Com. v. Baker, J.

J-S01006-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JACQUELYN NICOLE BAKER A/K/A :
JACQUELYN NICOLE HALL :
: No. 144 MDA 2023
Appellant :

Appeal from the Judgment of Sentence Entered August 5, 2022
In the Court of Common Pleas of Union County
Criminal Division at No(s): CP-60-CR-0000244-2020

BEFORE: PANELLA, P.J.E., KUNSELMAN, J., and COLINS, J.*

MEMORANDUM BY PANELLA, P.J.E.: FILED APRIL 15, 2024

Jacquelyn Baker appeals the judgment of sentence imposed by the

Union County Court of Common Pleas after a jury convicted her of, inter alia,

rape and incest. The victim was Baker’s adopted son, G.B., who was 14 years

old at the time of the criminal conduct. Baker argues on appeal that the trial

court abused its discretion by admitting prior bad act evidence pursuant to

Pa.R.E. 404(b) and by imposing an excessive sentence. She also asserts the

verdict was against the weight of the evidence. These claims warrant no relief,

and we therefore affirm the judgment of sentence.

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
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This case originated from a ChildLine report involving Baker and G.B.1

The report eventually led the Commonwealth to charge Baker with four counts

related to an incident in 2018 involving Baker and G.B. when G.B. was 14

years old and Baker was in her 30s. Those four counts were: rape by forcible

compulsion, statutory sexual assault of a complainant under 16 years of age

and the perpetrator is 11 or more years older than the complainant, incest

where the complainant is 13 to 18 years of age and indecent assault of a

person less than 16 years of age and the perpetrator is four or more years

older than the complainant. The matter proceeded to a one-day jury trial.

On the morning of trial, defense counsel made an oral motion objecting

to the Commonwealth introducing a June 6, 2019, Child Advocacy Center

interview with G.B. Defense counsel argued the prior bad acts contained in

the interview were inadmissible under Pa.R.E. 404(b). After argument on the

oral motion, the trial court denied the motion.

The Commonwealth first called G.B. to testify. G.B. testified that Baker

had married his father and adopted G.B. G.B. recounted that he moved in with

Baker, whom he called Mom, sometime in the beginning of the school year in

2018, when he was 14 years old. See N.T. 3/24/2022, at 51. G.B. told the

jury that, after moving in with her, Baker started to grab his buttocks and

____________________________________________

1 The Child Protective Services Law created a statewide database of services

known as the ChildLine Registry. See 23 Pa. C.S.A. §6331. Among other
things, the ChildLine Registry contains reports of suspected child abuse. See
id.

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come into the bathroom to watch him take a shower. See id. at 57-58. One

time, when Baker came into the bathroom while G.B. was showering, Baker

told G.B. she wished he was her boyfriend. See id. at 58.

G.B. testified Baker would also enter his bedroom and rub his thigh. See

id. at 59. G.B. stated that, one night, Baker came into G.B.’s bedroom and

fondled his penis. See id. at 61. G.B. told her to stop, but Baker told him to

shut up and slapped him. See id. According to G.B., Baker proceeded to

straddle him, pull his penis out of his underwear, and have sexual intercourse

with him. See id. at 61-62. G.B. maintained that he told Baker to stop, but

she slapped him again. See id. at 62-63. He testified he also tried to push

Baker off him, but he was not successful. See id. at 66.

The Commonwealth also called Stacy Brightbill, who conducted the Child

Advocacy Center interview with G.B. on June 6, 2019, to the stand. The

Commonwealth played the video recording of the interview for the jury. It also

submitted the transcript of the interview as an exhibit. The transcript reflects

that during the interview, G.B. told Brightbill that Baker had come into the

bathroom when he was showering, had rubbed his thigh and had grabbed his

buttocks and genitals. G.B. did not, however, disclose anything about the

rape. See Recorded Interview of [G.B.] on June 6, 2019, at 11-14, 16-18.

