Appeal from the Judgment of Sentence of October 14, 2010 in the Court of Common Pleas of Delaware County Criminal Division at No(s): CP-23-CR-0002523-2009
BEFORE: STEVENS, P.J., FORD ELLIOTT, P.J.E., BOWES, GANTMAN, PANELLA, SHOGAN, LAZARUS, MUNDY, AND OTT, JJ.
Appellant, Stephen Fischere, appeals from the October 14, 2010 aggregate judgment of sentence of 10 to 20 years' imprisonment imposed after he was found guilty of aggravated assault and endangering the welfare of a child. After careful review, we affirm.
The trial court summarized the relevant facts of this case as follows.
On the evening of April 28, 2009, the Aldan Borough Police Department responded to a 911 call at 110 West Maryland Avenue, the residence of Barbara Grogan and [Appellant]. The call was received at approximately 6:40 P.M., and Sergeant James Fink, who was on duty that evening and already in the area, arrived on location within minutes of the call. Upon arrival, [Appellant] was observed outside of the residence.  Appellant appeared upset and directed Sergeant Fink into the downstairs apartment, which belonged to his neighbor, Amber Graff-Eder, and where a small child, (herein after referred to as Z.G.), was observed lying on the living room floor. Z.G. appeared to be unresponsive, but upon closer observation was observed to be breathing shallowly. Sergeant Fink then briefly left the residence to obtain his CPR mask, which was located outside in his patrol vehicle. Sadly, by the time he returned, Z.G. was no longer breathing.
In an effort to resuscitate the child, Sergeant Fink placed his CPR mask on Z.G. and administered two breaths. By this time, Eric Davis, an EMT with Fitzgerald Mercy Hospital, had arrived on the scene and instructed Sergeant Fink to take Z.G. to the ambulance which he had parked outside of the residence. Sergeant Fink did as instructed, and Z.G. was transported to Fitzgerald Mercy Hospital for further care.
At the hospital, Maureen McCullian, a nursing supervisor on duty that evening, was told by Sergeant Fink and Eric Davis that the child had fallen down some steps. Ms. McCullian found this explanation to be at odds with the severity of the injuries and condition of the child upon his arrival to the hospital. Dr. Michelle Azer, who was also on duty at the hospital that evening, was called to the emergency room upon Z.G.'s arrival. Dr. Azer arrived to the emergency room at approximately 7:00 P.M., and, despite the efforts of herself and her medical staff, was unable to get the child's heart started.
At Appellant's [jury] trial [on July 19, 2010], Dr. Azer described the emergency room as chaotic, and relayed to the jury that she too was told that the child had fallen down five to six stairs. Dr. Azer explained that she had never before seen cardiac arrest from a fall down several stairs. Both Ms. McCullian and Dr. Azer observed bruises on the child's body.
On the day of the incident, Barbara Grogan, Z.G.'s mother, was working at a local diner. Her friend Tamera had driven her to work and had then taken Barbara's two children, Z.G. and X.G., back to Tamera's house. Upon the conclusion of her shift, Barbara was to be picked up by her boyfriend,  Appellant, after he himself finished work. In addition to giving Barbara a ride to work, Tamera had also agreed to watch Barbara's children until  Appellant finished work and was able to pick them up. Appellant did retrieve the children from Tamera's home around 5:15 that evening and then returned to the apartment he and Barbara shared at 110 West Maryland Avenue, mentioned above.
That evening Barbara received a call to her cell phone around 6:00 P.M., but could not answer the call while she was working. Later a call was made to her workplace, and Barbara was informed that her oldest son, Z.G., had been rushed to the hospital. Barbara was given a ride to the hospital and waited in an interview room while Z.G. was treated by the medical staff at the hospital. Shortly thereafter Barbara was informed by the doctor that, despite the doctors' efforts, her son Z.G. did not survive.
Following this incident, detectives William Gordon and Thomas Worrilow Jr., of the Delaware County Criminal Investigation Division, commenced an investigation into the cause of Z.G.'s death. Appellant, who was the last person to see Z.G. alive, recounted the events leading up to his death and explained that prior to the incident[, ] Z.G. had been eating a donut. He stated that he had been gathering the children's belongings before heading to his brother's home, where he intended to stay until Barbara's shift was over. Appellant explained that he had been preoccupied and that tragically, Z.G. had tripped over a seatbelt that had been hung over a railing and had fallen down the stairs. He explained that when he ran to Z.G.'s aid he was not breathing. Appellant explained that he performed CPR and then ran to his neighbor's apartment and asked her to call 911.
Following Z.G.'s death, an autopsy was performed by Delaware County's Chief Medical Examiner, Dr. Frederick Hellman. Dr. Hellman concluded that the manner of death was homicide caused by multiple blunt force trauma to various parts of his body and high neck subluxation. Dr. Hellman, in his professional opinion, did not believe that Z.G.'s injuries were consistent with the story provided by Appellant. Similarly, Dr. Lucy Rourke-Adams, a pediatric neuropathologist at Children's Hospital of Philadelphia, who examined several of the child's organs following his death, also found it unlikely that Z.G.'s injuries could have been caused by a fall down the steps.
