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HomeMy WebLinkAbout92-2047 CriminalCOMMONWEALTH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. 2047 CRIMINAL 1992 CHARGE: (A) AGGRAVATED ASSAULT (B) SIMPLE ASSAULT MELISSA JANE SHENK (C) ENDANGERING WELFARE OTN: E073701 OF CHILDREN IN RE: DEFENDANT'S POST -TRIAL MOTIONS BEFORE OLER, J. ORDER OF COURT AND NOW, this 614 day of October, 1993, after careful consideration of Defendant's post -trial motions in arrest of judgment and for a new trial, the motions are DENIED, a presentence investigation report is ORDERED, and Defendant is DIRECTED to appear for sentencing at the call of the District Attorney. BY THE COURT, Wesley Oler, it.) - Thomas A. Placey, Esq. Assistant District Attorney Ellen K. Barry, Esq. First Assistant Public Defender Probation Office :rc COMMONWEALTH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. 2047 CRIMINAL 1992 CHARGE: (A) AGGRAVATED ASSAULT (B) SIMPLE ASSAULT MELISSA JANE SHENK (C) ENDANGERING WELFARE OTN: E073701 OF CHILDREN IN RE: DEFENDANT'S POST -TRIAL MOTIONS BEFORE OLER, J. OPINION AND ORDER OF COURT Oler, J. The present criminal case arises out of an episode occurring on August 24, 1992,1 in which Defendant allegedly slapped,' grabbed,' shoved into a wall,4 kicked,' bit,' and stomped upon' her 12 -year-old' daughter, Melissa.' Following a non jury trial on June 7, 1993, Defendant was found guilty of simple assault10 and endangering 1 N.T. 23-26, Trial, Commonwealth v. Shenk, No. 2047 Criminal 1992 (June 7, 1993) (hereinafter N.T. ). ' N.T. 27. 3 N.T. 27. 4 N.T. 29-30. b N.T. 32. B N.T. 29. 7 N.T. 30-31. a N.T. 23. 9 N.T. 22. 10 N.T. 64; See Act of December 6, 1972, P.L. 1482, §1, 18 Pa. C.S.A. §2701(a). 2047 CRIMINAL 1992 the welfare of a child;" a demurrer as to a charge of aggravated assault was sustained during the trial.12 Defendant filed post -trial motions in arrest of judgment and for a new trial. For the reasons stated in this Opinion, the motions must be denied. The evidence presented at trial was as follows: On Monday, August 24, 1992, Defendant lived at 226 Reno Avenue, New Cumberland, Cumberland County, Pennsylvania, with her husband (Melissa's stepfather)," an 18- or 19 -year-old daughter (Melissa's sister),1' a 17- or 18 -year-old son (Melissa's brother)," and a four-year-old step-granddaughter.18 On the afternoon of that day, Melissa was in the third -floor bedroom vacuuming when Defendant became upset with her because the vacuum cleaner was not "picking up- 1117 Melissa testified that Defendant slapped her18 and "grabbed behind my neck and held my arm and put my head down towards the carpet and told me to lick it up or pick it 11 N.T. 64; See Act of December 6, 1972, P.L. 1482, §l, as amended, 18 Pa. C.S.A. §4304 (1993 Supp.). 12 N.T. 46-47; see Act of December 6, 1972, P.L. 1482, §1, as amended, 18 Pa. C.S.A. §2702(a)(2) (1993 Supp.). 13 N.T. 22-23, 47-48. 14 N.T. 24, 48. 15 N.T. 24, 36, 48. 16 N.T. 48-49. 17 N.T. 25-26. 1s N.T. 27. 2 2047 CRIMINAL 1992 up [referring to the dirt on the floor]."19 Defendant's son, who was present in the room at the time, also testified that he observed Defendant "smack" Melissa on the back of the head and push her head toward the floor.20 Melissa further testified that Defendant bit her on the back of the arm.21 Melissa stated that Defendant shoved her against the wall and held her there with one hand on her neck and one hand on her hair." This testimony was corroborated by the son, who testified that he saw Defendant "pick her by her neck and push her up against the wall."23 He stated that he heard the back of Melissa's head strike the wall.24 In addition, Melissa testified that at some point during the occurrence in the third -floor bedroom Defendant kicked her in the stomach.25 Again, this was corroborated by the testimony of the son.28 Melissa testified in addition that, after the events in the bedroom had is N.T. 29. 20 N.T. 39. 2' N.T. 29. 22 N.T. 29-30. 23 N.T. 39. 24 N.T. 41. 25 N.T. 32. 26 N.T. 39-40. 2047 CRIMINAL 1992 transpired, she proceeded downstairs and was followed by Defendant.27 Once downstairs, Defendant stomped on Melissa's foot, according to the victim.28 The son testified that he had attempted to intervene during the episode, that Melissa had not fought back, and that their mother had "beat" her before.29 Melissa referred to the episode as one in which she was 11hurt.a30 Defendant's testimony was to the effect that during the episode in question she grabbed her daughter by the back of the arms and "tossed" her on the bed, slapped her, and grabbed her by the back of the neck while she was sitting on the bed." Defendant denied forcing Melissa's head to the floor and saying "lick it up or pick it up"; she also denied that she had kicked, bitten, or grabbed her daughter by the throat.32 Defendant conceded that Melissa was "very diminutive," and estimated the difference in weight between herself and her daughter at about 80 pounds.' Defendant testified that she had had the flu on this occasion," that her daughter was 27 N.T. 30. 