Appeal from the Order of the Superior Court, No. 1613 Philadelphia 1985, dated April 1, 1986, Affirming the Judgment of Sentence of the Court of Common Pleas of Bucks County, No. 1932 of 1983. 356 Pa. Super. 586; 512 A.2d 50 (1986).
A. Charles Peruto, Burton A. Rose, Philadelphia, for appellant.
Stephen B. Harris, Chief of Appeals, Doylestown, David W. Zellis, Asst. Dist. Atty., for appellee.
Nix, C.j., and Larsen, Flaherty, McDermott, Zappala and Papadakos, JJ. McDermott, J., files a concurring opinion which Zappala, J., joins. Papadakos, J., files a dissenting opinion. Larsen, J., did not participate in the consideration or decision of this matter.
OPINION ANNOUNCING THE JUDGMENT OF THE COURT
The issues in this case are whether evidence of alleged prior acts of child abuse may be introduced in a prosecution for murder in which death of the victim was caused by alleged child abuse; and if such evidence may be admitted, the extent to which it may be challenged on cross examination.
At approximately 11:05 p.m. on March 23, 1983 Appellant Donahue and his girlfriend Claire Price took Claire's son Eddie to the emergency room at Holy Redeemer Hospital at Meadowbrook. The child, who was twenty-one months old, was dead on arrival at the hospital. Because of extensive bruises on the child's body, the examining physician suspected child abuse and reported the case to the police.
Police questioned both Donahue and Price that night, and two days later, the child's mother gave police a formal statement. Based on that statement, police arrested Donahue and charged him with the child's murder.
The trial began on August 15, 1983 in the Criminal Division of the Court of Common Pleas of Bucks County. On August 24, 1983, a jury found Donahue guilty of murder of the third degree, and on June 5, 1985 he was sentenced to seven and a half to fifteen years of imprisonment.
Evidence presented at trial was that Donahue and Price had been living together for approximately seven weeks. Each had custody of two children from former marriages. The group of six lived alternatively in Donahue's trailer and Price's apartment, located nearby. Price worked nights at a convalescent home, and Donahue, who was out of work because of a disability, stayed home with the four children. Among Donahue's duties was to assist in the toilet training of the smallest child, Eddie.
On March 23, Price returned home from work around 7:00 a.m. She saw her son Eddie, who at that time was apparently free of injury. Donahue took Eddie with him that
morning to do work cleaning out a garage, and when the two returned around noon, Eddie still appeared to be uninjured. Thereafter, Price took a nap and was awakened around 2:00 p.m. by a cry. She saw Donahue standing by the door of the trailer. He told her that the wind had blown the trailer storm door open and had knocked Eddie off the steps, but that Eddie was all right. Eddie went back outside to play. Donahue's son Billy had also been struck by the storm door earlier that day and sustained a cut lip.
According to Donahue, although Eddie appeared to be all right after he fell off the steps, around 3:30 p.m. one of the other children came in and told Donahue that Eddie had vomited outside. Donahue testified that he found Eddie sitting outside with vomit on his clothes and he took Eddie inside to give him a bath and change his clothes. Donahue woke Price around 4:00 p.m. so that the family could go to Price's mother's house for dinner. He also told her about Eddie's vomiting and suggested that they take Eddie to the hospital. Price declined to do that, thinking that Eddie had merely come down with the flu. Price noticed vomit on the ground as she left the trailer.
When the group arrived at Price's mother's house, Eddie stayed on the couch because he had been sick. While there, he began to "spit up" several more times. According to Donahue, Price asked her mother whether she should take the child "someplace," but the grandmother suggested that the child was simply ill and that he looked pale because he had been vomiting. N.T. Aug. 19, 1983, 53. Before the group left the grandmother's house, Donahue took Eddie to the bathroom.
When the group arrived home, the children were put to bed and the adults watched t.v. Price fell asleep in a chair and testified that sometime later she woke up and saw Donahue sitting in the kitchen holding a kitchen knife to his stomach. Price testified that Donahue said:
"Nobody's ever going to be able to forgive me for what I have done. I done something terrible . . . . You're never going to be able to trust me for what I have done."
He said repeatedly, repeatedly that he had done something terrible and nobody was ever going to be able to forgive him for it. He said that our relationship was over. He said he would rather die than go to jail. He said that he was afraid he had killed somebody, was very concerned about Jennifer and Billy [Donahue's own children].
N.T. Aug. 15, 1983, 61-62.
Because Price did not know what was wrong with Donahue, she called Donahue's mother, who came over. Donahue asked Price to wait in the bathroom while he told his mother what the matter was. When Price went into the bathroom, Donahue told his mother that Eddie was dead. Mrs. Donahue checked the child, who was not breathing, unsuccessfully attempted artificial respiration, and then told Price that her son was dead. Price came out of the bathroom and sat at the table, apparently in a daze. She testified:
Donahue denied that he told Price he punched the child and he denied that he held a knife to his stomach. His testimony was that after he had watched t.v. for a while, he went into the children's rooms to see that they were covered. It was then that he found Eddie dead. He admits that when Price awoke, he was distraught and blamed himself for Eddie's death because he had not insisted that the child be taken to the hospital.
Two of the three issues raised by appellant in this case concern evidence of a prior act of child abuse he is alleged to have committed in 1980, three years prior to the incident in this case, when Donahue was living with a former wife.
In 1980, Donahue had been laid off from his regular employment and his wife had begun working. Donahue cared for his two children during the day, and one of his children, Billy,*fn1 who was just over twelve months old, was being toilet trained at the time. N.T. Aug. 17, 1983, 13. Normally, Donahue would bathe the children and tell his wife to relax after she came home from work, but on March 7, 1980, Donahue's former wife bathed Billy for the first time in several days. While bathing the child, she saw bruises on the child's face, on his arms, down his spinal column, in the crack of his bottom, on his legs, and on the bottom of his foot. N.T. Aug. 17, 1983, 18. As a result, she took the child to the emergency room, where he was admitted to the hospital and stayed for four days. The two doctors who examined Billy diagnosed "possible battered child syndrome." Id., 63. Immediately prior to this incident, the child was in Donahue's care during the day.
The emergency room doctor testified as follows concerning the injuries which the child had when he arrived at the hospital:
My examination at that time revealed multiple bruises and contusions about the patient's body, about the patient's face, choke mark on the neck, multiple bruises on the mid to lower portion of the spine, as well as a bruise on the buttock.
N.T. Aug. 17, 1983, 43. The doctor further explained his finding of child abuse as follows:
My opinion was based on the fact that the child presented [sic] to the emergency room with no previous history of any disease, no previous history of any bleeding disorder. The history from the mother was that the patient had bruises all over the patient's body for an unknown reason. Whenever we see a patient like that which appears otherwise with normal ...