HomeMy WebLinkAbout92-1895 Criminal COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
: NO. 1895 CRIMINAL 1992
v. : CHARGES: (A) AGGRAVATED ASSAULT
: (B) ENDANGERING
: WELFARE OF CHILD
ADAM S. WELKER : AFFIANT: OFFICER JAMES KARNS
IN RE: DEFENDANT'S POST-SENTENCE MOTION
BEFORE OLER, J.
ORDER OF COURT
AND NOW, this(Ti~day of May, 1994, upon careful consideration
of Defendant's post-sentence motion for a new trial, the Motion is
DENIED.
PURSUANT to Pennsylvania Rule of Criminal Procedure 1410.B(4),
Defendant is advised (a) of his right to appeal from the judgment
of sentence to the Superior Court of Pennsylvania, within 30 days
of entry of this Order, (b) of his right to assistance of counsel
in the preparation of the appeal, (c) of his right to appeal in
forma pauperis and to proceed with assigned counsel as provided in
Pennsylvania Rule of Criminal Procedure 316, and (d) of his
qualified right to bail under Pennsylvania Rule of Criminal
Procedure 4010.B. In pertinent part, Rule 4010.B provides that
after sentencing bail may be allowed in the discretion of the judge
and that when bail is so allowed a condition of its continuance
shall be that an appeal be perfected.
BY THE COURT,
Wesley Ole~Jr., ~.
Jonathan R. Birbeck, Esq.
Sr. Assistant District Attorney
Bruce J. Warshawsky, Esq.
1 South Market Square
Harrisburg, PA 17101
Court-Appointed Counsel
for the Defendant
Adam S. Welker
P.O. Box 136
New Cumberland, PA 17070
: rc
COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
: NO. 1895 CRIMINAL 1992
v. : CHARGE: (A) AGGRAVATED ASSAULT
: (B) ENDANGERING WELFARE
: OF CHILD
ADAM S. WELKER : AFFIANT: OFFICER JAMES KARNS
IN RE: DEFENDANT'S POST-SENTENCE MOTION
BEFORE OLER, J.
OPINION AND ORDER OF COURT
Oler, J.
For disposition in this criminal case in which Defendant was
found guilty, following a bench trial, of aggravated assault~ and
endangering the welfare of a child2 is a post-sentence motion filed
by Defendants for a new trial.4 The ground for the motion is that
"[t]he verdict was against the weight of the evidence.''5 For the
~ Act of December 6, 1972, P.L. 1482, Sl, as amended, 18 Pa.
C.S. §2702(a)(1) (1993 Supp.).
2 Act of December 6, 1972, P.L. 1482, ~1, as amended, 18 Pa.
~C.S. ~4304 (1993 Supp.).
~ This is an optional motion under Pennsylvania Rule of
Criminal Procedure 1410.B.
4 Defendant's Post-Sentence Motion Pursuant to Pa.R.Crim. P.
1410.
5 Defendant's Post-Sentence Motion Pursuant to Pa.R.Crim. P.
1410.
"Under [Pennsylvania Rule of Criminal Procedure 1410.B(1)(a)],
the grounds for [a] post-sentence motion should be stated with
particularity .... [M]otions alleging that the verdict was against
the weight of the evidence must specify why the verdict was against
the weight of the evidence.
"Because [a] post-sentence motion is optional, the failure to
raise an issue with sufficient particularity in the post-sentence
motion will not constitute a waiver of the issue on appeal as long
,~s the issue was preserved before or during trial." Pa. R. Crim.
P. 1410, Comment.
No. 1895 Criminal 1992
reasons stated in this Opinion, the motion must be denied.
Statement'of Law
Motion for new trial based on weiqht of 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 .... " Commonwealth v. Taylor, 324 Pa. Super.
420, 425, 471 A.2d 1228, 1230 (1984). "Whether a new trial should
be granted on the grounds that the verdict was against the weight
of the evidence is addressed to the sound discretion of the trial
court .... " Commonwealth v. Mumma, No. 1601 Criminal 1993, slip
op. at 1 (Cumberland Co. January 25, 1994) (Hess, J.). "A trial
court should award a new trial on the ground that the verdict is
against the weight of the evidence only when the ... verdict is so
contrary to the evidence as to shock one's sense of justice and
~ake the award of a new trial imperative so that right may be given
another opportunity to prevail." Commonwealth v. Manchas, Pa.
Super. , , 633 A.2d 618, 622 (1993), citinq Commonwealth v.
Whitney, 511 Pa. 232, 239, 512 A.2d 1152, 1155-56 (1986). This
rule applies to a bench trial. Commonwealth v. Dehoniesto, 425 Pa.
