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HomeMy WebLinkAbout00-0775 criminalCOMMONWEALTH ·IN THE COURT OF COMMON PLEAS OF ·CUMBERLAND COUNTY, PENNSYLVANIA V. ' DENNIS E. FAHNESTOCK · NO. 2000-0775 CRIMINAL TERM IN RE- OPINION PURSUANT TO PA. R.A.P. 1925 Guido, J., April 10, 2001 Defendant was ch~/rged with various crimes arising out of an incident involving his stepchildren, Jhon and Frinces McCarty, ages 9 and 7 respectively. After a trial by jury, defendant was found guilty of two counts each of simple assault,~ endangering the welfare of children,2 and harassment.3 He was sentenced by this Court on October 3, 2000. Defendant filed post sentence motions which were denied on January 11,2001. This timely appeal followed. Pursuant to Pa. R.A.P. 1925(b) defendant has filed a "Concise Statement of Matters Complained of on Appeal" in which he raises the following issues' 1.) Frinces McCarty was not competent to testify. 2.) The evidence was insufficient to prove the charges of simple assault. Specifically, defendant avers that the Commonwealth failed to prove beyond a reasonable doubt that defendant caused substantial pain to the children. ~ 18 Pa.C.S.A. § 2701 (a)(1). 2 18 Pa.C.S.A. § 4304. 3 18 Pa.C.S. § 2709(a)(1). NO. 2000-0775 CRIMINAL 3.) The evidence was insufficient to prove the charge of endangering the welfare of children as it relates to Jhon McCarty. Specifically, defendant avers that the Commonwealth failed to prove beyond a reasonable doubt that Jhon McCarty was under the age of 18 at the time of the incident. 4.) The evidence was insufficient to prove the charge of endangering the welfare of children as it relates to both Jhon McCarty and Frinces McCarty. Specifically, defendant avers that the Commonwealth failed to prove beyond a reasonable doubt that the nature of the injuries endangered the welfare of the children. We will address each issue in the opinion that follows. Competency of Frinces McCarty. Because of the age of both children, we conducted an on the record inquiry as to their mental capacity.4 Commonwealth v. McMasters, 446 Pa. Super. 261 666 A.2d 724, (1995). The guidelines we must follow in evaluating the competency of a child witness were set forth in Rosche v. McCoy, 397 Pa. 615,620-621, 156 A.2d 307, 310 (1959). Quoting from Rosche the McMasters Court held that the trial court must determine whether the child possesses: (1) such capacity to communicate, including as it does both an ability to understand questions and to frame and express intelligent answers, (2) mental capacity to observe the occurrence itself and the capacity of remembering what it is that she is called to testify about and (3) a consciousness of the duty to speak the truth. 666 A.2d at 727. 4 Trial Transcript, pp. 9- 19, 19- 29. NO. 2000-0775 CRIMINAL In applying the above guidelines to the case at bar, we determined that the older child, Jhon McCarty was not competent to testify. However, after seeing and heating Frinces, we were satisfied that she met all of the above requirements and was competent to testify. Sufficiency of Evidence. The defendant contends that the evidence presented to the jury was not sufficient to prove beyond a reasonable doubt that he is guilty of simple assault or endangering the welfare of children. The standard to be applied in evaluating a challenge to the sufficiency of the evidence was articulated by the Pennsylvania Supreme Court as follows: In determining whether the Commonwealth has met its burden of proof, the test to be applied is' [w]hether, viewing the evidence in the light most favorable to the Commonwealth, and drawing all reasonable inferences favorable to the Commonwealth, there is sufficient evidence to find every element of the crime beyond a reasonable doubt. The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. Moreover, in applying the above test, the entire trial record must be evaluated and all evidence actually received must be considered. Finally, the trier of fact while passing upon the credibility of witnesses and the weight of the evidence produced, is free to believe all, part or none of the evidence. Commonwealth v. Valette, 531 Pa. 384, 388, 613 A.2d 548, 549 (1992) (citations and quotation marks omitted). Applying the above standard to the case at bar, we are satisfied that defendant's challenge to the sufficiency of the evidence is without merit. NO. 2000-0775 CRIMINAL Simple Assault. The defendant was convicted of 2 counts of simple assault under Section 2701 (a)(1) of the Crimes Code which provides as follows: § 2701. Simple Assault (a) Offense defined.