Appeal from the PCRA Order entered March 7, 2013, Court of Common Pleas, Adams County, Criminal Division at No. CP-01-CR-0000509-2006
BEFORE: DONOHUE, SHOGAN and MUSMANNO, JJ.
Appellant, Kelly Rolan Wantz ("Wantz"), appeals from the order entered on March 7, 2013, denying his petition for relief pursuant to the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-46 ("PCRA"). For the reasons that follow, we affirm the PCRA court's order.
On January 27, 2005, Wantz was home alone with his one-month old twin boys in Littlestown Borough, Adams County, when he observed that one of his sons, J.W., was unresponsive and having trouble breathing. N.T., 3/25/2008, at 234-46. Wantz called 911 and J.W. was taken by ambulance to Gettysburg Hospital, with Wantz following in his vehicle. Id. at 243-46. Upon initial examination, it was medically determined that J.W. should be flown to Hershey Medical Center for specialized care. Id. at 249. Wantz did not follow J.W. to Hershey Medical Center, but instead drove himself home. Id. at 250.
At Hershey Medical Center, Dr. Mark Dias ("Dr. Dias"), a pediatric neurosurgeon, undertook the treatment of J.W. During the first two days, Dr. Dias treated J.W. for seizures. CT scans and MRIs revealed blood and swelling in the child's brain. J.W. could not swallow safely and required a feeding tube. Hospital staff reported J.W.'s injuries to the Adams County Children and Youth Services ("CYS"). On January 31, 2005, a CYS caseworker and a Littlestown Borough police officer interviewed Wantz. Wantz told them that he had just put the twins in their car seats to feed them when J.W. became quiet, at which time he rocked the car seat to prevent him from going to sleep. N.T., 3/25/2008, at 309-11. Wantz said that J.W.'s head then "flopped, " he felt cold, and he could not breathe properly – at which time Wantz immediately called 911. Id. at 310. During this interview, Wantz reportedly told the caseworker, "I'll say I did it. I don't care about jail. I'll say did it just to have the children back home with [their mother]. I'll just say I did it. I don't care. I'll just go to jail." N.T., 1/24/2008, at 58.
On February 2, 2005, CYS filed a petition seeking to have J.W. declared a dependent child. The juvenile court held adjudication hearings on April 8, May 26, and August 4, 2005. On April 8, 2005, Dr. Dias testified that the CT and MRI scans of J.W.'s head showed acute blood around both sides of his brain as well as the outside of the brain. Trial Court Opinion, 3/7/2013, at ¶ 10. The right side had a fluid collection that appeared to be chronic in nature. Id. The images also indicated a contusion to the right temporal lobe, reflective of a sudden deceleration of the brain while moving forward. Id. Dr. Dias found no evidence of a fracture or retinal hemorrhage. Id. In Dr. Dias' professional opinion, J.W. experienced a severe closed head injury due to an angular rotational acceleration of the head, typical of "shaken baby syndrome" or "shaken impact syndrome." Id. J.W.'s seizures were also strongly suggestive of angular acceleration rotation. Id. He could not determine if the injury was from a single or multiple incidents, but if from a single incident, Dr. Dias opined that it occurred on January 27, 2005. Id. In sum, Dr. Dias stated, within a reasonable degree of medical certainty, that J.W.'s injuries were consistent with a non-accidental trauma. Id.