Super. 83, 624 A.2d 156. allocatur denied, Pa. ~, 634 A.2d
217 (1993).
In this context, it has been noted that "the factfinder is
entitled to believe all, part or none of the evidence adduced at
trial .... A determination of credibility lies solely within the
2
No. 1895 Criminal 1992
province of the factfinder .... [A]ny conflict in the testimony
goes to the credibility of the witnesses and is solely to be
resolved by the factfinder. Commonwealth v. Price, 420 Pa. Super.
256, 264, 616 A.2d 681, 685 (1992).
It has also been said that "[w]hen a motion for a new trial is
made on the ground that the verdict is contrary to the weight of
the evidence, ... [t]he ... court need not view the evidence in the
light most favorable to the verdict; it may weigh the evidence and
in so doing evaluate for itself the credibility of the witnesses."
Commonwealth v. Vogel, 501 Pa. 314, 324, 461 A.2d 604, 609 (1983)
(citation omitted), cert. denied, 465 U.S. 1104, 104 S. Ct. 1603,
80 L. Ed. 2d. 133 (1984).
Aqgravated assault. Under Section 2702(a)(1) of the Crimes
Code, "[a] person is guilty of aggravated assault if he ...
~ttempts 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.''6
"Bodily injury" is defined as "[i]mpairment of physical condition
or substantial pain,''7 and "serious bodily injury" is "[b]odily
injury which creates a substantial risk of death or which causes
serious, permanent disfigurement, or protracted loss or impairment
6 Act of December 6, 1972, P.L. 1482, §1, as amended, 18 Pa.
C.S. 2702(a)(1) (1993 Supp.).
? Act of December 6, 1972, P.L. 1482, ~1, 18 Pa. C.S. §2301.
3
No. 1895 Criminal 1992
of the function of any bodily member or organ.''8
Intent to inflict an injury may be inferred from the
circumstances surrounding an incident in an appropriate case.
Commonwealth v. Polston, 420 Pa. Super. 233, 252, 616 A.2d 669, 679
(1992); allocatur denied, Pa. , 626 A.2d 1157 (1993); see
Commonwealth v. Fluharty, Pa. Super. , 632 A.2d 312 (1993);
Commonwealth v. Fierst, 423 Pa. Super. 232, 620 A.2d 1196 (1993).
Endanqering welfare of child. Under Section 4304 of the
Crimes Code, "a parent ... supervising the welfare of a child under
18 years of age commits a misdemeanor of the first degree if he
knowingly endangers the welfare of the child by violating a duty of
care, protection or support.''9 "A person acts knowingly with
respect to a material element of an offense when ...(i) if the
element involves the nature of his conduct or the attendant
~ircumstances, he is aware that his conduct is of that nature or
that such circumstances exist ... and (ii) if the element involves
a result of his conduct, he is aware that it is practically certain
that his conduct will cause such a result.''~°
8 Act of December 6, 1972, P.L. 1482, §1, 18 Pa. C.S. ~2301.
9 Act of December 6, 1972, P.L. 1482, ~1, as amended, 18 Pa.
C.S. 4304 (1993 Supp.).
~0 Act of December 6, 1972, P.L. 1482, §1, 18 Pa. C.S. 302;
see id. §103.
4
No. 1895 Criminal 1992
Statement of Facts
This case involved injuries to an infant daughter of Defendant
and a woman named Vicki Ferguson.~ Within the first two months of
her life,~2 the child, Jennifer Rose Welker,~3 sustained sixteen rib
fractures,TM a broken wrist,~ a broken leg,~6 and severe injury to
her brain.~7 As of the age of twenty months, when trial was held,~8
Jennifer's right arm and hand were usually held in an L-shape and
fist,~g she walked with a brace and pronounced limp,2° she had
difficulties with balance,2~ her head had not grown very much since
~ N.T. 13, Commonwealth v. Welker, No. 1895 Criminal 1992
(Cumberland Co.) (hereinafter N.T. __.).
~ ~2 N.T. 189.
~3 N.T. 13.
~4 N.T. 312-13, 321.
~ N.T. 315.
~6 N.T. 316.
~7 N.T. 311, 318-19.
~8 Jennifer was born on April 24, 1992. N.T. 13. Trial was
held on January 3, 4 and 5, 1994.
N.T. 190.
N.T. 191, 197.
N.T. 194-95.
5
No. 1895 Criminal 1992
she was eight months old,22 and her right visual field was absent.2~
On a brighter side, she is a pretty child24 and has been placed with
a lovely foster mother.25
In support of the prosecution, the Commonwealth presented the
testimony of thirteen witnesses, including two physicians and the
child's mother, and eighteen exhibits. On behalf of Defendant, the
testimony of two witnesses -- a nurse and Defendant's father~ -- and
eight exhibits were presented.