Mark Bailey, who was a detective at the Mifflinburg Police Department

at the relevant time, also testified. Detective Bailey stated that a ChildLine

report was made in August 2020 concerning G.B. and that he was assigned

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the case. Detective Bailey contacted Diane Buch at Children and Youth

Services and the two scheduled a Child Advocacy Center interview for G.B. on

August 27, 2020. See N.T., 3/24/2022, at 95-96.

Detective Bailey observed the interview through one-way glass. See id.

at 96. During the interview, G.B. denied the allegations he had made against

Baker. See id. However, once the interviewer left the interview room,

Detective Bailey observed G.B. become very emotional and testified that G.B.

just “began sobbing.” Id. at 97. G.B. stated that he wanted to end the

interview and leave. See id. G.B. left.

Because G.B. had become so emotional, the detective and Buch

arranged for a follow-up interview with G.B. on the afternoon of August 27.

Detective Bailey conducted this interview. At the interview, G.B. confirmed

that Baker had, in fact, rubbed his thigh and fondled his genitals. See id. at

101. He further disclosed that in November or December of 2018, Baker

entered his bedroom, rubbed his penis and then inserted his penis into her

vagina. See id. at 101, 103. G.B. also told the detective that Baker had

slapped his face twice during this encounter. See id. at 105.

The Commonwealth also called Jo Ellen Bowman as an expert in child

behavioral responses in sexual assault cases. See id. at 131. Bowman

testified generally as to the various timing and ways children may disclose

incidents of sexual abuse. She stated it is not uncommon for children who

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have suffered sexual assault to recant their allegations, and that it is not

uncommon for male victims not to report sexual assault. See id. at 140, 142.

The jury convicted Baker of all four counts that had been lodged against

her. The court ordered a pre-sentence investigation (“PSI”) report and

following a sentencing hearing, the court sentenced Baker to an aggregate

sentence of eight to 25 years’ incarceration. The court sentenced Baker to

standard range sentences for the incest, statutory sexual assault and indecent

assault convictions. However, the court found aggravating circumstances on

the rape conviction, namely that the rape was of Baker’s adopted child, and

consequently sentenced her in the aggravated range for the rape conviction.

Baker filed a post-sentence motion, which the court denied. She then filed

a notice of appeal. Both Baker and the trial court complied with Pa.R.A.P.

1925. Baker raises the following issues on appeal:

1. Did error [occur] where the court overruled the defense’s
Pa.R.E. 404 objection as the Commonwealth did not comport
with the version of the rule in effect at the time or the version
in effect shortly thereafter?

2. Was the verdict against the weight of the evidence in light of
the lack of physical evidence, inconsistent victim statements
and testimony regarding victim recantation?

3. Was there error in sentencing where the punishment was
higher than that recommended by the Commonwealth and the
Union County Probation Department?

Appellant’s Brief at 5 (suggested answers omitted).

In her first claim, Baker alleges the trial court improperly denied her oral

motion to preclude the Commonwealth from presenting, pursuant to Pa.R.E.

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404(b), the prior bad act evidence contained in the June 6, 2019, Brightbill

interview. Baker argues the Commonwealth did not provide written notice of

its intent to introduce the prior bad act evidence and it should have been

excluded for that reason alone. She also argues the court did not conduct an

analysis balancing the probative value of the alleged bad acts against its

potential for unfair prejudice before ruling the evidence was admissible. This

claim fails.

Baker first complains the Commonwealth failed to provide proper notice

of its intent to introduce the prior bad act evidence contained in the interview

because it did not give written notice of this intent. This contention is without

merit.

Rule 404(b) has a notice requirement. At the time of Baker’s trial, the

version of Rule 404(b)(3) in effect required the Commonwealth to give

“reasonable notice in advance of trial” of its intent to introduce prior bad act

evidence at trial. Pa.R.E. 404(b)(3) (effective from March 18, 2013 until March

31, 2022). More specifically, that version of Rule 404(b)(3) provided:

In a criminal case the prosecutor must provide reasonable notice
in advance of trial, or during trial if the court excuses pretrial
notice on good cause shown, of the general nature of any such
evidence the prosecutor intends to introduce at trial.

