Loading...
HomeMy WebLinkAboutCR-2548, 1731, 2549, 1729-2002COMMONWEALTH SHENIQUE T. THOMAS : SHENIQUE THOMAS : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CP-21-CR-2548-2002 CHARGE: (1) CRIMINAL HOMICIDE - MURDER OF THE THIRD DEGREE (2) INVOLUNTARY MANSLAUGHTER (3) AGGRAVATED ASSAULT AFFIANT: DET. THOMAS KIBLER OTN: H460315-2 CP-21-CR- 1731-2002 CHARGE: ENDANGERING WELFARE OF CHILDREN AFFIANT: DET. THOMAS KIBLER OTN: L128958-4 COMMONWEALTH ANTHONY E. THOMAS : ANTHONY THOMAS : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CP-21-CR-2549-2002 CHARGE: (1) CRIMINAL HOMICIDE - MURDER OF THE THIRD DEGREE (2) INVOLUNTARY MANSLAUGHTER (3) AGGRAVATED ASSAULT AFFIANT: DET. THOMAS KIBLER OTN: H460316-3 CP-21-CR-1729-2002 CHARGE: ENDANGERING WELFARE OF CHILDREN AFFIANT: DET. THOMAS KIBLER OTN: L128966-5 IN RE: OPINION PURSUANT TO PA. R.A.P. 1925 OLER, J., May 19, 2004. In these criminal cases, which were joined for trial, the parents of a malnourished four-year-old child with fractured ribs were initially charged with endangering his welfare, and subsequently charged with third-degree murder, involuntary manslaughter and aggravated assault when he failed to survive hospitalization. Following a jury trial, they were found guilty of endangering the welfare of a child, involuntary manslaughter and aggravated assault. ~ Each was sentenced to an aggregate prison term of not less than five years nor more than ten years in a state correctional institution, in accordance with the mandatory minimum sentence applicable to the aggravated assault.2 Following disposition of post-sentence motions, Defendants have filed direct appeals to the Pennsylvania Superior Court from the judgments of sentence. The basis for the appeal of Defendant Shenique T. Thomas is expressed in a statement of matters complained of on appeal as follows: The Court erred when it allowed the charge of aggravated assault to go to the jury and when it denied Defendant's motion [for judgment of acquittal] at the end of the Commonwealth's case. Aggravated assault does not apply in a starvation or neglect case. No aggravated assault occurred. There was no evidence of force used or threat of force. Aggravated assault presupposes action, not failure to act, and the more specific applicable statutes are homicide, manslaughter and endangering the welfare of children, which are the appropriate crimes to charge for neglect and/or omission, failure to act. The facts as elicited by both the Commonwealth and defense do not fit the charge of aggravated assault or any assault whatsoever. They fit the charge of endangering the welfare of children.3 The bases for the appeal of Defendant Anthony E. Thomas are expressed in a statement of matters complained of on appeal are as follows: 1. There was insufficient proof of causation pursuant to Commonwealth v. Moore, [498] A.2d 970 (Pa. Super 1985) and the Court should have arrested judgment or dismissed the case for failure of the Commonwealth to prove causation, particularly where causation was shown only by medical ~ A mistrial was declared as to the charge of third-degree murder due to an inability of the jury to reach a verdict. See Orders of Court, July 24, 2003. : See Orders of Court, October 7, 2003. ~ Defendant's statement of matters complained of on appeal, filed January 30, 2004. 2 testimony and all other testimony was not consistent with causation by homicide. 2. The Court should have dismissed or arrested judgment as to aggravated assault as there was insufficient evidence to prove the same. Further, the Commonwealth's theory and sole evidence as to aggravated assault was that it was an assault which occurred by an "act of omission" and under fair interpretation of aggravated assault in the crimes code, an assault by definition is an act of commission and cannot be made out by an act of omission. There are other more appropriate charges prescribed by the Legislature and those being more specific and appropriate should have been applied, and therefore no conviction lies under the aggravated assault statute. 