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COMMONWEALTH PENNSYLVANIA v. ALLEN LOMAX (10/30/81)

filed: October 30, 1981.

COMMONWEALTH OF PENNSYLVANIA
v.
ALLEN LOMAX, APPELLANT



No. 288 Philadelphia, 1980, Appeal from the Judgment of Sentence of the Court of Common Pleas of Philadelphia County, Criminal Division, at No. 1428 September Term, 1977

COUNSEL

Jack J. Bulkin, Philadelphia, for appellant.

Cynthia Severinsen, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Spaeth, Brosky and Hoffman, JJ.

Author: Brosky

[ 291 Pa. Super. Page 636]

Appellant was convicted by a jury of involuntary manslaughter on May 1, 1979. Post-verdict motions were filed and denied. Lomax was sentenced to serve two and one-half to five years imprisonment. This appeal followed.

[ 291 Pa. Super. Page 637]

Lomax contends that the trial court erred in reaching its decision. First, he states that the evidence submitted to the trial court was insufficient to establish his guilt beyond a reasonable doubt. Second, he asserts the Commonwealth failed to sustain its burden of proving causation beyond a reasonable doubt. Third, he proclaims the court instructed the jury improperly. And, fourth, he claims the trial court erred in allowing a sequestered Commonwealth witness to testify in rebuttal after that witness was excused as a Commonwealth witness. We affirm the decision of the trial court.

The standard of review with regard to the sufficiency of the evidence is whether viewing the evidence and all reasonable inference arising therefrom, in a light most favorable to the Commonwealth, it was sufficient to establish appellant's guilt beyond a reasonable doubt. Commonwealth v. Hoskins, 485 Pa. 542, 403 A.2d 521 (1979); Commonwealth v. Posavek, 278 Pa. Super. 265, 420 A.2d 532 (1980). When the evidence in the instant case is so viewed, it discloses that Tameka Lomax, the infant child of appellant and Elizabeth Anderson, was born on December 4, 1973. She was two months premature and after her birth remained in the hospital until February of 1974. The record indicates that after Tameka came home, she was beaten by the appellant on numerous occasions, often with significant force. Appellant, apparently also strapped her to her crib with his belt on one occasion and on others pushed her head into her pillow.

On March 19, 1974, Ms. Anderson noticed her child was having difficulty breathing and, accordingly, she told Lomax she wanted to take Tameka to the hospital. He told Ms. Anderson nothing was wrong. Then, Ms. Anderson went into another room to wash diapers and suddenly heard sounds of something hitting against something else coming from the room occupied by appellant and the baby. Then, Lomax called to Ms. Anderson that the baby was not breathing.

Ms. Anderson rushed to her child, cleared Tameka's nose of food coming out of it, and began to supply her child with

[ 291 Pa. Super. Page 638]

    air by mouth to mouth resuscitation. Tameka, however, did not respond. A rescue squad was called and it transported the child to a hospital. The baby never regained consciousness. The members of the rescue squad testified that appellant repeatedly stated while they attended to the child: "What have I done? What have I done?"

Ms. Anderson did not report Lomax to the police. She asserted that appellant instructed her to tell the police that the baby fell. She stated at trial that she followed Lomax's instructions because she was afraid he would beat her. However, Ms. Anderson states the appellant eventually admitted to her that he was responsible for the baby's death and Ms. Anderson then reported the incident to the police.

A medical examiner examined Tameka's body shortly after her death. He stated at trial that the child died because of injuries sustained by her which resulted from multiple, serious head injuries. The wounds evidently were sufficiently numerous that the examiner determined that they were caused over a period of time within the recent past and resulted from beatings. The examiner stated it was ...


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