The child's mother, Vicki Ferguson, testified for the
Commonwealth that she was twenty-two years old,2? worked as a
cashier at a McDonald's in York, Pennsylvania,~" had graduated from
high school,29 and had been a special education student.3° She
identified Defendant as a former live-in boyfriend,3~ and stated
that on April 24, 1992, a daughter, Jennifer Rose Welker, was born
22 N.T. 198.
~ N.T. 286.
24 N.T. 198.
25 Shawna Hosey. N.T. 187-201.
26 Defendant did not testify himself.
~7 N.T. 9.
28 N.T. 10.
29 N.T. 9.
30 N.T. 10.
3~ N.T. 13.
6
No. 1895 Criminal 1992
of their relationship.~2 Neither she nor Defendant was employed at
that time, she said,33 and they lived in an apartment in Lemoyne,
Cumberland County, Pennsylvania, sleeping in the same room as the
baby.~4 For motor vehicle transportation, they depended generally
upon a friend.~s
With the exception of a single one- or two-hour period when
the child's maternal grandmother watched her, the child was not
cared for by family members other than herself and Defendant,
according to her testimony.36 In the seven weeks or so following
the child's birth, she stated, she saw Defendant throw the child
up some steps in a car seat, dump her over in the car seat, bang
her head on the floor, stick his finger down her throat, and leave
her alone in a bathtub twice.37
She testified that the incident involving the stairs occurred
~hen Jennifer was two or three weeks old, and that Defendant
"[t]hrew the car seat up the steps, like 12 of them, and he said,
let's see if, you know, the belt buckle works.,,~8 With respect to
N.T. 13.
N.T. 15.
N.T. 14-18.
N.T. 16-17, 21.
N.T. 23; see also N.T. 53; but see N.T. 117.
N.T. 36-37.
N.T. 38-39.
7
No. 1895 Criminal 1992
the dumping incident, she engaged in the following exchange:
Q You told us there was another time
when you saw Adam, what you referred to as
dumped the car seat with Jennifer in it,
something about when he was watching TV. Tell
me a little more about that?
A Well, when she started crying, I was
making the bottle for her, and he told me to
hurry up. I told him, I can't hurry up no
faster than what I'm doing because of the
bottles don't heat up as quick.
Q Okay. What did he do to Jennifer?
A Dumped the car seat over with her
inside.
Q What did he say about flipping her
car seat over?
A He just told me he can't stand babyies
[sic] crying.39
As to the head-banging incident, the child's mother stated
that Defendant "grabbed her behind her head and started banging
it.,.40
Q Did he hit her more than once against
the floor?
A Yes.
Q Was she crying at the time, if you
recall?
~9 N.T. 41-42.
40 N.T. 45.
8
No. 1895 Criminal 1992
A Yes.41
She testified that she "tried to take her from him, but he says,
I'm going to do this."42
Q Did his banging Jennifer's head
against the floor seem to stop Jennifer from
crying?
A Yes.
Q Did he eventually give Jennifer to you
after he got done banging her head against the
floor?
A Yes.
Q Was she conscious if you recall?
A I just can't remember.4~
In connection with the incident involving a finger in the
child's throat, the mother testified that it occurred in the
bedroom, that the baby was crying, that the mother went to get a
~ottle to feed her, and that when she returned "he had his finger
down her throat.''44
With respect to the bathtub incidents, she testified that in
the first such occurrence she returned to the bathroom to find that
Defendant had unexpectedly left the child alone in the bathtub,
that water was "like half" over her face, that she took her out of
N.T. 45.
N.T. 45-46.
N.T. 46.
N.T. 46-47.
9
No. 1895 Criminal 1992
the tub and started pressing on her stomach, "and water started
coming out," and that the baby was "fine after that, after all the
water came out.''45 As to the second occurrence, the mother
testified that she discovered Jennifer in the bathtub with part of
her face under the water as Defendant spoke on the telephone, that
she yelled for Defendant but he did not come, that she got her out
of the tub onto the floor and started pressing on her stomach, and
that Defendant eventually came into the bathroom.46 Defendant,
according to the mother's testimony, pushed her back, told her to
make the rest of the child's formula, and started pressing on the
child's stomach.47 She engaged in this exchange:
Q Did you come back into the bathroom to
see what was going on?
A Yes, after I was done.
Q What was Jennifer's condition?
A She just didn't look like Jennifer.
Q Was she conscious?
