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HomeMy WebLinkAbout02-1729 CRIMINALCOMMONWEALTH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. ANTHONY THOMAS OTN: L128966-5 NO. 02-1729 CRIMINAL TERM IN RE: OPINION PURSUANT TO PA. R.A.P. 1762(0 OLER, J., October 8, 2002. IN this criminal case in which a four-year-old child of Defendant was allegedly discovered in a grotesquely emaciated condition by a county children's services agency, Defendant was charged with endangering the welfare of a child, a felony of the third degree. ~ After being hospitalized, the child died.2 Following a preliminary hearing, the case was bound over for court.3 Several motions were then filed on behalf of Defendant with this court, including a motion for reduction of bail, which had been set at $100,000.4 A hearing on the motion was held on August 15, 2002. Following the hearing, the motion for reduction of bail was denied by order of court dated and docketed August 16, 2002.5 From this denial, Defendant, on September 27, 2002, filed a petition for review in the Superior Court pursuant to Pennsylvania Rule of Appellate Procedure 1762(a)(2).6 ~ Police Criminal Complaint, filed July 27, 2002, Commonwealth v. Thomas, No. CR-416-02 (Pa. Magis. D. 09-2-01 Aug. 7, 2002). See Commonwealth's Ex. 1, at 3, Hearing, August 15, 2002 (preliminary hearing transcript and exhibits) (hereinafter N.T. ~ Preliminary Hearing; Com. Ex. ___, Preliminary Hearing). 2 N.T. 21, 55, 59, 71, Preliminary Hearing. 3 N.T. 76, Preliminary Hearing. Formal arraignment is scheduled for Oct. 22, 2002. See Defendant's Motion To Dismiss Prosecution/Compel Discovery, filed Sept. 24, 2002, paragraph 3. 4 Defendant's Motion To Reduce Bail, filed Aug. 8, 2002. 5 Order of Court, Aug. 16, 2002. 6 Defendant's Petition for Review, filed Sept. 27, 2002, Thomas v. Oler, No. 73 MDM 2002 (Pa. Super. Ct. Sept. 27, 2002). This opinion in support of the order declining to reduce Defendant's bail is written pursuant to Pennsylvania Rule of Appellate Procedure 1762(0. STATEMENT OF FACTS As the result of a report to Cumberland County Children and Youth Services that one of the children of Defendant and his spouse was malnourished,7 an investigation was conducted by the agency and police, and a felony charge of endangering the welfare of a child was filed against Defendant.8 The affidavit of probable cause accompanying the complaint supported the charge as follows: 1. Your affiant is Detective Thomas A. Kibler of the North Middleton Township Police Department. 2. On 17 July 2002, a referral was made by Childline to the Cumberland County Child and Youth Services regarding the mistreatment of a 4 year old male child who resided at 1113 Trindle Rd. in North Middleton Township in Cumberland County, Pennsylvania. The mistreatment described this child as malnourished and very thin. 3. On 23 July 2002, Cumberland County Children and Youth Worker Jill Olon responded to 1113 Trindle Rd. in North Middleton Township after making an appointment and met with a Shenique Thomas [Defendant's spouse]. Olon advised Thomas of the referral and inquired as to her children. Shenique Thomas stated she was the mother of four girls and one boy. The boys name was Anthony Qunicy Thomas and he was four years old. Thomas then stated that none of the children were home but allowed Olon to view a photograph which Thomas said was her four year old son Anthony Qunicy Thomas. The photo was of a healthy male child. 4. On 24 July 2002, Jill Olon made contact with the Thomas family. Olon described the Anthony Quincy Thomas as very underweight and took the child to the Carlisle The timeliness of this filing is beyond the scope of this opinion. But see Pa. R.A.P. 1512(a)(1), 1762(a)(2). In captioning the petition for review, Defendant apparently attempted to follow Pennsylvania Rule of Appellate Procedure 1513 (b). 7 N.T. 50-52, Preliminary Hearing. 8 N.T. 4-22, 30-46, Preliminary Hearing. 2 emergency room. Carlisle Emergency room physician Lynn Hoffman stated the childs medical condition was that he is profoundly undernourished. Anthony Quincy Thomas weighed 20 pounds and was 28 3/4 inches long and had a distended stomach. In addition, Anthony Quincy Thomas was found to have at least two broken ribs. Anthony Quincy Thomas was admitted to Carlisle Hospital and transported to Hershey Medical Center. 5. On 27 July 2002, a search warrant was served at 1113 Trindle Rd. in North Middleton Township. The residence was vacant. Living conditions in the upstairs bedroom of Anthony Quincy Thomas showed urine and fecal material all about the floor. The toilet facility was filled with fecal material. There was a child bed frame and child mattress with no sheets or blankets. The only seen toy, a teddy bear, was covered with fecal residue. 