On May 26, 2005, Wantz offered the testimony of Dr. Richard T. Callery ("Dr. Callery"). Dr. Callery reviewed J.W.'s prenatal and birth records as well as medical records related to his January 2005 hospitalization. N.T., 5/26/2005, at 16. Dr. Callery indicated that J.W.'s placenta had one artery (instead of two) and one vein. Id. at 16. According to Dr. Callery, this congenital abnormality of the placenta is associated with congenital defects and abnormality not apparent at birth, but which often appear within the first month. Id. at 17-18. As a result, Dr. Callery opined that J.W. had a high statistical chance of having an abnormal central nervous system. Id. at 19. In his testimony, Dr. Callery indicated that the radiological evaluation of the CT scan performed at Gettysburg Hospital on J.W. on January 27, 2005 described atrophy on the right brain hemisphere, which can be caused by congenital abnormality of the placenta associated with anoxia. Id. at 18-20. Dr. Callery further testified that the same radiological evaluation of the CT scan showed "an increased density along the inner calvarial margin" associated with "calcification" rather than hemorrhaging. Id. at 21. Such calcification, sometimes referred to as encephalomalacia, is associated with atrophy caused by lack of oxygenated blood going to the brain during gestation. Id. at 21-22. This condition, according to Dr. Callery, could explain J.W.'s seizures upon hospitalization. Id. at 22. In sum, Dr. Callery opined to a reasonable degree of medical certainty that J.W.'s injury was not caused by an angular rotational acceleration of the head. Id. at 30. In further support of his conclusion, Dr. Callery also testified that tests revealed no injury to J.W.'s retina or optic nerves, a common condition present in shaken baby injury cases because of the viscosity of the vitreous fluid in an infant's eyes. Id. at 22, 27, 32.
On August 4, 2005, Dr. Robert A. Zimmerman ("Dr. Zimmerman")testified that he had reviewed the CT scans of J.W.'s brain on January 27, January 28, and February 4, 2005, and an MRI taken on January 28, 2005. Trial Court Opinion, 3/7/2013, at ¶ 12. The January 27 CT scan showed an extensive acute subdural hemorrhage on the top and left side of the head as well as a small amount of blood on the right side. Id. According to Dr. Zimmerman, this bleeding pattern is consistent with non-accidental infantile head trauma. Id. The January 28 CT scan showed the same bleeding pattern as on the previous day's scan, and the MRI reflected an abnormality, mostly on the left side of the brain, indicating restricted motion of water in the brain tissue. Id. Dr. Zimmerman also observed cells that were injured and swollen. Id. On the February 4 CT scan, Dr. Zimmerman observed the abnormality seen in the earlier MRI, indicating evidence of a brain injury or cell death. Id. The cell damage had not been observable on the January 27 CT scan, but began to appear on the January 28 MRI. Id. Dr. Zimmerman opined that the appearance of bleeding on the left side of J.W.'s brain, and the lesser amount on the right side of the brain, was consistent with traumatic etiology of a recent injury (which he defined as occurring within 24 hours of the first CT scan). Id. Dr. Zimmerman observed no evidence of brain atrophy or prior low blood atoxic ischernic injury, as suggested by Dr. Callery. Id.
On December 5, 2005, the juvenile court adjudicated J.W. a dependent child.
On December 21, 2005, Wantz appeared at the Littlestown Police Department and left a handwritten note purportedly signed by him, which stated as follows:
I, Kelly R. Wantz, confess that on 1-27-05 I did bodily harm to [J.W.] l was alone ... What happened was a[n] accident. [J.W.] kept crying I shook him & threw him down in his crib ... Mother never knew about this. ... I can't live with what I done [sic].
N.T., 1/25/2008, at 184; Exhibit 13.
On April 3, 2006, the Commonwealth charged Wantz with several crimes, including aggravated assault, 18 Pa.C.S.A. § 2702(a)(1), and endangering the welfare of children, 18 Pa.C.S.A. § 4304(a). On June 11, 2007, Wantz entered a plea of nolo contendere to the aggravated assault charge. Sentencing was deferred. On September 13, 2007, Wantz requested to withdraw his guilty plea, which request the trial court granted on September 17, 2007. On November 26, 2007, the trial court granted Wantz's request that trial be continued to the week of January 22, 2008 so that Dr. Callery could be present to testify.
A jury trial began on January 24, 2008. Dr. Dias and Dr. Zimmerman testified, but on the third day of trial and before the Commonwealth had finished presenting its evidence, the trial court had to declare a mistrial based upon Wantz's intoxication. Dr. Callery was in attendance in the courtroom.
