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HomeMy WebLinkAbout95-0929 CriminalCOMMONWEALTH V® RICKEY ALLEN STITT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 95-0929 CRIMINAL TERM CHARGE: SIMPLE ASSAULT (2 Counts) IN RE: DEFENDANT'S POST-SENTENCE MOTION BEFORE OLER, J. ORDER OF COURT ~ day of February, William I. Gabig, Esq. Sr. Assistant District Attorney BY THE COURT, AND NOW, this 1996, after careful consideration of Defendant's post-sentence motion in the form of a motion for judgment of acquittal, a motion in arrest of judgment and a motion for a new trial, and of the briefs submitted on the matter, for the reasons stated in the accompanying opinion the motion is DENIED. NOTICE is hereby given to Defendant in accordance with Pennsylvania Rule of Criminal Procedure 1410(B)(4) of his right to appeal from the judgment of sentence in this case to the Pennsylvania Superior Court within 30 days of the entry of this order, and of his right to the assistance of counsel in the preparation of the appeal, and of his right, if indigent, to appeal in forma pauperis and to proceed with assigned (free) counsel as provided in Pennsylvania Rule of Criminal Procedure 316. Hubert X. Gilroy, Esq. Attorney for Defendant : rc COMMONWEALTH V® RICKEY ALLEN STITT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 95-0929 CRIMINAL TERM CHARGE: SIMPLE ASSAULT (2 counts) IN RE: DEFENDANT'S POST-SENTENCE MOTION BEFORE OLER, J. OPINION and ORDER OF COURT The present criminal case arises out of an episode occurring in March of 1995, in which Defendant struck his three-year-old son, and the child's mother. Following a non-jury trial, Defendant was found guilty of simple assault with respect to both individuals. Defendant filed a post-sentence motion in the form of a motion for judgment of acquittal, motion in arrest of judgment and motion for a new trial. In his motion, Defendant challenges the verdict with regard to his son only. STATEMENT OF THE FACTS Defendant is Rickey Allen Stitt, an adult individual residing at 770 North Middleton Road, Carlisle, Cumberland County, Pennsylvania.~ On Friday, March 17, 1995, at approximately 8:40 p.m., Defendant was at Hills Department Store in the MJ Mall in Carlisle.2 Defendant was with his two sons, three-year-old Joshua A. Stitt and five- or six-year-old Ryan Stitt,3 and Defendant's ~ N.T. 48, Non-jury Trial, Commonwealth v. Stitt, No. 0929, Criminal (September 12, 1995) (hereinafter N.T. __). 2 N.T. 9. 3 N.T. 33, 37. 95- NO. 95-0929 CRIMINAL TERM girlfriend, Heather VanDyne, the mother of the children.4 At that time, Joshua had a cold and was feverish, and Defendant decided to give him some cough syrup while they were in the center aisle of the department store.5 Defendant, a 6'4", 23- year-old male weighing 207 pounds, grabbed Joshua, a child of about 42 inches in height, by the neck with one hand, and grabbed Joshua's face with the other hand.~ Testimony was presented that the defendant chose not to use a spoon to give Joshua the cough syrup, despite an offer by a store employee to lend him a spoon.7 Instead, according to a witness, Defendant tried to pour contents of the bottle directly into Joshua's mouth.8 Joshua was having difficulty swallowing the medicine. Store employees, as well as Joshua's mother, testified that Joshua was "choking, .... gagging," "crying," and "spitting" the medicine back up.9 In response to Joshua's inability to ingest the medicine, Defendant, with an open 4 N.T. 33. 5 N.T. 28. 6 N.T. 31, 43, 47-48, 58. 7 N.T. 21. 8 With regard to Defendant's chosen method of administering the medicine, Defendant claimed he used the plastic cap of the bottle to administer the medicine. N.T. 49. However, three store employees testified that Defendant poured the medicine directly from the bottle into Joshua's mouth. N.T. 10, 20, 28. Joshua's mother said that she could not remember how the medicine was administered. N.T. 39. 9 N.T. 10, 16, 21, 29. NO. 95-0929 CRIMINAL TERM hand, struck the boy with sufficient force to cause Joshua's left nostril to bleed~° and also to leave an imprint on his face.~ Upon being hit, Joshua cried.~2 Defendant testified that he was trying . ~3 and that he was "angry" but not "pissed to "correct the child, off mad.''~4 At that point, Joshua's mother came over to Defendant and Joshua and told Defendant to "get away" from her son.~s The mother then attempted to administer aid to Joshua and began to wipe the blood off his nose.