- A person is guilty of assault if he' (1) attempts to cause or intentionally, knowingly or recklessly causes bodily injury to another; 18 Pa.C.S.A. § 2701 (a)(1). The crimes code defines "bodily injury" as "(i)mpairment of physical condition or substantial pain.''5 Defendant argues that the evidence failed to prove that he caused substantial pain to either of the children. We disagree. Frinces testified that the defendant choked her with his hands and that it hurt.6 She further testified that she saw him choke Jhon.7 Both children were taken to the hospital emergency room for treatment.8 They each had obvious and severe bruising on their neck.9 Under these circumstances, we are satisfied that there was more than sufficient evidence to sustain the convictions of simple assault. Recklessly Endangering Welfare of Children. The defendant was also convicted of two counts of endangering the welfare of children. The particular offense is set forth in Section 4304 of the Crimes Code as 18 Pa.C.S.A. § 2301. Trial Transcript, p. 39. Trial Transcript, p. 42. Commonwealth Exhibits, 7 and 8. Commonwealth Exhibits, 1, 2 and 4 were a videotape and pictures of the injuries to each child. NO. 2000-0775 CRIMINAL follows: § 4304. Endangering welfare of children (a) Offense defined - A parent, guardian or other person supervising the welfare of a child under 18 years of age commits an offense if he knowingly endangers the welfare of the child by violating a duty of care, protection or support. 18 Pa.C.S.A. § 4304. Defendant contends that the evidence was insufficient to prove his guilt beyond a reasonable doubt in two respects. In the first instance, he points out that there was no evidence presented to the jury to prove that Jhon was under the age of eighteen at the time of the offense. He also argues that there was no proof that the nature of the injuries endangered the welfare of the children. Neither claim has merit. As the Supreme Court noted in Commonwealth v. Valette, supra, the Commonwealth may rely on circumstantial evidence to prove the elements of the crime charged. In the instant case, Frinces testified before the jury that she was seven (7) years old and in the first grade.~° She also testified that Jhon was in the third grade at the same school.11 Further, Commonwealth exhibits one (1) and two (2) were a videotape and picture, respectively, of Jhon. The jury could certainly apply its reason and common sense to that evidence and conclude beyond a reasonable doubt that Jhon was less than 18 years old. lo Trial Transcript, p. 34. ~lTrial Transcript, p. 35. NO. 2000-0775 CRIMINAL We are also satisfied that the injuries sustained by each of the children were, in fact, of a nature that endangered their welfare. One need only see the pictures and review the medical records to reach this conclusion.~2 However, the focus is not upon the actual injuries to the children, but rather, upon the conduct of the defendant. As our appellate Courts have noted: The Supreme Court has said that Section 4304 was drawn broadly to cover a wide range of conduct in order to safeguard the welfare and security of children. It is to be given meaning by reference to the common sense of the community and the broad protective purposes for which it was enacted. Commonwealth v. Mack, 467 Pa. 613,618, 359 A.2d 772 (1976). Thus, the "common sense of the community, as well as the sense of decency, propriety and the morality which most people entertain is sufficient to apply the statute to each particular case, and to individuate what particular conduct is rendered criminal by it.", quoting Commonwealth v. Marlin, 452 Pa. 380 387, 305 A.2d 14, 18 (1973) and Commonwealth v. Randall, 183 Pa. Super. 603, 611,133 A.2d 276, 280 (1957). Commonwealth v. Taylor, 324 Pa. Super. 420, 426 - 427, 471 A.2d 1228, 1231 (1984). In the instant case, the defendant violently choked two small children left in his care. This conduct sufficiently offends the "sense of decency, propriety and the morality which most people entertain" as to render it a violation of Section 4304 of the Crimes Code. APRIL /0 ,2001 Edward E. Guido, J. ~2 The emergency room physigign 3dvised the. Children and Youth caseworker to watch each child for trouble breathing or swallowifig~fid:'to.'retum to ~the emergency room if any is noted. (Commonwealth exhibits 7 and 8). Further, in the case of Frinces, the doctor concluded that the braising on her neck was the result of"a fairly strong for, ge2,'. ~C%~ctoweat~]~~. it 7). In the case of Jhon, the doctor observed that the lesions on his neck W~,c~eh%y~klff~~ with a significant amount of pressure. His observations led him to conclude that "this was a serious assault and warrants the intervention of Children and Youth." (Commonwealth Exhibit ~I)~ L ~_ ~ NO. 2000-0775 CRIMINAL CC' Michelle E. Hamilton, Esquire For the Commonwealth William G. Braught, Esquire For the Defendant Brenda Snider CCC&Y- Caseworker 'sld