In the case sub judice, the Commonwealth argued that there were preexisting bruises on Z.G. before the incident on April 28, 2009. The Commonwealth contended that these bruises were not the result of any sort of bruising disorder, but had been inflicted upon the child by the Appellant. The Commonwealth maintained that, on the night of the incident, Appellant had beaten the child to death, and the Commonwealth suggested that the bruising on the child was illustrative of this abuse. In order to establish this theory, the Commonwealth called several medical professionals at trial, some of whom had seen the child arrive at the emergency room on April 28, 2009[, ] and some of whom had examined the child in the days leading up to and following his death. These witnesses included Dr. Richard Kaplan, Z.G.'s pediatrician; Dr. Michelle Azer, who was on duty in the emergency room on April 28, 2009 when Z.G. was brought in and unresponsive; Dr. Lucy Rourke-Adams, a pediatric neuropathologist at Children's Hospital of Philadelphia who examined Z.G. following his death, and Dr. Fredrick Hellman, the Chief Medical Examiner in Delaware County.
Additionally, the Commonwealth introduced pre-autopsy photographs of Z.G. to illustrate the condition of his body following the incident. Several of these photographs were shown to Barbara and Tamera during direct examination. Additional photographs were also shown to several of the medical professionals mentioned above, including Dr. Hellman. Several photographs were also shown to the jury during the trial and again during deliberations.
As set forth above, Tamera Campanese, Barbara's best friend, had spent the day caring for Z.G. and his brother on April 28, 2009. At trial Tamera testified that Z.G. seemed happy and had been playing outside in a small pool with her daughter that day. At trial Tamera was shown the pre-autopsy photographs of Z.G. Tamera testified that she did not recall seeing any unusual marks on Z.G.'s body that day.
Barbara was also shown several pre-autopsy photographs at trial. When shown these photographs, Barbara testified that she had not seen the bruising illustrated in the photographs on Z.G. before. On cross-examination, Barbara testified that she had seen some bruising around the child's penis about a week prior to the incident, but explained that it did not look anything like the bruising in the photographs. Barbara explained that she had noticed excessive bruising on Z.G. and, although she claimed she had directly observed the resultant bruises from various bumps and blunders, she was "concerned when they just started popping up like all over the place."
Dr. Richard Kaplan, the child's pediatrician, reported that, because of Barbara's concern over these bruises, tests had been performed on Z.G. several days before the day of his death to determine whether the child had a bruising disorder. The results of this test came back normal. Additionally, after tests were conducted on the child post mortem, the medical examiner, Dr. Hellman concluded that several of the bruises observed on Z.G.'s body had been inflicted anywhere from one hour to four hours before the child's death.
Dr. Hellman explained his findings in great detail at trial, and recounted that in addition to the bruises observed on the child's body, Z.G. had injuries to several of his organs, including his liver and spleen. Z.G. also had a subluxation, or "a loosening to tearing of the ligaments between the vertebrae and the spine", in his upper neck bone between the base of his skull and his first cervical vertebrae. Dr. Hellman explained that this type of injury occurs as a result of "considerable force." He explained that there was no bleeding observed at this site, but stated that he did find blood in Z.G.'s peritorial cavity, which he found to be unusual based upon the circumstances that were alleged to have surrounded the child's death.
Trial Court Opinion, 7/20/11, at 1-6 (citations and footnotes omitted).
Additionally, during the Commonwealth's case in-chief, defense counsel's cross-examination of Detective William Gordon raised "the inference that [Detective Gordon] did not ask enough or did not ask the proper questions of [Appellant] during the interview which took place at the hospital[.]" N.T., 7/22/10, at 125.
Detective Gordon and Detective Thomas Worrilow took Appellant's initial statement at the hospital on April 28, 2009. Later that night, Detective Gordon spoke to Dr. Azer who informed the detectives that Appellant's statement was inconsistent with the injuries on Z.G.'s body. Id. at 128. Detective Gordon then returned to Appellant for another interview, at which time, Appellant declined to answer any more questions without first speaking to an attorney. Id.
After defense counsel finished cross-examining Detective Gordon, the Commonwealth asked the trial court for a ruling that if Appellant were to testify, the Commonwealth would be permitted to cross-examine him using his pre-arrest silence with regard to Detective Gordon's request for a second interview. The Commonwealth argued it would be permitted to do so as a fair response to the inferences raised by defense counsel during Detective Gordon's cross-examination. The trial court agreed.
While conducting a colloquy with Appellant on his constitutional right to testify, the trial court instructed Appellant that, if he did testify, the jury would be instructed that they could consider evidence of his pre-arrest silence only "to help [it] judge the credibility and weight of the testimony by [Appellant] at trial." N.T., 7/26/10, at 18. The trial judge would also instruct the jury that it "must not be considered … as nay [sic] evidence or indication of Appellant's guilt." Id. at 17. Appellant acknowledged that he understood his rights. Id. at 20. After which, he elected not to testify in his own defense. Id. at 20.
At the conclusion of the trial, the jury found Appellant guilty of aggravated assault, and endangering the welfare of a minor. On October 14, 2010, the trial court imposed an aggregate judgment of sentence of 10 to 20 years' imprisonment. Appellant did not file any post sentence ...