A She would respond, but not well.48
According to the mother, there was also an occasion when she
returned home from the store and was told by Defendant that "he
N.T. 48-49.
N.T. 49-51.
N.T. 51.
N.T. 52.
10
No. 1895 Criminal 1992
stuck [Jennifer] in the freezer.,,49 She stated that the child had
a small freezer burn on her left arm, and that Defendant directed
her not to call a doctor,so
The mother testified that following a family trip to the
shore, Jennifer was "fine Monday; and Tuesday morning[, June 16,
1992,s~] she woke up with a high-pitched scream.-52
Q Uh-huh?
A And I made a bottle for her, and her
bottle was - I fed her and changed her. Then
the formula came out her mouth and her nose.s3
According to the mother's testimony, she called Harrisburg
Hospital, and she and Defendant got a friend to drive them there
with Jennifer.s4 From Harrisburg Hospital, the child was
transferred to the Hershey Medical Center, she said.ss Jennifer has
since remained under the control of Cumberland County Children and
Youth Services, according to her testimony,s6
She stated that she had subsequently pled guilty to
N.T. 54.
N.T. 55-56.
N.T. 68-69.
N.T. 59.
N.T. 59-60.
N.T. 60-61.
N.T. 62.
N.T. 63.
11
No. 1895 Criminal 1992
endangering the welfare of a child.~7 Sentencing was pending at the
time of her testimony.~8
On cross-examination, the mother testified that she had
initially told authorities about the bathtub incidents only,
because she was afraid of Defendant;~9 that she continued to live
with him until January of 1993;6° that he kicked her out in that
month;6~ and that she was more mad at Defendant for kicking her out
than for what he did to Jennifer.62 She agreed that the first time
she told authorities about the non-bathtub incidents was after
being kicked out.63 Defendant threatened her against telling what
he had done, according to her testimony.64
The mother admitted that she had problems remembering things,
and was subject to blackouts when she lived with Defendant before
Jennifer was born.6~ She said that she recalled a time when
~? N.T. 65.
~8 N.T. 65.
~9 N.T. 73.
60 N.T. 75.
6~ N.T. 76.
62 N.T. 77.
~3 N.T. 78.
64 N.T. 81.
~ N.T. 82-83.
12
No. 1895 Criminal 1992
Defendant's mother baby-sat the child.66 She also testified that
she remembered Jennifer's slipping out of her hands once during a
bath at the age of four or five weeks,67 and that on occasion she
would be alone with the child for an hour or so when Defendant was
out.68 The head-banging incident she believed, according to her
testimony, occurred after the family's trip to the shore.~9
Finally, the mother testified that she had initially been
charged with both aggravated assault and endangering the welfare of
a child.7° She acknowledged that the maximum penalty for aggravated
assault was twenty years, as opposed to five years for the offense
to which she was permitted to plead.TM
John Bashore was called as a witness for the Commonwealth, and
testified that in response to a call from the mother he drove
Jennifer to the hospital on the day of her admission.72 He stated:
A ... [I]t was about 20 after 7 when I
got [to their apartment]. I went into the
apartment, and the baby was laying in the car
seat when I got there and just flat laying
there, wasn't making any noise, wasn't moving,
N.T. 117.
N.T. 119-20.
N.T. 139-40.
N.T. 147.
70 N.T. 163.
N.T. 164 .
N.T. 169-72.
13
No. 1895 Criminal 1992
was just laying there looking straight ahead.
Q Eyes open?
A Oh, yes, but you could tell something
was seriously wrong ....
He said that in the past he had seen Defendant pinch or nip the
child to wake her up.TM On one occasion, he stated, Defendant "said
he just couldn't handle it anymore, being around the baby crying.,,7~
Shawna Hosey, the child's foster mother, testified that when
she "went to Hershey Medical Center to pick her up[, t]here was an
infant laying in bed, head totally to the left and eyes totally to
the left. You had to really coax and prod her to center and look
to the right. Her head was funny looking to me.''7~ She continued:
Like I said, I had been a mom for almost 20
years, and I've baby-sat for all those years.
I've had experience with a lot of children.
And I don't mean it to sound unkindly, but she
looked like an alien baby. She just didn't
look like a normal baby to me.??
Over time, Ms. Hosey testified, "Is]he got cute. She grew on me.''~8
The child's maternal grandmother, Bonita Pierre, testified
that on one occasion when the child was about four weeks old she
~3 N.T. 170.
74 N.T. 176.
~ N.T. 178.
~8 N.T. 188-89.
77 N.T. 189.
7, N.T. 189.