29 N.T. 31. 29 N.T. 40-42. 30 N.T. 26. 31 N.T. 52, 61. 32 N.T. 61. 33 N.T. 63. as N.T. 47. 4 2047 CRIMINAL 1992 not vacuuming efficiently," and that she "wanted to get her attention."" The following day, Melissa was taken to the emergency department at Holy Spirit Hospital by her biological father and was examined by Salvatore N. Alfano, M.D., a board-certified emergency physicians' Melissa related to Dr. Alfano that Defendant had pushed her to the ground, pushed her into a wall, "[run] over her foot with a vacuum cleaner,... kicked her[,] and bit[ten] her in the arm.i38 Following an examination, Dr. Alfano wrote that "these wounds do seem compatible with the history that was said by the patient.t" Additionally, the Commonwealth offered as exhibits Melissa's medical records from Holy Spirit Hospital, which contained photographs of her injuries.40 Although some of the bruises were not readily apparent on the photographs, Dr. Alfano testified as to their visibility at the physical examination.41 Dr. Alfano testified that the force required to cause bruises of the nature of those that were present on Melissa would involve a fairly significant impact, more than 35 N.T. 52. 36 N.T. 53. 37 N.T. 5-6. m N.T. 10. 39 N.T. 12. " See Commonwealth's Exhibits 1 and 2. 41 N.T. 19. 5 2047 CRIMINAL 1992 just a casual bump of the sort one would get by walking into something.42 Additionally, Dr. Alfano testified that the bruises were not in locations one would expect for the types of injuries suffered in the pursuit of normal daily activities.' As to the bite mark which appeared on the back of Melissa's arm, Dr. Alfano testified "it would be difficult for someone to do it to themselves because it's on the back part of the arm and you really can't get that close enough to your teeth."" The Defendant has filed post -trial motions requesting an arrest of judgment or, in the alternative, a new trial.` Defendant contends that the evidence at trial was insufficient to show that the victim suffered bodily injury. Additionally, Defendant contends that she was administering corporal punishment in her capacity as a parent and, therefore, was within the scope of a justification defense under Section 509 (1) of the Crimes Code. See Act of December 6, 1972, P.L. 1482, §1, as amended, 18 Pa. C.S.A. §509(1) (1993 Supp.). In so contending, Defendant argues that the Commonwealth failed to meet its burden of proving that Melissa suffered extreme pain at the hands of Defendant.` 42 N.T. 16. 43 N.T. 17. 44 N.T. 17. ' See Defendant's Post -trial Motions. 46 See Defendant's Post -trial Motions, paragraph 4; Defendant's Brief in Support of Post- trial Motions. Cel 2047 CRIMINAL 1992 Motion in Arrest of Judgment. A motion in arrest of judgment "is a proper means of challenging the sufficiency of the evidence to support a conviction." 27 Standard Pennsylvania Practice §135:200, at 282 (1985). In reviewing a challenge to the sufficiency of the evidence, the court 'views the evidence presented and all reasonable inferences taken therefrom in the light most favorable to the Commonwealth as verdict winner. The test is whether the evidence, viewed in this light, is sufficient to prove guilt beyond a reasonable doubt." Commonwealth v. Douglass, 403 Pa. Super. 105, 115, 588 A.2d 53, 58 (1991). It is within the province of the fact finder to determine the weight to be given to each witness's testimony and to believe all, part, or none of the evidence. Commonwealth v. Tullius, 399 Pa. Super. 172, 175, 582 A.2d 1, 2 (1990), allocatur denied, 527 Pa. 645, 593 A.2d 418 (1991). A person is guilty of a form 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). "The wording of the statute expressly 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, "fi)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. 7 2047 CRIMINAL 1992 Polston, 420 Pa. Super. 233, 252, 616 A.2d 669, 679 (1992). Bodily injury is defined under Section 2301 of the Crimes Code as " RImpairment of physical condition or substantial pain. 1147 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), allocatur denied, 521 Pa. 611, 557 A.2d 343 (1989). In Ogin, the Court found the defendant guilty of 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. Id. The Superior Court of Pennsylvania held in Commonwealth v. Jorgenson, 341 Pa. Super. 550, 492 A.2d 2 (1985), rev'd on other grounds, 512 Pa. 601, 517 A.2d 1287 (1986), that striking a victim twice across the face was sufficient to sustain a conviction of the defendant for simple assault. A conviction of simple assault was similarly upheld in Commonwealth v. Bryant, 282 Pa. Super. 