6. Shenique Thomas told Children and Youth Services and medical personnel at the Carlisle Hospital that she had a previous male child named Anthony E. Thomas, who died at 7 months of age from what Shenique Thomas claimed was a SIDS death. Both Sehnique Thomas and her husband Anthony Thomas told Jill Olon that they are the sole care givers of Anthony Quincy Thomas.9 The child died shortly after being hospitalized, l0 At a preliminary hearing held on August 7, 2002, before the Honorable Paula Correal, District Justice, the Commonwealth presented evidence tending to show, inter alia, that Defendant's spouse had displayed a photograph of a healthy child to a children and youth caseworker investigating the report and falsely represented the picture to be that of her son,~ that she misrepresented the age of her son to be three rather than four years old,~2 that she characterized the report of 9 Police Criminal Complaint, filed July 27, 2002, Commonwealth v. Thomas, No. CR-416-02 (Pa. Magis. D. 09-2-01 Aug. 7, 2002). l0 N.T. 21, 55, 59, 71, Preliminary Hearing. ~ N.T. 36, Preliminary Hearing; Com. Ex. 4, Preliminary Hearing. ~2 N.T. 42, Preliminary Hearing. 3 malnourishment as "bullshit,''~3 that she falsely reported receipt of past medical care by the child,TM that she concealed the child's room (and possibly his presence) from the caseworker,~5 that she characterized the child as "lazy,''~6 that when the child was eventually seen by the caseworker she (Defendant's spouse) described him as "hairy as shit,''~7 that Defendant and his spouse claimed that the child had, on the day he was seen, consumed five packets of oatmeal, a sandwich, two bottles of Gatorade, fruit candy, several "Icees," and two "Blow Pops,''~8 and that Defendant told the caseworker that he would not pay to have the child seen by a doctor.~9 Pictures of the child prior to his death and from the autopsy showed a grotesquely emaciated little boy, with excess facial, back and arm hair.2° The Commonwealth's evidence at the preliminary hearing also tended to show that the four-year-old child weighed 20 pounds,2~ that he was grossly underweight and underheight,~ that his temperature was 95.3 and he was suffering from hypothermia,~3 that his body displayed bruises,~4 that he had excess hair growth known as Lanugo hair, which was consistent with starvation,25 that his stomach was profoundly distended,~6 that his condition would have taken months ~3 N.T. 35, Preliminary Hearing. ~4 N.T. 35, 39, Preliminary Hearing. ~5 N.T. 19, 33, 38, Preliminary Hearing. 16 N.T. 37, Preliminary Hearing. ~7 N.T. 42, Preliminary Hearing. ~8 N.T. 45, Preliminary Hearing. 19 N.T. 44, Preliminary Hearing. 2o Com. Exs. 1-2, 15-16, Preliminary Hearing. 2~ N.T. 62, Preliminary Hearing. 22 N.T. 42, Preliminary Hearing. 23 N.T. 65, Preliminary Hearing. 24 N.T. 63, Preliminary Hearing. 25 N.T. 63-64, Preliminary Hearing. 26 N.T. 43, Preliminary Hearing; Com. Ex. 1, Preliminary Hearing. 4 to develop,27 and that he had suffered two broken ribs.28 At the conclusion of the preliminary hearing, the district justice bound the case over for court and denied Defendant's request that bail, in the amount of $100,000, be reduced.~9 Defendant then filed with this court a petition for writ of habeas corpus,3° a motion to reduce bail,3~ and an "Emergency Petition To Prevent an Ongoing Due Process Violation.''3~ A hearing on these motions was held by the writer of this opinion on August 15, 2002. At the hearing, evidence was presented tending to show that Defendant had prior convictions in New Jersey for drug possession and aggravated assault with a weapon,33 that he had not disclosed his Cumberland County address to his parents,34 that his relationships with relatives other than his spouse and children were largely nonexistent, 35 that his surviving children were residing at locations unknown to him,36 that his spouse was incarcerated,37 that his Cumberland County residence had become, at least temporarily, unavailable to him,38 that he had lived at and/or worked at and/or used numerous addresses in at least five different states in the last nine years,39 that notwithstanding his residence and employment in 27 N.T. 67, Preliminary Hearing. 28 N.T. 74-75, Preliminary Hearing. 29 N.T. 76-77, Preliminary Hearing. 30 Defendant's Petition for Writ of Habeas Corpus, filed Aug. 8, 2002. 3~ Defendant's Motion To Reduce Bail, filed Aug. 8, 2002. 32 Defendant's Emergency Petition To Prevent Ongoing Due Process Violation, filed Aug. 9, 2002. This petition related to preservation of handwritten notes of a Cumberland County Children and Youth Services caseworker. 33 N.T. 52, Hearing, Aug. 15, 2002. 34 N.T. 49-50, Hearing, Aug. 15, 2002. 35 N.T. 48-54, Hearing, Aug. 15, 2002. 36 N.T. 53, Hearing, Aug. 15, 2002. 37 N.T. 53, Hearing, Aug. 15, 2002. 38 N.T. 55, Hearing, Aug. 15, 2002. 39 N.T. 44-50, Hearing, Aug. 15, 2002. 