14
No. 1895 Criminal 1992
baby-sat her for an hour or two, without incident.TM On that
occasion, she said, she reprimanded Defendant for throwing the
child up in the air "a little bit.',8° Defendant responded "she
likes it," according to her testimony.8~ On cross-examination, she
testified that during blackouts her daughter acted "real mean.''82
Defendant's twelve-year-old brother, Ben Welker, testified
that in June of 1992 he was one of the persons who went to the
shore with Defendant, Jennifer, and Jennifer's mother;8~ that he saw
Defendant throw the child into the air about five times;8~ and that
Defendant picked a scab off the child's face with a fingernail,
saying something to the effect that "she wouldn't like it getting
picked off her face.''Ss He said that the child cried when he did
it.86
Robert Moses, Defendant's fifteen-year-old stepbrother,
testified that he was also on the shore trip and saw Defendant
N.T. 205-06.
N.T. 207.
N.T. 207.
N.T. 210.
N.T. 214.
N.T. 214, 216.
N.T. 215.
N.T. 216.
15
No. 1895 Criminal 1992
throwing Jennifer into the air.87 Margaret Sheets, a registered
nurse at Harrisburg Hospital, testified that she had received the
phone call from the child's mother concerning a baby in distress on
June 16, 1992, at 6:30 a.m.8"
Julie Hughes, a friend of Defendant and the child's mother,
testified that after Jennifer had been hospitalized at Hershey
Medical Center Defendant told her that when he was bathing the
child she "almost drowned in the tub a few times [and] that he had
to use CPR.''89 On cross-examination, Ms. Hughes stated that she
felt Defendant's behavior had changed for the better after Jennifer
was born.9°
James E. Karns, a police officer with the Borough of Lemoyne,
Cumberland County, testified that he interviewed Defendant on June
17, 1992.~ In the interview, which was tape-recorded and
~ranscribed,~2 Defendant related two instances of bath water
ingestion by the child, necessitating "doin like a CPR thing" -- one
on Friday evening, June 12, 1992, and one a week or two
,7 N.T. 221.
8" N.T. 225-27, 230.
,9 N.T. 236.
90 N.T. 244-45.
9~ N.T. 249-50.
~2 N.T. 251. The transcript of the interview is
Commonwealth's Exhibit 8.
16
No. 1895 Criminal 1992
previously;93 he proffered these incidents as explanations for what
appeared to be two non-simultaneous episodes of rib fracturing.94
He stated that at the shore on Sunday, June 14, 1992, Jennifer's
stroller tipped over;9s that at home on Monday she hit her lip on
a swing set;96 and that on Monday evening she was having trouble
breathing and was not very responsive during a bath.~?
Defendant told Officer Karns that on Tuesday morning, June 16,
1992, Jennifer awoke with a high-pitched scream,~8 that "her eyes
were closed, she couldn't keep her eyes open and she was just like
twitchin around,,,9~ and that he told the child's mother to arrange
for a ride to the hospital.~°0 He stated to the officer that he was
"shocked at the condition she['s] in.''~°~ He said that he had been
avoiding the police because he thought they would take him to
jail.~°2
Commonwealth's Exhibit 8, at 4-6, 32.
Commonwealth's Exhibit 8, at 32.
Commonwealth's Exhibit 8, at 7-8.
Commonwealth's Exhibit 8, at 13-14.
Commonwealth's Exhibit 8, at 15-16.
Commonwealth's Exhibit 8, at 3.
Commonwealth's Exhibit 8, at 3.
Commonwealth's Exhibit 8, at 3.
Commonwealth's Exhibit 8, at 33.
Commonwealth's Exhibit 8, at 34.
17
No. 1895 Criminal 1992
Officer Karns further testified that he arrested Defendant on
Wednesday, October 14, 1992.~°3 At that time, according to the
officer, Defendant "maintained his previous position of having no
knowledge of how or who may have caused the child's injuries. He
maintained that he did not cause the injuries and said that he had
no knowledge of Ferguson, being Vicki, having injured the child
either.,,~04
James W. McManaway, M.D., and Danielle Boal, M.D., testified
on behalf of the Commonwealth as to the child's injuries.~°5 Dr.
McManaway was qualified as an expert in the field of pediatric
ophthalmology,TM and stated that because of damage to the left side
of Jennifer's brain~°7 she "could not see to the right half of
space.''~°8 This loss of vision, according to Dr. McManaway, was
"very very likely to be permanent.,,~°9 The brain injury involved,
~he stated, was not conceivably self-inflicted,~0 seemed to be the
N.T. 256.
N.T. 257.
N.T. 276-94; 294-333.
N.T. 279.
N.T. 284, 289.
N.T. 284.
N.T. 286.