Id.; See Commonwealth v. Leaner, 202 A.3d 749, 777 (Pa. Super. 2019).

As Baker points out, Rule 404(b)(3) was amended on December 2, 2021

to require the Commonwealth to provide “reasonable written notice in advance

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of trial” of its intent to introduce such prior bad act evidence at trial. This

amended and current version of Rule 404(b)(3) provides in full:

In a criminal case the prosecutor must provide reasonable written
notice in advance of trial so that the defendant has a fair
opportunity to meet it, or during trial if the court excuses pretrial
notice on good cause shown, of the specific nature, permitted use,
and reasoning for the use of any such evidence the prosecutor
intends to introduce at trial.

Pa.R.E. 404(b)(3).

This amended version of the Rule, however, did not go into effect until

April 1, 2022, which was one week after Baker’s trial.

Despite this effective date, Baker asserts the amended Rule should have

applied to her case and the Commonwealth should have been required to give

her written notice of its intent to introduce prior bad act evidence from the

Brightbill interview under Rule 404(b)(3). This argument is specious. The

effective date of the amended Rule is just that: the date the amended Rule

became effective, in this case April 1, 2022. There is no indication that the

amended Rule was meant to apply at some point prior to its effective date of

April 1, 2022, and Baker cites no caselaw which would support such a

retroactive application.

The version of Rule 404(b)(3) in effect at the time of Baker’s trial and

during discovery of this matter did not require written notice. See Leaner,

202 A.3d at 777 (stating that under the version of Rule 404(b)(3) in effect

prior to April 1, 2022, there was no requirement that Rule 404(b)(3) notice

be formally given or be in writing).

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Instead, the version of the Rule in effect at the relevant time required

the Commonwealth to give reasonable notice of the general nature of the prior

bad act evidence found in the Brightbill interview it intended to introduce. As

the trial court noted, Baker did not dispute that the Commonwealth provided

her with a copy of the transcript of the Brightbill interview and a witness list

that included Brightbill’s name to Baker during discovery. See Trial Court

Opinion, 7/10/2023, at 3 (unpaginated). The trial court found this constituted

reasonable notice to the defense of the general nature of the evidence it

planned to introduce “well in advance of trial.” N.T., 3/24/2022, at 31.

Given this conclusion, the court denied Baker’s motion to preclude the

introduction of the Brightbill interview on the basis that the Commonwealth

failed to provide proper notice under the applicable version of Rule 404(b)(3).

We see no error in this determination, and Baker’s cursory assertions to the

contrary do not persuade us otherwise. See Leaner, 202 A.3d at 777 (stating

that the purpose of Rule 404(b)(3) is to give notice to the defendant to prevent

unfair surprise and reasonable time to prepare an objection or rebuttal to the

evidence and holding that the notice requirement under the version of Rule

404(b)(3) in effect prior to April 1, 2022 was satisfied when the prior bad act

evidence was provided during discovery).

Baker also argues, for the first time, that the court erred in admitting

the Brightbill interview because the court did not conduct an analysis finding

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that the probative value of the content of the interview outweighed its

potential for unfair prejudice. This argument also fails.

As a threshold matter, we find this argument is waived. Baker did not

include this argument in her Rule 1925(b) statement of errors complained of

on appeal. Rather, she asserted there, as she does in her statement of

questions involved in her appellate brief, that the Commonwealth “did not

comport with the version of [Rule 404(b)(3)] in effect at the time or the

version in effect shortly thereafter,” which clearly references the argument

she made above. Defendant’s Statement of Errors Complained of on Appeal,

2/2/2023, at 1. She did not mention or allude to any alleged failure by the

trial court to conduct the balancing test referenced above. Understandably,

the trial court did not address any such argument, instead stating that the

“sole issue [in Baker’s Rule 404(b) claim] turned on whether the

Commonwealth provided ‘written notice’ in advance of trial.” Trial Court

Opinion, 7/10/2023, at 3 (unpaginated). Given these circumstances, Baker

has waived this claim. See Commonwealth v. Lord, 719 A.2d 306, 309 (Pa.

