No. 342 Special Transfer Docket, Appeal from Judgments of Sentence of the Court of Common Pleas of Delaware County, Criminal Division, No. 4434 B, D, E, F and G of 1977.
Robert A. Kosseff, Wilmington, Del., for appellant.
Sandra L. Gross, Assistant District Attorney, Media, for Commonwealth, appellee.
Cercone, President Judge, and Roberts and Lipez, JJ.*fn*
[ 273 Pa. Super. Page 43]
On January 17, 1978, a jury convicted appellant of voluntary manslaughter, simple and aggravated assault, recklessly endangering another person and endangering the welfare of a child. After denying post-verdict motions, the trial court sentenced appellant to consecutive terms of imprisonment of 5 to 10 years for voluntary manslaughter and 1 to 2 years for aggravated assault. Represented by new counsel, appellant contends that (1) trial counsel was ineffective; (2) the trial court improperly allowed admission of inflammatory photographs; and (3) the prosecutor engaged in prejudicial misconduct. We affirm.
Appellant was charged with beating to death a 7 year old girl whom he and his wife were planning to adopt. The girl, Amy Luck, suffered from Down's Syndrome, from which she was mentally retarded and had a valve defect in her heart. On July 29, 1977, a neighbor discovered Amy in appellant's home in a coma and badly injured. Only appellant was also in the house. The neighbor called police, who took Amy to a hospital. Two weeks later, Amy died from her injuries.
At trial, the Commonwealth presented a number of physicians who had examined Amy at the time of her admission to the hospital and one who had treated her about 2 weeks earlier. The physicians who saw Amy on July 29 described how she had been covered with bruises too numerous to count and other injuries. Each physician asked for an opinion of the cause of death stated that he believed that Amy had been beaten. Trial counsel cross-examined the physicians and attempted to compel them to withdraw their opinions on the cause of death. Each maintained, however, that the severity, extent and nature of the bruises and wounds could not have been caused by an accident or any means other than a beating.
[ 273 Pa. Super. Page 44]
The Commonwealth also presented a witness who testified that he had heard appellant say that Amy deserved to die. The Commonwealth established that the witness was convicted of a criminal charge, had a criminal record and that his probation officer had offered to write a letter to the judge responsible for the witness' sentence, recommending probation. The witness asserted, however, that he had not been promised any concession in return for his testimony and had testified because he felt a moral obligation to do so.
Appellant argues that trial counsel was ineffective because he did not present a medical witness to rebut the testimony of the physicians offered by the Commonwealth.*fn1 Appellant does not allege that a physician could have come to any other conclusion than that reached by the Commonwealth's witnesses or that he has located a physician willing to testify that the cause of death was other than by beating. Apparently, the medical evidence permitted only one conclusion. Counsel cannot be held ineffective for failing to find a witness who would dispute a conclusion with which no responsible physician would disagree. See generally Commonwealth v. Roach, 479 Pa. 528, 388 A.2d 1056 (1978).
Appellant argues that trial counsel was ineffective by cross-examining the Commonwealth's witnesses in such a way as to strengthen the Commonwealth's case. Counsel strenuously attempted to elicit from the Commonwealth's witnesses an admission that the injuries might have resulted from an accidental fall down a flight of stairs. The witnesses emphatically denied this possibility. It is difficult to see what other line of questioning trial counsel could have pursued in attempting to blunt the force of the Commonwealth's medical evidence. The only explanation appellant offered for the injuries was ...