600, 608, 423 A.2d 407, 411 (1980), where a victim was thrown to the ground by an assailant. Viewing the testimony adduced at trial in the light most favorable to the Commonwealth, it can be reasonably inferred from the circumstances that Defendant had the specific intent to cause bodily injury to Melissa when she slapped her, grabbed her by the throat and hair and thrust her against the wall, bit her on the arm, kicked 47 See Act of December 6, 1972, P.L. 1482, No. 334, §l, 18 Pa. C.S.A. §2301. D 2047 CRIMINAL 1992 her in the abdomen and stomped on her.48 Thus, it was unnecessary that the Commonwealth show that Melissa sustained actual bodily injury. A reasonable inference can also be drawn, however, that Melissa did in fact suffer substantial pain, and thus actual bodily injury, when she was slapped, thrown, bitten, kicked and stomped. Accordingly, when the facts of the present case are viewed in the light most favorable to the Commonwealth, the evidence was more than adequate to support the verdict of guilty as to simple assault with respect to the aspect of attempted or actual bodily injury. Defendant contends that she was justified in using the force inflicted upon Melissa as a form of corporal punishment, since the Commonwealth failed to prove that her daughter suffered extreme pain during the episode .41 "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), allocatur 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) (1993 Supp.): The use of force upon or toward the person of another is justifiable if ... [t]he actor is the parent or guardian ... 48 See N.T. 64. 49 See Defendant's Post -trial Motions; Defendant's Brief in Support of Post -trial Motions. 0 2047 CRIMINAL 1992 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 of Pennsylvania 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. 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. "FMhen 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), allocatur denied, 521 Pa. 611, 557 A.2d 343 (1989). In addition, in such cases it would appear that the "fact finder [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. 10 2047 CRIMINAL 1992 Tullius, 399 Pa. Super. 172, 179, 582 A.2d 1, 4 (1990), allocatur 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), allocatur denied, 521 Pa. 611, 557 A.2d 343 (1989). Several appellate court decisions are helpful for factual reference in this area. In Tullius, the Superior Court of Pennsylvania held that a teacher's defense of justification under §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. at 179-80, 582 A.2d at 4 (1990). 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 Ogin, the Superior Court of Pennsylvania 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. at 127, 540 A.2d at 555 (1988). In the present case, the Commonwealth's evidence tended to show that the 11 2047 CRIMINAL 1992 smaller victim was slapped, thrown, bitten, kicked and stomped; that the purported cause of the episode was poor vacuuming technique; and that Defendant's conduct left visible injuries. It is a reasonable deduction that such force was designed or known to cause a substantial risk of gross degradation or pain or mental distress, and that this force far exceeded any importunities of the situation for punishment, prevention of misconduct, or promotion of the child's welfare. When the facts of the case are viewed in the light most favorable to the Commonwealth, the evidence was sufficient for a factfinder to reasonably conclude that justification had been disproved beyond a reasonable doubt. Motion for a new trial. "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). Granting 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 the testimony of the victim, which was substantially corroborated by Defendant's son, who was present during much of the episode. The Commonwealth also presented the testimony of Dr. Alfano, 12 2047 CRIMINAL 1992 who interviewed and examined the child in the emergency room of Holy Spirit Hospital the following day, and who testified that the injuries visible on his patient were consistent with the history that she had given him. Pictures of the injuries were also admitted into evidence. The Defendant's testimony, while not conceding all of the conduct attributed to her, tended to support the proposition that she had lost her temper with forceful consequences. Under these circumstances, it is not believed that an evaluation of the weight of the evidence warrants a determination that the verdict was contrary to the evidence. For these reasons, the following order will be entered: ORDER OF COURT AND NOW, this / 6( day of October, 1993, after careful consideration of Defendant's post -trial motions in arrest of judgment and for a new trial, the motions are DENIED, a presentence investigation report is ORDERED, and Defendant is DIRECTED to appear for sentencing at the call of the District Attorney. Thomas A. Placey, Esq. Assistant District Attorney BY THE COURT, J. Wesley Oler, Jr. j J. " 13 2047 CRIMINAL 1992 Ellen K. Barry, Esq. First Assistant Public Defender Probation Office :rc 14