1998) (holding that any issues not raised in a Rule 1925(b) statement are

waived). She also did not include this argument when she objected to the

evidence at the time of trial.

Even if not waived, Baker’s claim that the trial court did not conduct the

proper analysis before admitting the prior bad act evidence lacks merit.

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We review a trial court’s decision to admit evidence for an abuse of

discretion or error of law. See Leaner, 202 A.3d at 777. When evidence

involves “a crime, wrong, or other act,” it is inadmissible to prove a person’s

character in order to show that the person acted in accordance with that

character. Pa.R.E. 404(b)(1). Such evidence may be admissible, however,

when relevant for another purpose such as proving motive, preparation, or

plan. See Pa.R.E. 404(b)(2). It is only admissible for such a purpose in

criminal cases, though, when the trial court determines that the probative

value of the evidence outweighs its potential for unfair prejudice. See id. In

this context, unfair prejudice means a “tendency to suggest decision on an

improper basis or to divert the jury’s attention away from its duty of weighing

the evidence impartially.” Pa.R.E. 403 cmt.

Here, during the argument regarding Baker’s oral motion, the

Commonwealth told the court that it planned to introduce the evidence of

Baker’s prior acts in the Brightbill interview to show how Baker groomed G.B.

The trial court specifically found that “obviously[,] grooming is preparation

and plan. So it clearly would be admissible under Rule 404(b).” N.T.,

3/24/2022, at 26. The court also specifically noted that this prior bad act

evidence was only admissible if the probative value of the evidence

outweighed its potential for unfair prejudice, which the court stated clearly

applied here. See id. at 19. Therefore, contrary to Baker’s assertions, the trial

court did find the Commonwealth sought to introduce the evidence for a

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permitted and legitimate purpose and did conduct a balancing test which

resulted in its conclusion that the probative value of the evidence outweighed

the potential for unfair prejudice.

Although Baker argues only that the trial court did not conduct the

balancing test at all, and therefore does not argue the trial court erred by

concluding the probative value of the challenged evidence outweighed the

potential for prejudice, we note that we do not discern any such error on the

trial court in this regard. As such, even if this issue were not waived, it would

offer no basis for relief.

Next, Baker argues the verdict was against the weight of the evidence

given that G.B. recanted his allegations during one interview. This claim is

also without merit.

This Court’s review of a weight claim ruled on by the trial court is not a

reevaluation of the underlying question of whether the verdict was against the

weight of the evidence. See Commonwealth v. Champney, 832 A.2d 403,

408 (Pa. 2003). Rather, our review of such a claim is limited to whether the

trial court palpably abused its discretion in determining that the verdict was

not against the weight of the evidence. See id.

A trial court will only grant a new trial on the basis that the verdict was

against the weight of the evidence when the verdict is so contrary to the

evidence as to shock one’s sense of justice. See Commonwealth v. Smith,

181 A.3d 1168, 1187 (Pa. Super. 2018). It is exclusively within the province

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of the jury to assess the credibility of witnesses and resolve contradictory

testimony. See Commonwealth v. Delmonico, 251 A.3d 829, 837 (Pa.

Super. 2021).

Here, in rejecting Baker’s weight claim, the trial court stated:

The victim in this matter testified that [Baker] came into his
bedroom while he was living in her residence, began fondling him,
extracted his penis from his boxer shorts, straddled him and
inserted his penis into her vagina.

***

While there was other testimony throughout the trial
regarding the victim’s statements, these were explained in part
by the testimony of the Commonwealth’s expert, Jo Ellen
Bowman.

Regardless, it is obvious the jury believed the testimony of
the victim and the victim’s testimony alone is sufficient to support
the jury’s verdict.

Trial Court Opinion, 7/10/2023, at 3-4 (unpaginated).