3. The Court entered a felony conviction against Defendant. However, the felony grading requires a "pattern and practice" and the Commonwealth did not charge this element, nor seek to have the issue presented to the jury on the issue of pattern and practice, and therefore the charge must be graded as a misdemeanor of the first degree and not a felony of the third degree which would change the applicable sentencing guidelines, and consequences of the conviction. 4. Finally, Defendant raises the sufficiency evidence argument generally as to each of the charges and thus the Commonwealth's evidence, even if believed, and when considered alone or along with uncontested and unrebutted defense evidence, is insufficient, and the charges should be dismissed for the failure of the Commonwealth to provide 4 sufficient evidence to prove their case. This opinion in support of the judgments of sentence appealed from is written pursuant to Pennsylvania Rule of Appellate Procedure 1925(a). However, the opinion will not address the general challenge to the sufficiency of the evidence contained in paragraph 4 of the statement of matters complained of on appeal filed by Defendant Anthony E. Thomas, due to its nonspecific nature.5 Defendant's statement of matters complained of on appeal, filed April 28, 2004. See Commonwealth v. Garofalo, 386 Pa. Super. 363, 563 A.2d 109 (1989) (inefficacy of boilerplate challenges to sufficiency of evidence). 3 STATEMENT OF FACTS On a challenge to the sufficiency of the evidence in a criminal case, the evidence is to be viewed "in the light most favorable to the Commonwealth" and "all reasonable inferences in the Commonwealth's favor" are to be entertained. Common~vealth v. Jones, 449 Pa. Super. 58, 61, 672 A.2d 1353, 1354 (1996) (quoting Common~vealth v. Carter, 329 Pa. Super. 490, 495-96, 478 A.2d 1286, 1288 (1984)). Viewed in accordance with this rule, the evidence in the present case may be summarized as follows: The victim, Anthony Quincy Thomas,6 was born on March 6, 1998.7 He died at the age of four years and four months, on July 30, 2002.8 Shortly prior to his death, he had been hospitalized with a weight, comparable to that of an infant,9 of 20 pounds,l° the height of a ten-and-a-half month old baby,~ a temperature of 95.3ff and evidence of four recent rib fractures.~3 The immediate cause of death was compression of the spinal cordTM due to swelling of the brain,~5 caused by an influx of water into the brain cells,~6 which was precipitated by a drop in sodium in the blood,~7 in the course of treatment~8 for severe malnutrition. 19 Def. Anthony Thomas Exhibit 10, at 6. N.T. 1249. Commonwealth's Exhibit 103, at 1. 9 N.T. 804. l0 N.T. 170, 240. ~ N.T. 804. ~2 N.T. 245. ~3 N.T. 652, 655,669, 855. 14 N.T. 927. ~5 N.T. 765, 1079. 16 N.T. 766. ~7 N.T. 660, 668, 765, 865, 900, 927. ~8 N.T. 731-32. 19 N.T. 803, 862, 883, 1087. 4 Defendants--Anthony E. Thomas (d.o.b. 10/2/702°) and Shenique T. Thomas (d.o.b. 7/4/7521)--were his parents22 and caregivers.2s During his life, his contact with people other than his parents and siblings was severely restricted,24 attention paid to him by others was discouraged,2s his (female) siblings were treated preferentially,26 he lived in highly unsanitary conditions,27 he was subjected to extreme punishments,28 satiation of his appetite was discouraged,29 his manifest desire for food was the subject of disdain,so he became grotesquely emaciateds~ and developed other indicia of starvation,s2 physical effects of his malnutrition were minimalized,ss ridiculeds4 or attributed to his own failings,ss his hunger drove him to eat mattress stuffing and insulation material,s6 and he received no medical attention in the two years preceding his hospitalization and death,s7 When admitted to the hospital, he evidenced four recentsa rib fractures,s9 20 Defendant Anthony Thomas Exhibit 10, at 2. 2~ Defendant Anthony Thomas Exhibit 10, at 4. 22 N.T. 423. Defendant Anthony Thomas Exhibit 10, at 6. 23 N.T. 176, 534. 24 N.T. 24, 27, 33, 35, 38, 46, 75-76, 84, 94, 525, 533, 539, 544, 547, 552, 561, 569-70, 624-25, 627. 