N.T. 287.
18
No. 1895 Criminal 1992
result of a reduction in circulation of blood,TM and would not
likely have been the result of a swing accident of the type
described previously or water ingestion.~2
Dr. Boal was qualified as an expert in the field of pediatric
radiology.~3 She testified that "[Jennifer's brain] had so much
swelling that actually ... part of her brain was herniating across
toward the right side" and that there was "a close-down of the
blood supply to [the] left side of [the child's] brain, along with
hemorrhage over that convexity. And it's most in keeping, I would
think, with some sort of a pressure on her carotid or the big blood
vessel that goes to that left hemisphere.,,~4 She continued:
The fact that there's blood there, too, means
to me that she probably had some shaking along
with it in order to get the blood over there.
Usually you have movement of the brain within
the skull from shaking, and you tear the
~ bridging veins that lie over the surface of
the brain.TM
"It was most consistent, in my opinion, to be pressure, a
strangulation, shaking type of injury that completely took out that
left hemisphere because of the compromise in blood supply and
N.T. 288.
N.T. 288-89.
N.T. 298.
N.T. 302-03.
N.T. 303.
19
No. 1895 Criminal 1992
congestion of the carotid.,,~
Dr. Boal testified further that Jennifer "had six fractures
involving the right thorax" and ten involving the left.TM Some, in
her opinion, were seven to ten days old as of the xray examination
on June 16, 1992, and others were from two weeks to a month old.TM
She also diagnosed "a little tiny corner fracture at the end of the
radius, right at the [left] wrist," which she could not date,~g and
a fracture of the left tibia, occurring around June 16, 1992.~2°
She said that the brain damage probably occurred within twenty-four
hours of June 16, 1992.TM
Dr. Boal testified that in her experience Jennifer's brain
injuries were not consistent with disease or self-infliction.~
She said they were indicative of trauma.~ Rib fractures of the
type sustained by Jennifer, according to her testimony, "are seen
~ith shaken baby and abuse and not in any other situation.,,~24
N.T. 303-04.
N.T. 313.
N.T. 314.
N.T. 315.
N.T. 316.
N.T. 320.
N.T. 320-21.
N.T. 320.
N.T. 323.
20
No. 1895 Criminal 1992
Mary Ann Potter, Defendant's mother,~2s testified that when her
son "was playing, I guess he thought he was playing with her, he
would throw [the baby] up in the air.''~26 She said that Defendant
told her about an incident in which he left the child in the tub
and then had to give her CPR.~27 On one occasion, she stated, she
was the child's baby-sitter.~8
The Commonwealth's final witness was Norman Chronister, a
detective with the office of the Cumberland County District
Attorney.~29 He testified that he conducted an interview with
Defendant several weeks after his arrest.~3° The interview was tape
recorded and transcribed;~3~ in transcribed form, it comprised 199
pages.~
Defendant's statements to Detective Chronister differed
markedly from those he made to Officer Karns. In this interview,
~ne portrayed the child's mother as inept and disinterested in
N.T. 336.
N.T. 338.
N.T. 339.
N.T. 341.
N.T. 346.
N.T. 347. The statement was taken on October 30, 1992,
and November 10, 1992, according to his testimony. Id.
~ N.T. 348.
~2 The transcript of the statement is Commonwealth's Exhibit
15.
21
No. 1895 Criminal 1992
Jennifer,TM and said "she used to, uh, smack the baby around when
she got upset.',~4 He said, "she would put the baby in her arms
and like spin around in a circle. I said you're gonna make the
baby dizzy ....
He told Detective Chronister the mother would fly off the
handle when the child cried.TM One time, he said, she "busted in
the doors, picked the baby up by the neck and put it against the
wall.,,137
He said that on Friday, June 12, 1992, the child's mother was
administering a bath to the child in the bathtub. She called for
Defendant, who arrived to hear her exclaim, "[O]h my god, the baby
drowned," according to his statement. He said that he thereupon
gently placed the baby on the floor face up and pushed on her
stomach. He said that the mother then did likewise, using more
~force.TM In this regard, he said, "it is my belief that she put
more pressure on the baby, on the baby's ribs or stomach or
Commonwealth's Exhibit 15, Tape I, at 1-13.
Commonwealth's Exhibit 15, Tape I, at 13.
Commonwealth's Exhibit 15, Tape I, at 22.
Commonwealth's Exhibit 15, Tape I, at 36.
Commonwealth's Exhibit 15, Tape I, at 37.