We find no palpable abuse of discretion in the trial court’s determination.

While Baker argues the jury should not have believed G.B. because of his

recantation in one interview and because he is a “liar,” and instead should

have believed the defense witness who testified G.B. admitted he had lied

about the assault, this argument ignores the fact that it is within the sole

province of the jury to assess the credibility of witnesses. See Delmonico,

251 A.3d at 837. Therefore, no relief is due.

In her last claim, Baker argues the trial court abused its discretion by

imposing an excessive sentence. This final claim also offers no basis for relief.

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As with all appellants who challenge the discretionary aspects of their

sentence, Baker is not unconditionally entitled to review of such a claim. See

Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013). To the

contrary, this Court will only review a discretionary sentencing claim if the

appellant has shown she filed a timely notice of appeal, properly preserved

her claim at sentencing or in a post-sentence motion, included a statement

pursuant to Pa.R.A.P. 2119(f) in her brief, and raised a substantial question

that her sentence is not appropriate under the Sentencing Code. See id.

Although Baker offers only a skeletal Rule 2119(f) statement that

borders on insufficient, the Commonwealth does not object to the statement,

and we ultimately find that Baker met the first three requirements. However,

we agree with the Commonwealth that Baker has not raised a substantial

question.

A substantial question is one where the appellant advances a colorable

argument that the sentencing court’s actions were either inconsistent with a

specific provision of the Sentencing Code or contrary to the fundamental

norms underlying the sentencing process. See id. As the Commonwealth

points out, this Court has held that a claim that a sentence was excessive,

such as the one raised by Baker here, does not raise a substantial question

where the sentence is within the statutory limits. See Commonwealth v.

Jones, 613 A.2d 587, 593 (Pa. Super. 1992) (en banc). As once again pointed

out by the Commonwealth, Baker does not dispute her sentence was within

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the statutory limits and her excessiveness claim therefore fails to raise a

substantial question.

Even if we were to find that Baker raised a substantial question for our

review, we would find no merit to her claim that the trial court abused its

discretion in sentencing her.

Baker’s sole challenge to the court’s sentence is her summary complaint

that her sentence was excessive as it was greater than the “suggestions”

made by the Probation Department and the recommendation made by the

Commonwealth. Appellant’s Brief at 15. Baker does not cite to any case law

in support of this contention or make any attempt to dispute the trial court’s

explicit admonishment that, contrary to Baker’s assertions, it was “not bound

by any recommendation of a party or the Probation Department” when

formulating Baker’s sentence. Trial Court Opinion, 7/10/2024, at 4

(unpaginated).

Instead, the Sentencing Code instructs sentencing courts to consider

“the protection of the public, the gravity of the offense as it relates to the

impact on the life of the victim and on the community, and the rehabilitative

needs of the defendant” when deciding the sentence to impose on a particular

defendant. 42 Pa. C.S.A. 9721(b). The balancing of these Section 9721(b)

factors is within the sole province of the sentencing court. See

Commonwealth v. Lekka, 210 A.3d 343, 353 (Pa. Super. 2019).

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Baker has simply failed to establish that the trial court abused its

discretion when sentencing her. See id. at 350 (stating that this Court will

only disturb a sentence when we find the sentencing court committed a

manifest abuse of discretion). This is especially true given that the trial court

highlighted the fact that it imposed the sentence that it did after considering

the crime was perpetrated on Baker’s own child, that Baker showed no

remorse, and that the court had ordered and considered a PSI report. See

Trial Court Opinion, 7/10/2023, at 4 (unpaginated); Commonwealth v.

Zeigler, 112 A.3d 656, 662 (Pa. Super. 2015) (stating that when a court

considers a PSI report, it is presumed that the court properly considered all

relevant aggravating and mitigating factors). Once again, we find that no relief

is due.

Judgment of sentence affirmed.

Judgment Entered.

Benjamin D. Kohler, Esq.
Prothonotary

Date: 04/15/2024

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