25 N.T. 26 N.T. :v N.T. 28 N.T. 29 N.T. 48. 77, 79, 579. 109, 182, 203, 279-82, 401-03,431; Commonwealth's Exhibit 40. 82-83, 84, 583-84, 599-600, 607, 609, 611. 300, 582, 730. N.T. 122, 169, 300, 800 ("greedy gut"). Commonwealth Exhibits 11-12. N.T. 236-37, 252-53,577, 647, 657, 924-25, 1117. 33 N.T. 298 ("clumsy as hell"). 34 N.T. 165 ("hairy as shit"). 35 N.T. 625 ("lazy"), N.T. 731 ("copping an attitude"). 36 N.T. 441,504-05,507. 37 N.T. 1183. 38 N.T. 669. 39 N.T. 652, 655. 5 Immediately prior to his hospitalization, the victim's condition had been brought to the attention of authorities by a concerned relative, who felt that he was going to die.4° The report alleged that Defendants were not feeding him properlyfi~ When a Cumberland County Children and Youth Services caseworker investigated the report, Defendant Shenique T. Thomas did not produce the child during an interview at the home,42 claimed that the child was three rather than four,43 concealed the child's room from the investigator,44 denied that he was thin,45 falsely claimed that he had been seen by a pediatrician within the previous four months,46 falsely claimed that he weighed 32 pounds,47 and misrepresented a picture of a healthy child as that of the victimfis She characterized the report received by the agency as "bullshit.'49 On the following day, when the caseworker was able to see the child and realized the urgency of his condition, Defendant Anthony E. Thomas, who had failed to keep a medical appointment that was scheduled for the child after his last examination two years previously, S° discouraged the caseworker's 40 N.T. 99. One of the victim's siblings subsequently advised that she had seen worms coming out of his anus and that he had been drinking out of a toilet with urine and feces in it because he was not being fed enough by Defendants. N.T. 203. 41 N.T. 202. 4: N.T. 150. 43 N.T. 158. 44 N.T. 157-58, 182, 423-24, 464. 45 N.T. 154. 46 N.T. 154, 159-61,178. 47 N.T. 158. 48 N.T. 101, 156. 49 N.T. 151. 5°N.T. 1178, 1183-84. 6 recommendation of immediate medical attention by indicating that he would not pay for it.5~ The child was dead six days later.52 According to medical testimony, extensive scientific testing revealed no organic reason for the child's malnutrition.~3 At the conclusion of a trial which developed almost 1400 pages of transcribed testimony and in which over a hundred Commonwealth exhibits were admitted, the jury returned the verdicts indicated at the beginning of this opinion. Defendants were sentenced on October 7, 2004. With respect to the charge of endangering the welfare of children, no sentences were imposed because the offense was deemed to merge for sentencing purposes with the offense of involuntary manslaughter. ~4 DISCUSSION Aggravated assault sufficiency of the evidence. On a challenge to the sufficiency of the evidence in a criminal case, the proper test is "whether, viewing the evidence admitted at trial in the light most favorable to the Commonwealth and drawing all reasonable inferences in the Commonwealth's favor, there is sufficient evidence to enable the trier of fact to find every element of the [crime] charged beyond a reasonable doubt." Commonwealth v. Jones, 449 Pa. Super. 58, 61, 672 A.2d 1353, 1354 (1996) (quoting Commonwealth v. Carter, 329 A.2d 490, 495-96, 478 A.2d 1286, 1288 (1984)). The trier of fact is "free to believe all, part or none of the evidence." Commonwealth v. Petaccio, 2000 PA Super. 384, 764 A.2d 582, 585 (2000) (quoting Commonwealth v. Griscavage, 512 Pa. 540, 543,517 A.2d 1256, 1257 (1986)). One of the stated purposes of the Crimes Code is "[t]o forbid and prevent conduct that unjustifiably inflicts or threatens substantial harm to individual or 5~ N.T. 166. To her great credit, the caseworker insisted that the child receive immediate medical attention and committed funds of her agency to pay for it. N.T. 167. 5: Commonwealth's Exhibit 103, at 1. 53 N.T. 676, 678, 699, 701,707, 870-83, 933. 