The second jury trial commenced on March 24, 2008. Dr. Dias testified consistently with his prior testimony. N.T., 3/25/2008, at 122-67. He disagreed with Dr. Callery's prior testimony that placental abnormality could be a cause of the type of trauma suffered by J.W. Id. at 168-69. Dr. Dias estimated the timing of the injury as January 27, 2005 during the time when J.W. was in the care and custody of Wantz between 5:00 p.m. and 6:37 p.m. when he called 911. Id. at 170. Dr. Dias had two bases for this opinion: first, a research paper showing that in the "overwhelming majority of cases, " the perpetrator is "the person who was with the child at the time the 911 call is made"; and second, another research paper concluding that the onset of abnormal breathing is a "marker of when the injuries occurred." Id. at 170-71.
The Commonwealth also introduced evidence of Wantz's statement to a CYS caseworker on January 31 ("I'll say I did it...") and the handwritten note Wantz had left at the police station on December 21, 2005. Having been advised that Dr. Callery would not be called to testify, the Commonwealth did not present any other medical testimony. In Dr. Callery's absence, Wantz (pro se) asked the trial court for a continuance to obtain a medical expert to testify about issues regarding congenital abnormalities, but the trial court refused, noting that "we are three years from the event and you're asking me to delay this trial for you to go on a fishing expedition when this is the third time this matter was scheduled for trial." Id. at 206-08. Wantz then testified on his own behalf, emphatically denying that he had shaken or otherwise harmed J.W. on January 27, 2005. Id. at 257. He also testified that he did not remember dropping off the note at the police station on December 21, 2005, but that he "probably wrote" it. Id. at 264-65.
The jury returned guilty verdicts on the aggravated assault and endangering the welfare of children charges. On June 30, 2008, the trial court sentenced Wantz on the aggravated assault conviction to a term of incarceration of six to fifteen years, to be followed by five years of probation. The trial court imposed no additional sentence on the conviction for endangering the welfare of children. On September 24, 2008, the trial court denied Wantz's post-sentence motions, and on January 19, 2011, this Court affirmed the judgment of sentence.
On November 7, 2011, Wantz, through counsel, filed the instant PCRA petition, in which he raised several claims of ineffective assistance of counsel, including the failure of trial counsel to call Dr. Callery at the second jury trial. The trial court conducted an evidentiary hearing on March 9, 2012, at which trial counsel, Dr. Callery, Wantz, and his father, Glenn Wantz, testified. Trial counsel testified that he decided not to call Dr. Callery as a witness at trial based upon a meeting with him on the first day of the first trial (which ended in a mistrial).
Q. Dr. Callery was present the first day of trial?
A. That's correct. May I explain? Yes he was. I had already talked to Dr. Callery and I think the Wantz family had paid him a fee. I talked to Dr. Callery, arranged for him to come down. He was reluctant to come but he did come the first day of that trial and we had a conversation on the fourth floor outside of Courtroom #1, yes.
Q. Was his reluctancy to come associated with his advice to you that another expert [a neurosurgeon rather than a pathologist] would be appropriate?
A. No. If I may. He told – when he got there and I asked him about testifying, and I think the conversation was overheard by both [Wantz] and his father, Dr. Callery had been paid and this is exactly – I remember this outside of Courtroom #4. He said: 'Mr. Chester, I reviewed my testimony from the CYS and my notes and I believe my testimony in that was incorrect, was in error. I do not wish to testify in this case because I cannot do [Wantz] any good. I do not want to affect my professional reputation' and that's exactly what he told me. Both gentlemen heard the conversation. Maybe not the whole conversation. That's exactly what he told me. If he got on the stand he said he would testify to the fact that he was in error in that case in some of his conclusions in the CYS trial and that in my opinion was not going to help [Wantz].
N.T., 3/9/2012, at 90-91. Accordingly, trial counsel decided not to call Dr. Callery to testify at the second jury trial, based in part on his belief that Wantz could achieve a successful outcome without expert testimony:
Q. At that point in time[, ] what Dr. Callery told you at that point in time, did your opinion change as to the necessity of expert testimony in [Wantz'] defense?
A. Not really. My opinion on this case was that I did not think they had enough to convict this man of this case. After talking to him, he completely denied it. Reviewing the police reports and as I say this child had been handled by so many people that night and no ...