combination

of [Sections] 4304(b)(1)(ii) and 4303(b)(2).

(Trial Court Opinion at 13).

We agree with the court’s analysis. The Commonwealth specified in the

information that it was charging Appellant with EWOC as a second-degree

felony. This put Appellant on notice that the Commonwealth intended to seek

the grade enhancements set forth in Section 4304(b) which would result in

the charge being graded as a second-degree felony. See Pa.R.Crim.P. 560(C).