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COMMONWEALTH PENNSYLVANIA v. RICKY R. NISSLY (09/16/88)

filed: September 16, 1988.

COMMONWEALTH OF PENNSYLVANIA
v.
RICKY R. NISSLY, APPELLANT



Appeal from the Judgment of Sentence in the Court of Common Pleas of Lancaster County, Criminal Division, No. 2607-86

COUNSEL

John J. Duffy, West Chester, for appellant.

James J. Karl, Assistant District Attorney, Lancaster, for Com., appellee.

Tamilia, Kelly and Hester, JJ.

Author: Tamilia

[ 379 Pa. Super. Page 88]

Appellant was convicted by a jury of murder of the third degree in the death of his eleven week old son, Jeremiah. Post-trial motions were filed and denied by Order of the trial court dated November 10, 1987 and appellant was sentenced on January 8, 1988 to pay a fine of five hundred dollars ($500) and was placed on probation for a period of five years. This appeal is from that judgment of sentence.

Jeremiah was born on January 30, 1986, weighing only two pounds, five ounces, after being prematurely delivered through an emergency Caesarean section. He was cared for in the hospital until March 24, 1986 when he went home to live with his father, mother and two sisters at his grandparents' residence. On April 18, 1986, Jeremiah was found dead in his bassinet by his grandfather, appellant's father.

[ 379 Pa. Super. Page 89]

The medical testimony offered at trial by the Commonwealth was uncontroverted -- Jeremiah died from a brain hemorrhage which could only have resulted from a violent shaking. The autopsies which were conducted following Jeremiah's death also revealed he had suffered eight fractures of his extremities and at least thirty fractures of his ribs, all of which occurred no more than four weeks before his death with most occurring much closer to his death. Other than the hemorrhage which caused his death, Jeremiah had suffered two previous brain hemorrhages, one being several days old and the other being several hours old. Expert testimony established the time of Jeremiah's death was most likely between 4:00 and 5:00 a.m. The experts concluded, therefore, the injury occurred one-half hour to an hour prior to death or between 3:00 and 4:30 a.m. Appellant testified he worked on his motorcycle engine on the evening of April 17 until 2:30 or 3:00 a.m. of the next morning. The others in the house at that time, appellant's wife, two daughters, father, grandfather and two cousins, had gone to bed earlier. When appellant finished working on the engine, he went inside to go to bed but found his wife up with their two daughters who were crying. Appellant tried to help his wife calm down the girls but they would not stop crying. Jeremiah was downstairs in the living room in his bassinet crying so appellant moved him to the family room which was further away from the upstairs bedroom, next to the garage. Jeremiah usually slept in the living room and appellant put him back in the living room after moving him to the family room because appellant felt uneasy about leaving him in the family room. Jeremiah continued to cry but less loudly after appellant held him so appellant went upstairs to bed. He was last with the child between approximately 3:30 and 3:40 a.m. He was awakened at 7:00 a.m. by his father saying something was wrong with Jeremiah. When appellant went down to check the baby, he was dead.

Appellant raises four issues for our review: 1) whether the inference of guilt permitted under Commonwealth v. Paquette, 451 Pa. 250, 301 A.2d 837 (1973) is applicable; 2)

[ 379 Pa. Super. Page 90]

    whether evidence of the past injuries suffered by Jeremiah was admissible; 3) whether Article I, ยง 9 of the Pennsylvania Constitution ensures advocate review of children and youth agency files; and 4) whether evidence tending to show consciousness of guilt by someone other than appellant should have been admitted.

Appellant's first claim is the Commonwealth was required to prove, according to Paquette, supra, he had exclusive control over Jeremiah during the time the fatal injuries were inflicted; without proving beyond a reasonable doubt appellant had exclusive custody and control of the infant, Paquette cannot be relied on by the prosecution. Appellant asserts he did not have exclusive control over Jeremiah throughout the time period the fatal injury could have been inflicted. Several other people were ...


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