Commonwealth's Exhibit 15, Tape I, at 48-52; id , Tape II,
at 1-7, 9-25. ·
22
No. 1895 Criminal 1992
whatever than what I did.''~39
On Saturday, June 13, 1992, he said, he accidently dropped the
child's car seat as he carried her,~4° causing her head to strike a
wooden crate.TM At the shore later that day, the child's stroller
fell over backward, he told the detective.TM
Defendant denied throwing the baby up in the air "like my
brothers said that I did" at the shore.~4~ With respect to the
alleged scab incident, he said "[t]he only thing I was doing was
picking some of the puss off around her lip so it would heal
better.''~4 The lip injury, he said, resulted from a shopping cart
accident about three weeks before.~s
He said that the child seemed normal when they left the shore
on the morning of Sunday, June 14, 1992, although she was a little
fussy riding home.TM Nothing unusual happened with the child
~during the day on Monday, June 15, 1992, according to his
Commonwealth's Exhibit 15, Tape II, at 5.
Commonwealth's Exhibit 15, Tape II, at 27.
Commonwealth's Exhibit 15, Tape II, at 27.
Commonwealth's Exhibit 15, Tape II, at 43-49.
Commonwealth's Exhibit 15, Tape III, at 2.
Commonwealth's Exhibit 15, Tape III, at 3.
Commonwealth's Exhibit 15, Tape III, at 3.
Commonwealth's Exhibit 15, Tape III, at 7-8.
23
No. 1895 Criminal 1992
statement.~47 But, he said, "when we gave the baby the bath that
night that's when I believe the head injury or injuries any
injuries could have been caused ....
Defendant proceeded to relate an incident occurring around
midnight of that day when he was giving the child a bath and the
mother was occupying herself in the kitchen.~49
"IT]he phone rang,"
he said. "I was expecting a call.,,~50
Q From who?
A I believe John [Bashore]. He was
supposed to call me from [Bashore's place of
employment]. I believe that's who it was.TM
He said that he "hollered for [the child's mother] to come
back and watch the baby.,,~52
He answered the telephone, spoke to
someone - possibly Mr. Bashore -- and returned to the bathroom,
according to his statement.~s~
A ... Vickie was taking the baby out of
the tub and the baby's face was red.
Q Uh-huh.
Commonwealth's Exhibit 15, Tape III, at 11-14.
Commonwealth's Exhibit 15, Tape III, at 15.
Commonwealth's Exhibit 15, Tape III, at 16.
Commonwealth's Exhibit 15, Tape III, at 17.
Commonwealth's Exhibit 15, Tape III, at 17.
Commonwealth's Exhibit 15, Tape III, at 17.
Commonwealth's Exhibit 15, Tape III, at 19-22.
24
No. 1895 Criminal 1992
A And she was hysterical, she said that
the baby was having trouble breathing.~54
Defendant told Detective Chronister that he laid the child on
the floor, pressed on her stomach, flipped her over onto her
stomach, pressed on her back, held her up and performed a Heimlich-
type maneuver, and shook her.~55
A So all along, you know, I'm thinking
all [sic] my god, you know, what's going on
here. What'll I do next, you know. So, I put
her up against my chest with her head under my
chin just about and started, you know, trying
like to.
Q You have her back against your chest
now.
A Yea.
Q Correct, okay.
A And I tried under her stomach like,
pushing in and pushing up trying to get the
water to come out of her stomach and when I
did that she threw up on me, all over my legs
and my.
Q Uh-huh.
A And the bottom of my shirt.TM
The mother then put the child down "on her back and pressed on
her stomach a little bit," according to Defendant, but he told her
to "knock it off because she was already, the baby already appeared
Commonwealth's Exhibit 15, Tape III, at 22.
Commonwealth's Exhibit 15, Tape III, at 23-28.
Commonwealth's Exhibit 15, Tape III, at 43.
25
No. 1895 Criminal 1992
to be breathing okay and stuff.,,~s?
However, notwithstanding her
breathing, the child was basically unresponsive, he said.~s8
Defendant stated that he also recalled that on the afternoon
of Monday, June 15, 1992, prior to the near-drowning incident,
Jennifer had hit her lip in a swing accident.~s9 He also advised
the detective that the mother admitted to him that she once dropped
the baby in the bathtub.~60 Defendant concluded, "I was an abused
child and I know how it feels. I would never intentionally hurt my
daughter .... .,~6~
Defendant, in his case-in-chief, presented the testimony of
Lois Wolfersperger, a registered nurse employed by Health Reach
Home Care in Harrisburg, Pennsylvania, as a "maternal child team"
worker.TM She stated that she counselled Defendant and the child's
mother on April 28, 1992, and May 11, 1992, with respect to child
~are.~ Defendant was taking care of the child in both
Commonwealth's Exhibit 15, Tape III, at 27.