~6 Defendant exited the store to place shopping bags in the car and then returned to get Joshua and his mother.~? Joshua's mother told Defendant that the police had been called and to leave the store.~8 In response, Defendant kicked Heather VanDyne ~0 Heather VanDyne and Defendant claimed that Joshua's nose had on other occasions prior to this incident bled easily. N.T. 41, 51. However, no medical testimony or other evidence was presented regarding Joshua's alleged susceptibility to nosebleeds. ~ N.T. 30, 40. ~2 N.T. 30. ~3 N.T. 50. ~4 N.T. 51-52. ~s N.T. 30. ~6 N.T. 30. ~7 N.T. 58-59. ~8 N.T. 60. NO. 95-0929 CRIMINAL TERM in the leg.~9 Defendant was, as noted above, found guilty of simple assault with respect to both Joshua A. Stitt and Heather VanDyne.2° On November 28, 1995, the court sentenced him on each charge to a period of probation. Defendant has filed a post-sentence motion, challenging the verdict rendered in relation to his son, based upon the following contentions: A. The evidence was insufficient to sustain a verdict of guilty. B. The verdict of guilty was against the weight of the evidence. C. The Commonwealth failed to meet its burden of proving beyond a reasonable doubt that the Defendant demonstrated malice or ill-will towards his child at the time the Defendant was inflicting corporal punishment on the child .... D. The evidence demonstrated that the Defendant was disciplining his child at the time the Defendant slapped his child in the face, and that such discipline was appropriate under the circumstances.2~ The motion states that "Defendant asserts the above in the nature of a Motion for Judgment of Acquittal, a Motion in Arrest of Judgment and a Motion for a New trial on the grounds that the ~9 N.T. 61. At trial, Defendant conceded his guilt as to an assault upon Heather VanDyne. N.T. 63. 20 N.T. 73. See Defendant's Post-Sentence Motion. NO. 95-0929 CRIMINAL TERM verdict was against the weight of the evidence and is in the interest of justice." The motion will be regarded as challenging the sufficiency and weight of the evidence.22 DISCUSSION Sufficiency of the evidence. In reviewing a challenge to the sufficiency of the evidence a court is to determine whether, viewing all the evidence admitted at trial, together with all reasonable inferences therefrom, in the light most favorable to the Commonwealth, the trier of fact could have found that each element of the offense charged was sufficient in law to prove guilt beyond a reasonable doubt.23 For present purposes,~4 a person is guilty of simple assault if he or she "attempts to cause or intentionally, knowingly or recklessly causes bodily injury to another." Act of December 16, 1972, P.L. 1482, §1, 18 Pa. C.S.A. §2701(a)(1). "Bodily injury" is defined as "[i]mpairment of physical condition or substantial pain." Id. §2301. The offense as thus formulated may be committed in two different ways. First, "[t]he wording of the statute expressly ~ The term "motion for judgment of acquittal" has replaced terms such as "demurrer" and "motion in arrest of judgment" for purposes of designating a challenge to the sufficiency of evidence in a trial court. See Pa. R. Crim. P. 1124. ~3 Commonwealth v. Tullius, 399 Pa. Super. 172, 175, 582 A.2d 1, 2 (1990), appeal denied, 527 Pa. 645, 593 A.2d 4 18 (1991). ~4 See Information, Commonwealth v. Stitt, 1995(1) (Cumberland Co.). 929 Criminal NO. 95-0929 CRIMINAL TERM provides that the crime of assault includes an attempt to inflict bodily injury." Commonwealth v. Herriott, 265 Pa. Super. 143, 151, 401 A.2d 841, 845 (1979). Accordingly, "[i]t is enough if the actor attempted to inflict bodily injury." In the Interest of J.L., 327 Pa. Super. 175, 177-78, 475 A.2d 156, 157 (1984). "This intent may be inferred from the circumstances surrounding the incident if a specific intent to cause bodily injury may reasonably be inferred therefrom." Commonwealth v. Polston, 420 Pa. Super. 233, 252, 616 A.2d 669, 679 (1992). Second, the offense may be committed by an actual infliction of bodily injury. In this regard, it should be noted that the existence of substantial pain may be inferred from the circumstances surrounding the use of physical force even in the absence of significant injury. Commonwealth v. Ogin, 373 Pa. Super. 