7 public interest." Act of December 6, 1972, P.L. 1482, §1, 18 Pa. C.S. §104(1). "Conduct," in this regard, encompasses "[a]n act or omission and its accompanying state of mind, or, where relevant, a series of acts and omissions." Id, § 103 (emphasis added). In addition, the provisions of the Crimes Code are to "be construed according to the fair import of their terms" and in the case of ambiguity "to further the general purposes [of the Code] and [any] special purposes of the particular provision involved." Id, § 105. Section 2702(a) of the Crimes Code provides, in pertinent part, as follows: A person is guilty of aggravated assault if he: (1) attempts to cause serious bodily injury to another, or causes such injury intentionally, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life; .... 55 The conduct of a parent required by law includes an affirmative duty "to provide care, direction and sustenance,''56 and conduct which falls below that standard to the point that a child starves to death will be deemed to have caused the death for purposes of the Crimes Code. See, e.g., Commonwealth v. Cottam, 420 Pa. Super. 311, 616 A.2d 988 (1992) (parents' conviction for third degree murder arising out of death of child by starvation upheld). In the present case, although the jury deadlocked on the issue of whether Defendants were guilty of third degree murder, there was ample evidence, as recited above, to support the proposition that they, by "conduct" as defined above, had caused, or attempted to cause, serious bodily injury to the victim, who was admitted to a hospital directly from their care suffering from severe malnutrition and four fractured ribs and who died shortly thereafter.57 s4 Orders of Court, October 7, 2003; see Commonwealth v. Matir, 712 A.2d 327 (Pa. Super. Ct. 1998). ss Act of December 6, 1972, P.L. 1482, §1, as amended, 18 Pa. C.S. §2702(a)(1). 56 Commonwealth v. Cottam, 420 Pa. Super. 311,335, 616 A.2d 988, 1000 (1992). s7 Defendants' additional argument that the more specific nature of Pennsylvania's homicide, manslaughter and child endangerment provisions precluded prosecution for the more general 8 Medical testimony and causation. In Commonwealth v. Moore, 345 Pa. Super. 567, 569, 498 A.2d 970, 971 (1985), the Pennsylvania Superior Court indicated in dictum that "the Commonwealth must present more than opinion of a medical expert to establish causation in a criminal case." In view of the fact that medical opinions are generally expressed in terms of a reasonable degree of medical certainty as opposed to beyond a reasonable doubt, there are obviously contexts in which this statement can be appropriately applied, particularly where the medical testimony is somewhat equivocal. See Commonwealth v. Floyd, 499 Pa. 316, 319, 453 A.2d 326, 328 (1982) (analyzing Commonwealth v. Embry, 441 Pa. 183, 272 A.2d 178 (1971) (issue in homicide case as to whether stress of robbery caused fatal heart attack)). On the other hand, the Pennsylvania Supreme Court has held that a medical examiner's opinion, expressed to a reasonable degree of medical certainty, that traumatic injuries to a victim's head were consistent with blows from a human fist and that the cause of death was homicide was sufficient to establish criminal causation beyond a reasonable doubt for purposes of the corpus delicti rule. See Commonwealth v. Stoltzfus, 462 Pa. 43, 56, 337 A.2d 873, 879 (1975). In the present case, if the Commonwealth's evidence, medical and otherwise, is to be credited, as it must be at this point, as to the history of mistreatment of the victim by the Defendants, his hospitalization in a state of severe malnutrition, the scientific exclusion of any organic cause for his condition, and his failure to survive despite medical treatment, the record amply supports a conclusion beyond a reasonable doubt that his injuries and demise were criminally caused. For this reason, it is believed that the position of Defendant Anthony E. crime of aggravated assault under the present circumstances is not, in the court's view, persuasive. The rule being relied upon by Defendants--that the particular controls the general-- applies where statutes conflict in the sense that "the same facts which would constitute one offense.., also constitute another offense." Commonwealth v. Parmar, 551 Pa. 318, 325, 710 A. ld 1083, 1086 (1998). The conduct constituting aggravated assault is quite different from that prescribed for the other offenses and the statutory provisions are not in conflict, either in an abstract sense or as relied upon the prosecution herein. 