Commonwealth's Exhibit 15, Tape III, at 43.
Commonwealth's Exhibit 15, Tape IV, at 5-6.
Commonwealth's Exhibit 15, Tape IV, at 10.
Commonwealth's Exhibit 15, Tape IV, at 7.
Defendant's Exhibit 9, at 60. Ms. Wolfersberger,s
testimony was admitted in the form of a transcript from another
proceeding, read to the Court. N.T. 372.
~6~ Defendant's Exhibit 9, at 61.
26
No. 1895 Criminal 1992
instances,TM she said, and the mother had difficulty grasping
concepts.~65
The other witness presented on behalf of Defendant was his
father, Howard John Welker.~66 He stated that, before Jennifer was
born, Defendant "was kind of a person looking for trouble all the
time.''~67 After she was born, he said, Defendant's behavior
improved and "he tried to be like a family''~8 and was protective of
the baby.~69 The mother, on the other hand, appeared "detached from
it, like it wasn't her baby," according to his testimony.TM
On cross-examination, Mr. Welker conceded that he had
remonstrated with his son at the shore about throwing the baby into
the air, and was met with the response that he had done the same
thing to Defendant.TM He also stated that at the shore Defendant
told him he had pulled a scab off Jennifer.TM
Defendant's Exhibit 9, at 62, 64.
Defendant's Exhibit 9, at 63.
N.T. 373.
N.T. 373.
N.T. 374.
N.T. 374.
N.T. 375.
N.T. 383.
N.T. 384.
27
No. 1895 Criminal 1992
Application of Law to Facts
In his brief in support of Defendant's post-sentence motion
for a new trial, based on the weight of the evidence, Defendant
argues that weaknesses in the Commonwealth's case in the areas of
causation, existence of an actus reus, and presence of a mens rea
warrant the relief requested.TM Notwithstanding an excellent
presentation in the brief, the Court is constrained to deny the
motion.
First, the evidence established that the child had in fact
suffered serious bodily injury over the course of the first few
weeks of her life. Second, the intervals, severity and nature of
her injuries belied any reasonable possibility that the harm which
she suffered was self-inflicted or the result of accident,
~nadvertence or poor parenting techniques. Third, the
circumstances of her environment indicated that either Defendant,
her mother, or both acting in concert had caused her injuries.
Fourth, the proposition that Defendant abused the child as a matter
of course was supported by several witnesses. And, fifth, the
testimony of the child's mother impressed the trier-of-fact as
ingenuous, albeit occasionally confused, whereas Defendant's
statements appeared to be disingenuous -- inconsistent, evasive and
24. ~73 Brief in Support of Defendant's Post-trial Motion, at 10-
28
No. 1895 Criminal 1992
self-serving.
In finding that Defendant had committed an aggravated assault
and endangered the welfare of a child on the basis of the evidence
recited above, the trier-of-fact, it is believed, acted within its
allotted province in determining credibility and resolving
conflicts in the evidence adversely to Defendant. Upon a review of
the record in response to Defendant's post-sentence motion, the
Court is of the opinion that the verdicts were not so contrary to
the evidence as to shock its sense of justice and make the award of
a new trial imperative so that right might be given another
opportunity to prevail. For this reason, the following Order will
be entered:
ORDER OF COURT
AND NOW, this %q~day of May, 1994, upon careful consideration
~6f Defendant's post-sentence motion for a new trial, the Motion is
DENIED.
PURSUANT to Pennsylvania Rule of Criminal Procedure 1410.B(4),
Defendant is advised (a) of his right to appeal from the judgment
of sentence to the Superior Court of Pennsylvania, within 30 days
of entry of this Order, (b) of his right to assistance of counsel
in the preparation of the appeal, (c) of his right to appeal in
forma pauperis and to proceed with assigned counsel as provided in
Pennsylvania Rule of Criminal Procedure 316, and (d) of his
qualified right to bail under Pennsylvania Rule of Criminal
29
No. 1895 Criminal 1992
Procedure 4010.B. In pertinent part, Rule 4010.B provides that
after sentencing bail may be allowed in the discretion of the judge
and that when bail is so allowed a condition of its continuance
shall be that an appeal be perfected.
BY THE COURT,
s/ J. Wesley Oler, Jr.
J. Wesley Oler, Jr., J.
Jonathan R. Birbeck, Esq.
Sr. Assistant District Attorney
Bruce J. Warshawsky, Esq.
1 South Market Square
Harrisburg, PA 17101
Court-Appointed Counsel
for the Defendant
Adam S. Welker
P.O. Box 136
New Cumberland, PA 17070
~ rc