116, 121, 540 A.2d 549, 552 (1988), appeal denied, 521 Pa. 611, 557 A.2d 343 (1989). Several cases are illustrative of an application of these principles in the context of a challenge to the sufficiency of the evidence as to a charge of simple assault. In Commonwealth v. Ogin, supra, the Pennsylvania Superior Court upheld a defendant's conviction for simple assault where the victim was grabbed by the arm and flung against a building, was struck in the face with extreme force causing her to fall against a wall, and cried after having hot food shoved in her face. In Commonwealth v. Jorgenson, 6 NO. 95-0929 CRIMINAL TERM 341 Pa. Super. 550, 492 A.2d 2 (1985), rev'd on other grounds, 512 Pa. 601, 517 A.2d 1287 (1986), the Superior Court held that striking a victim twice across the face was sufficient to sustain a conviction of the defendant for simple assault. A simple assault conviction was similarly upheld by the Court in Commonwealth v. Bryant, 282 Pa. Super. 600, 608, 423 A.2d 407, 411 (1980), where a victim was thrown to the ground by the assailant. Viewing the testimony adduced at trial in this case in the light most favorable to the Commonwealth, one could reasonably infer from the circumstances that Defendant acted with an intent to cause bodily injury to his three-year-old son. He struck the child with enough force to cause his nose to bleed and to leave an imprint on the child's face. A reasonable inference could also be drawn that Joshua did in fact suffer bodily injury, in the form of substantial pain, during the course of the incident. The child was forced to ingest medicine to the point of gagging and choking, was struck in the face by a two-hundred pound male with sufficient force to cause bleeding and leave an imprint, and reacted by crying. Defendant contends that he was justified in using force against Joshua as a form of corporal punishment, maintaining that the Commonwealth failed to prove beyond a reasonable doubt that he demonstrated malice or ill-will toward the child at the time he was inflicting the punishment. Specifically, Defendant argues that he NO. 95-0929 CRIMINAL TERM was disciplining the boy when he slapped Joshua in the face, and that such discipline was not unreasonable or inappropriate under the circumstances. "It is well-established that parents have a privilege to subject their children to corporal punishment when the children misbehave." Commonwealth v. Ogin, 373 Pa. Super. 116, 124, 540 A.2d 549, 554 (1988), appeal denied, 521 Pa. 611, 557 A.2d 343 (1989). However, there are limits regarding the type and severity of the corporal punishment which a parent may impose. Id. These limits are set forth in section 509(1) of the Crimes Code, Act of December 6, 1972, P.L. 1482, ~1, as amended, 18 Pa. C.S.A. ~509(1) (1995 Supp.): The use of force upon or toward the person of another is justifiable if ... [t]he actor is the parent or guardian ... and: (i) the force is used for the purpose of safeguarding or promoting the welfare of the minor, including the preventing or punishment of his misconduct; and (ii) the force used is not designed to cause or known to create a substantial risk of causing death, serious bodily injury, disfigurement, extreme pain or mental distress or gross degradation. The Superior Court has stated that the purpose of this provision "is to allow corporal punishment [by] parents, ... which, without section 509, would fall under the definition of simple assault. However, corporal punishment may not exceed the bounds justifiable for maintenance of reasonable discipline, consistent with the welfare of the minor." Commonwealth v. Douglass, 403 Pa. NO. 95-0929 CRIMINAL TERM Super. 105, 111, 588 A.2d 53, 56 (1991). The court further noted that "[t]he term 'extreme' is synonymous with 'excessive'" and that the pain inflicted as a result of discipline must therefore not be excessive. Id. "The punishment must be justifiable and fit the misconduct." Id. "[W]hen applying the justification statute, the court should focus not only on the degree of force exerted by the parent but also on the age and the physical and mental condition of the child who has been disciplined." Commonwealth v. Ogin, 373 Pa. Super. 116, 127, 540 A.2d 549, 555 (1988), appeal denied, 521 Pa. 611, 557 A.2d 343 (1989). In addition, in such cases it would appear that the "factfinder [should] assess whether the [actor] believed the use of force was necessary to maintain reasonable discipline and whether it was consistent with the child's welfare." Commonwealth v. Tullius, 399 Pa. Super. 172, 179, 582 A.2d 1, 4 (1990), appeal denied, 527 Pa. 645, 593 A.2d 418 (1991). However, "[i]t is ... clear that a defendant's actions are not legally justified simply because he may sincerely believe that the best way of safeguarding or promoting a child's welfare is to inflict a cruel and patently excessive punishment." Commonwealth v. Ogin, 373 Pa. Super. 