March 21, 1980
COMMONWEALTH OF PENNSYLVANIA
GARY DASHER, APPELLANT
No. 2218 October Term, 1977, Appeal from the Conviction and Sentence of the Court of Common Pleas, Criminal Trial Division, Philadelphia County, Bill of Indictment No. 1195, August Term, 1976 Entered on July 13, 1977.
Before Jacobs, P.j., Cercone, Hoffman, Price, Van der Voort, Spaeth and Hester, JJ. Jacobs, former P.j., did not participate in the decision of the case.
Judgment of sentence and conviction affirmed on the opinion of Judge Stout of the court below.
IN THE COURT OF COMMON PLEAS FIRST JUDICIAL DISTRICT OF PENNSYLVANIA TRIAL DIVISION - CRIMINAL SECTION
COMMONWEALTH vs. GARY DASHER
AUGUST SESSIONS, 1976
GARY DASHER was found guilty of involuntary manslaughter on Bill No. 1195, August Sessions, 1976. He has appealed and has alleged only one error. He claims the verdict was against the weight of the evidence. That argument is without merit.
The victim of this homicide was GARY DASHER, JR., the three-months-old son of appellant who had been born prematurely April 20, 1976. He remained in the hospital until June 28. One month later, on July 28, the baby died.
About midnight, July 27, while appellant was undressing the baby, he hit his head on an iron part of his crib. The baby whined. Later when the baby cried, appellant picked him up by his night shirt collar, shook him and dropped him in his crib. Appellant then went to bed.
The baby whined. Appellant went in to see what was wrong and, having seen nothing, returned to bed. The baby continued to whine and, in the words of Mrs. Dasher, appellant "went stomping in there, hit the baby." She heard him hit five times. According to Mrs. Dasher, appellant said the baby's crying got on his nerves and "he cussed at him trying to tell him to shut up."
According to Mrs. Dasher, appellant beat her up and then went to sleep. The next morning appellant awakened, went in the baby's room, called his wife and began pounding the baby's chest and trying to give mouth-to-mouth resuscitation. He ran out of the house with the baby, stopped a policeman and said he thought the baby was dead. The officer took them to St. Joseph's Hospital.
Mrs. Dasher said that when she saw the baby that morning his hands, feet and lips were purple and his hand was cold and stiff. She said that she had heard her husband beat the baby on prior occasions when he had been drinking. He would always take the baby to another room, from his wife's presence, to commit these orutal acts but she would hear them.
DR. ROBERT J. SEGAL testified that the external examination of the body revealed patchy areas of fresh bruising over the lower portion of the chest, abdomen, back, buttocks and the posterior and lateral aspects of each thigh. There was also a small area of bruising on the left side of the jaw one inch from the midline. The internal examination revealed multiple bilateral rib fractures, totaling eighteen. In addition there was a laceration of the liver a contusion of the diaphram next to the lacerated liver and small bilateral subdural hermorrhages. There were 30 cc's of blood in the abdominal cavity.
In Dr. Segal's opinion, the cause of death was multiple injuries of the head, trunk and extremities. The manner of death was homicide. Dr. Segal said the injuries were the result of blunt trauma. Either a blunt instrument or a hand had been used to strike the child. The child had been beaten Dr. Segal said.
Dr. Segal said the laceration of the liver was not caused by the fracture of the ribs. He said the bilateral subdural hemorrhages could have been caused by shaking the child back and forth while he was held by the neck of a night shirt.
In a statement appellant gave to the police, he said the baby cried all night and that he gave him some medicine. He said that when he attempted to give him a bottle the following morning, he did not respond; that he gave him mouth-to-mouth resuscitation but it did not help and that he pounded his chest six times before he took him to the hospital. Appellant said he had struck the baby on the legs with a bush comb about a week before because he was crying but said he was just playing.
Appellant testified that the night before his son's death he had bumped his head on the crib rail while he was undressing him. About 1:30 or 2:00 a.m., the baby was still whining and appellant got up to attend him. Appellant then argued and fought with his wife because she had not arisen to see about the baby. Appellant said he went to sleep and that when he awoke about 7 a.m., the baby was still whining. He changed the baby, gave him medicine and fixed a bottle. He said the baby was breathing with a scratchy sound, gasping for breath. Appellant gave him artificial respiration and, when he failed to respond, took him to the hospital.
"The test for sufficiency of evidence is whether, accepting as true, all the evidence and all reasonable inferences deductible from such evidence upon which the trier of fact could have based his verdict, the evidence and inferences are sufficient in law to prove guilt beyond a reasonable doubt." Commonwealth v. Williams, 362 A.2d 244 (1976)
From Dr. Segal's testimony it is clear that the child died of multiple injuries. From Mrs. Dasher's testimony, which was much more credible than that of appellant, it is clear that the injuries were inflicted by appellant.
An application of the test for sufficiency to this evidence leaves the inescapable conclusion that appellant is guilty of involuntary manslaughter which is a death caused by the doing of a lawful or unlawful act in a reckless or grossly negligent manner. 18 P.C.C.A. 2504.
BY THE COURT:
JUANITA KIDD STOUT, J.
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