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COMMONWEALTH PENNSYLVANIA v. DEBBY OGIN (04/11/88)

filed: April 11, 1988.

COMMONWEALTH OF PENNSYLVANIA
v.
DEBBY OGIN, APPELLANT. COMMONWEALTH OF PENNSYLVANIA V. GLYNN WILDONER, APPELLANT



Appeal from the judgment of sentence May 14, 1986 in the Court of Common Pleas of Luzerne County, Criminal Division, at No. 1295, 1309 of 1984. Appeal from the judgment of sentence May 14, 1986 in the Court of Common Pleas of Luzerne County, Criminal Division, at No. 1294 of 1984.

COUNSEL

Albert J. Flora, Jr., Wilkes-Barre, for appellants.

Joseph C. Giebus, Assistant District Attorney, Wilkes-Barre, for Com., appellee.

Cirillo, P.j., and Cavanaugh, Brosky, Rowley, Wieand, McEwen, Beck, Tamilia and Popovich, JJ. Cavanaugh, J., files concurring opinion.

Author: Beck

[ 373 Pa. Super. Page 118]

This is a consolidated appeal by a mother and father who were convicted by a jury and sentenced for using excessive force against their baby daughter. The issue is whether the evidence adduced at trial supports the jury verdict that appellants are guilty of simple assault*fn1 and endangering the welfare of children.*fn2 We find that the evidence is sufficient to establish appellants guilt, and we affirm.

Appellants' convictions were based on three separate incidents involving their daughter April. Viewed in the light most favorable to the Commonwealth as verdict winner, the facts are as follows.

One day during the summer of 1983, Commonwealth witness Ann Marie Blaine observed appellants' children April and Glynn Jr. playing outside the building where the family lived. At this time, Glynn Jr. was three years old and April was approximately seventeen months old. Glynn Jr. rode his Big Wheel down to the end of the block and April followed him. Appellant Debby Ogin ran after the children, told them to stay in front of the building, and slapped April on the rear end. Soon afterward, Glynn Jr. rode down an alley and April again followed him. Debby ran after the children and grabbed April. Blaine testified on direct examination:

A. Debby was dragging April.

Q. You say dragging. Can you describe for the jury what you mean by that?

A. She had her by the one arm and was dragging her. Her feet were touching the ground. She was stumbling

[ 373 Pa. Super. Page 119]

    to try to walk. And she flung her like an old rag doll against the building. She said, I told you to sit there.

Q. When you say she flung her against the building, please, describe to the jury exactly what Debby Ogin did to her daughter.

A. She had her by the arm. She come around the building with the child by the arm and she threw her up against the building by one arm.

Q. What part of April's body hit that building?

A. The whole back of her. And she -- when she hit the building, she kind of stumbled over and hit the steps. And they're cement steps there.

Q. What happened after April had been thrown against the wall?

A. The child was screaming for quite a few minutes, and then Debby took her and put her inside the stairway and shut the door.

R. at 25-27. The witness also stated that she observed a small red mark that resembled a brushburn on the side of April's face.

The second incident occurred the following winter. On December 20, 1983, Debby Ogin took her children to see a Santa Claus at the local firehouse. They were accompanied by Audrey Wampole, a neighbor, and by Ann Marie Blaine. Wampole held April for the first hour they waited and then set her down. April approached her mother and gestured that she wanted to be picked up. Debby Ogin responded by slapping April with the back of her hand causing April to stumble. Ten minutes later, April approached her mother and reached out her arms to be picked up. Debby Ogin again hit April in the face with the back of her hand, this time with "extreme force". R. 34. April fell and hit her back against a brick wall. Afterward, Blaine noticed a lump on the back of the child's head.

The third incident took place in February, 1984, and involved Glynn Wildoner, April's father. Doris Whitmire, Mr. Wildoner's cousin, ...


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