5 Cumberland County since October of 200040 he was not enrolled with the local tax collector,4~ that his initial employer in Cumberland County had been under the impression that his name was Trey Thomas when it offered him employment,42 and that a search of a data base used by law enforcement officials revealed two similar, but not identical, social security numbers under his name.43 Defendant, who had retained private counsel, offered no evidence as to his assets, income, or ability or lack of ability to secure his release on the bail set.44 Defendant testified that if released he felt he could reside and work in an office in Cumberland County which he had been renting for his electronics business.45 He also said that he was under the impression that his criminal convictions had been expunged "because of the circumstances.''46 At the conclusion of the hearing, the court took the matter of bail, inter alia, under advisement.47 By subsequent order, dated and docketed August 16, 2002, Defendant's motion for reduction of bail, as set at $100,000, was denied.4a On September 27, 2002, Defendant filed a petition for review of the August 16, 2002, order in the Pennsylvania Superior Court.49 4o N.T. 50, Hearing, Aug. 15, 2002. 4~ N.T. 70-71, Hearing, Aug. 15, 2002. 4: N.T. 39-41, Hearing, Aug. 15, 2002; Com. Exs. 1-2, Hearing, Aug. 15, 2002. 43 N.T. 66, Hearing, Aug. 15, 2002. 44 According to testimony at the preliminary hearing, Defendant and his spouse drove a Mercedes Benz and a Ford Bronco II. N.T. 21, Preliminary Hearing. Defendant described the business he ran as "lucrative" in comparison to two other franchises of the same type. N.T. 36, Hearing, Aug. 15, 2002. 45 N.T. 36, 55, Hearing, Aug. 15, 2002. 46 N.T. 53, Hearing, Aug. 15, 2002. 47 Order of Court, Aug. 15, 2002. 48 Order of Court, Aug. 16, 2002. 49 Defendant's Petition for Review, filed Sept. 27, 2002, Thomas v. Oler, No. 73 MDM 2002 (Pa. Super. Ct. September 27, 2002). 6 DISCUSSION Under the Eighth Amendment to the Federal Constitution, it is provided that "[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." U.S. Const. amend. VIII. Under Section Fourteen of Article One of the Pennsylvania Constitution, it is provided that "[a]ll prisoners shall be bailable by sufficient sureties, unless for capital offenses or for offenses for which the maximum sentence is life imprisonment or unless no condition or combination of conditions other than imprisonment will reasonably assure the safety of any person and the community when the proof is evident or presumption great." Pa. Const. art. 1, § 14. The basic purpose of bail is to assure the defendant's appearance at subsequent proceedings." Pa. R. Crim. P. 523(A). The determination of the amount of bail which is appropriate in a given case is a matter within the sound discretion of the trial court. Ruckinger v. Weicht, 356 Pa. Super. 455, 458-59, 514 A.2d 948, 949 (1986). Under Pennsylvania Rule of Criminal Procedure 523(A), factors to be considered by the court in determining the proper amount of bail are: (1) the nature of the offense charged and any mitigating or aggravating factors that may bear upon the likelihood of conviction and possible penalty; (2) the defendant's employment status and history, and financial condition; (3) the nature of the defendant's family relationships; (4) the length and nature of the defendant's residence in the community, and any past residences; (5)the defendant's age, character, reputation, mental condition, and whether addicted to alcohol or drugs; (6) if the defendant has previously been released on bail, whether he or she appeared as required and complied with the conditions of the bail bond; (7) whether the defendant has any record of flight to avoid arrest or prosecution, or of escape or attempted escape; 7 (8) the defendant's prior record; (9) any use of false identification; and (10) any other factors relevant to whether the defendant will appear as required and comply with the conditions of the bail bond. Pa. R. Crim. P. 523(A). In the present case, a number of factors militated against a reduction in Defendant's bail. These included (a) the extreme gravity of the offense as alleged, its classification as a felony, Defendant's prior record as it could impact upon any sentence, the lack of family ties, the relatively short period of Defendant's residency in Cumberland County, the unavailability to him of his prior residence, the absence of his name from records of the local tax collector, and his historical association with other states, (b) the evidence recounted above as to social security numbers and Defendant's name(s), and (c) the absence of evidence relating the bail as set to his current financial situation. Because of these factors, and after careful consideration, the court declined to modify Defendant's bail in response to his motion for reduction thereof BY THE COURT, J. Wesley Oler, Jr., J. M.L. Ebert, Jr., Esq. District Attorney Karl E. Rominger, Esq. Attorney for Defendant