116, 126-27, 540 A.2d 549, 555 (1988), appeal denied, 521 Pa. 611, 557 A.2d 343 (1989). Several appellate court decisions are helpful for factual reference in this area. In Commonwealth v. Tullius, supra, the 9 NO. 95-0929 CRIMINAL TERM Superior Court held that a teacher's defense of justification under section 509(2) of the Crimes Code, relating to use of force by teachers, was not compelling where the defendant was charged with simple assault for slamming a 13-year-old pupil against a locker three or more times while holding his arms and utilizing force sufficient to cause swelling and bruising. 339 Pa. Super. 172, 179-80, 582 A.2d 1, 4 (1990), appeal denied, 527 Pa. 645, 593 A.2d 418 (1991). In so holding, the Court took into account the fact that the defendant was six feet tall and weighed 195 pounds, and that the victim weighed between 110 and 115 pounds. Id. Similarly, in Commonwealth v. Ogin, supra, the Superior Court held that the justification defense under section 509(1) of the Crimes Code was unavailing to parents of a child who was struck with enough force that she fell back against a brick wall, was flung into a building, and was subjected to facial contact with hot food. 373 Pa. Super. 116, 127, 540 A.2d 549, 555 (1988), appeal denied, 521 Pa. 611, 557 A.2d 343 (1989). In the present case, the Commonwealth's evidence showed, as noted previously, that Defendant struck his son with sufficient force to cause his nose to bleed and to leave a mark on his face. This conduct toward an ill and feverish three-year-old was in response to the child's choking and gagging on medicine being poured down his throat. Although Defendant testified that his behavior was meant to instruct Joshua, Defendant's mood was one of 10 NO. 95-0929 CRIMINAL TERM anger and his conduct, in the court's view, far exceeded in severity any type of physical discipline reasonably related to proper punishment, prevention of misconduct or promotion of Joshua's welfare under the circumstances. Accordingly, when the evidence is viewed in the light most favorable to the Commonwealth, it is, the court believes, sufficient to show that the elements of simple assault were proven, and that the defense of justification was disproven, beyond a reasonable doubt. Weiqht of the evidence. "A motion for new trial on grounds that the verdict is contrary to the weight of the evidence concedes that there is sufficient evidence to sustain the verdict but contends, nevertheless, that the verdict is against the weight of the evidence." Commonwealth v. Taylor, 324 Pa. Super. 420, 425, 471 A.2d 1228, 1230 (1984). Disposition of the motion is within the sound discretion of the trial court, and the test is "whether the verdict is so contrary to the evidence as to make the award of a new trial imperative so that right may be given another opportunity to prevail." Id. In the present case, the Commonwealth presented testimony of various people who witnessed the episode involving Defendant, Defendant's son, and Defendant's girlfriend. Only Defendant's version of the events could be characterized as other than highly inculpatory. Under these circumstances, it can not be said that the verdict was so contrary to the evidence that a new trial is 11 NO. 95-0929 CRIMINAL TERM imperative to allow right another opportunity to prevail. ORDER OF COURT AND NOW, this 12th day of February, 1996, after careful consideration of Defendant's post-sentence motion in the form of a motion for judgment of acquittal, a motion in arrest of judgment and a motion for a new trial, and of the briefs submitted on the matter, for the reasons stated in the accompanying opinion the motion is DENIED. NOTICE is hereby given to Defendant in accordance with Pennsylvania Rule of Criminal Procedure 1410(B)(4) of his right to appeal from the judgment of sentence in this case to the Pennsylvania Superior Court within 30 days of the entry of this order, and of his right to the assistance of counsel in the preparation of the appeal, and of his right, if indigent, to appeal in forma pauperis and to proceed with assigned (free) counsel as provided in Pennsylvania Rule of Criminal Procedure 316. BY THE COURT, s/ J. Wesley Oler, Jr. J. Wesley Oler, Jr., J. William I. Gabig, Esq. Sr. Assistant District Attorney Hubert X. Gilroy, Esq. Attorney for Defendant 12