Appeal from the Judgment of Sentence June 28, 2012 In the Court of Common Pleas of Centre County Criminal Division at Nos. CP-14-CR-0001983-2011, CP-14-CR-0001910-2011
BEFORE: BOWES, WECHT, and PLATT, [*] JJ.
Brandon Lee Stimer appeals from the judgment of sentence of five to ten years imprisonment imposed after a jury convicted him of simple assault, endangering the welfare of a child, and reckless endangerment.We affirm.
While Appellant does not contest the sufficiency of the evidence supporting his convictions, we briefly summarize their factual basis. On the evening of August 14, 2009, Appellant's wife Crystal Stimer was changing the diaper of their four-week-old son in their Centre County home. The infant started to cry when she moved his left leg, and he continued to exhibit this behavior when his left leg was moved. On Monday, August 17, 2009, she took the baby to a pediatrician's appointment that she already arranged for one of her other two children. The baby's leg was swollen, and the pediatrician ordered x-rays, which revealed that the leg had three fractures. N.T.Trial, 3/10/12, at 101. Ms. Stimer then took her son to Geisinger Medical Center ("Geisinger") for treatment of the injuries.
Dr. Paul Bellino, a child abuse evaluator for the health system in Danville, Pennsylvania, was the attending physician at Geisinger. He was qualified as an expert witness in pediatrics and in child abuse. Id. at 91. Given the infant's history, Dr. Bellino opined that the injuries to the left leg were caused by "significant physical trauma." Id. at 98. Dr. Bellino concluded that the mechanism that caused two of the fractures was traumatic force while the third one was caused by either a direct blow or a twisting motion. Id. at 101-02. All the fractures would have caused significant pain to the infant. Dr. Bellino related that to break a baby's femur, an eighty-pound object would have to be dropped on the leg while it is "hanging over the edge of a table." Id. at 109.
Based on the observed injuries, Dr. Bellino ordered a skeletal survey, which is a series of about fourteen x-rays of a baby's entire body that reveals more detail of the bones. That survey uncovered more injuries to the victim. There was an injury to the right ankle "where the bottom portion of the bone had been ripped off of the main portion of the tibia in the ankles." Id. at 111. This trauma would have been caused by forceful pulling. There was a similar injury in the left arm radius bone, where it was connected to the thumb. Finally, there was a "buckle fracture in the left ulna, which is the outside of the arm." Id. at 111. A buckle fracture is caused when a bone is "bent but not broken and then allowed to go back into place." Id. at 11-12. The physician related that the month-old infant displayed five different bone fractures, none of which would have been caused by normal activities associated with his care.
The matter was reported to The Centre County Children and Youth Services ("CYS"), and that agency immediately removed the three children from the Stimers' home. After investigation, CYS concluded that Mr. Stimer caused the injuries and made an indicated finding of abuse as to him. Id. At 231. Since it also concluded that Mrs. Stimer was not the cause of the fractures, the three Stimer children were returned to her care.
Mrs. Stimer, who subsequently divorced Appellant, testified as follows. Her two older children were never alone with her newborn son. When she was released from the hospital after giving birth to the victim, she went to her parents' house for two weeks so that they could help her with the three children. She eventually returned to her home with Appellant. Mrs. Stimer, who denied harming her child, and Appellant were the only two people who had access to the infant between the time she returned home and when the infant was injured.
Appellant went to Geisinger with Mrs. Stimer, but he left after about thirty minutes, even though the boy was going to be at that facility for three days. When Mrs. Stimer learned about the extent of the injuries discovered by the skeletal survey, she telephoned Appellant. When asked how Appellant responded to the test results, Mrs. Stimer responded, "He was angry. He told me they were making it up." Id. at 178. During the child's in-hospital treatment, Appellant never visited and never called to check upon his well-being.
After the victim was released, he was remanded to the care of the relatives who were caring for the other two children while CYS investigated who abused the victim. Mrs. Stimer returned to the home that she shared with Appellant. She and Appellant were alone, and, while drinking alcohol, conversed about what happened. Mrs. Stimer related that, "[Appellant] had a gun at our house that he went and got and had it loaded and he put it up to his head and told me—and kept saying, I may have done this. He could have did this." Id. at 180.
Based on this evidence, on May 11, 2012, a jury acquitted Appellant of aggravated assault and convicted him of simple assault, recklessly endangering another person, and endangering the welfare of a child. Appellant was sentenced consecutively to the statutory maximum sentence of two and one-half to five years imprisonment on both the simple assault and the endangerment charges, each of which was graded as a first degree misdemeanor. This appeal followed denial of his post-sentence motion. Appellant raises these contentions:
[1.] Whether the sentencing court violated defendant's due process protections and otherwise abused its discretion by relying on factors not supported by the record in imposing sentences in excess of the aggravated range.
[2.] Whether the trial court erred in denying a defense request for a mistrial when a Commonwealth witness testified that defendant was incarcerated.
[3.] Whether the trial court erred in denying a defense request for a mistrial when the Commonwealth's attorney committed prosecutorial misconduct in its closing argument by telling the jury to send a message with its verdict.
Appellant's brief at 8.
Appellant would be entitled to the grant of a new trial if either of his latter two issues were meritorious, which would render the sentencing claim moot. Therefore, we address the second and third contentions before the first one. The second and third allegations concern the trial court's refusal to grant ...