9 Thomas that the Commonwealth failed to present sufficient evidence to establish criminal causation is not persuasive. Grading of of Jknse of endangering welfare of child Section 4304 of the Crimes Code, proscribing the offense of endangering the welfare of a child, provides as follows: (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. (b) Grading.--An offense under this section constitutes a misdemeanor of the first degree. However, where there is a course of conduct of endangering the welfare of a child, the offense constitutes a felony of the third degree.58 In the case ofA££rehendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), the United States Supreme Court held that, "[o]ther than the fact of a prior conviction, 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." Id at 490, 120 S. Ct. 2361-63, 147 L. Ed. 2d 455. The purpose of this rule is to preclude a defendant's subjection to an increased maximum sentence on the basis of a fact established by less than the traditional criminal standard of proof. Commonwealth v. Graham, 2002 PA Super. 159, 799 A.2d 831, 833-34 (2002). The rule has not been expanded by Pennsylvania courts to provide relief beyond this purpose. See id In the present case, the informations filed against Defendants with respect to endangering the welfare of a child described the crime as occurring "on or about or between an unknown period, which may date from Friday, the 1st day of January, 1999, and Tuesday, the 30th day of July, 2002.''59 The informations defined the offenses in terms of the language of Section 4304(a), and indicated the grading and penalties as "(F3--$15,000.00--7 Years).''6° 58 Act of December 6, 1972, P.L. 1482, §1, as amended, 18 Pa. C.S. §4304 (2004 Supp.). 59 Informations, filed December 2, 2002. 60 Id. 10 The Commonwealth's evidence, as recited above, was directed to an extended course of conduct on the part of Defendants leading to the victim's death. Neither defense counsel requested that the court fashion its charge or the verdict slips to distinguish between the misdemeanor and felony gradings of the offense. The recorded verdicts of the jury did not, of course, specify the grading of the offense. In ordering presentence investigation reports, however, the court recited the grading of the offense as contained on the informations. All counsel indicated on the record that the order was correctly stated.6~ Finally, no objection was made at the time of sentence to the court' s characterization of the offense as a felony of the third degree in the sentencing order.62 In the present case, where no sentence whatsoever (much less an enhanced sentence) was imposed on either Defendant on the charge of endangering the welfare of a child, by virtue of the doctrine of merger, the subjection of a defendant to an enhanced maximum sentence to which the rule in Apprehendi was addressed is not a reality. In view of the background recited above, and the inapplicability of the Apprehendi rationale to the facts herein, it is believed that the request for relief by Defendant Anthony E. Thomas on this basis is not compelling. For all of the foregoing reasons, it is believed that the judgments of sentence appealed from were properly entered. BY THE COURT, David J. Freed, Esq. First Assistant District Attorney J. Wesley Oler, Jr., J. 61 N.T. 1464-66. 6: This issue was raised by counsel for Defendant Anthony E. Thomas for the first time in a post sentence motion. 11 Karl E. Rominger, Esq. Attorney for Defendant Anthony E. Thomas Ellen K. Barry, Esq. First Assistant Public Defender for Shenique T. Thomas 12