February 7, 2014
COMMONWEALTH OF PENNSYLVANIA, Appellee
JAMES EDWARD BUCK, SR., Appellant
Appeal from the Judgment of Sentence September 20, 2012, Court of Common Pleas, Northumberland County, Criminal Division at No. CP-49-CR-0000717-2011
BEFORE: DONOHUE, OTT and PLATT [*] , JJ.
James Edward Buck, Sr. ("Buck") appeals from the September 20, 2012 judgment of sentence entered by the Court of Common Pleas, Northumberland County, following his conviction of endangering the welfare of a child ("EWOC") (18 Pa.C.S.A. § 4303(a)(1)), a felony of the third degree. After careful review, we affirm.
In December of 2010, a 22-month old child, [(the 'Child')], was presented at a medical clinic by his mother with a swollen elbow. The indication was that the child had fallen down three to four steps. Upon further examination, the treating professionals noticed a litany of bruises decorating the child's entire body. After submitting to x-rays, the professionals noted a number of old fractures, none of which had been treated. The child was immediately hospitalized on suspicion of child abuse.
At the hospital the child was examined by Doctor Paul Bellino, who specializes in trauma treatment. The Doctor took several photographs of the minor child's injuries, all of which were presented at trial. The child had bruises over his chest, hips, face, armpits, forehead, upper and lower legs, lower back, and upper back. Upon further examination, the Doctor located bruising on the child's penis. He testified the bruising was consistent with 'the skin [being].... rubbed open...' See N.T.[, 5/11/12, at] 33. The Doctor testified that the penis wounds are exceedingly odd because one would expect that the child would be wearing a diaper, which would protect the penis from injury. The minor child also had a ruptured superior labial frenulum. The Doctor testified this is the 'tiny piece of tissue that if you stick your tongue up above your middle teeth on the top portion you'll feel that little piece of tissue connecting your upper lip to the top of your gum.' See [id. at] 34. The Doctor testified that these injuries are not consistent with a fall down several steps. His testimony was that 'one would not expect to see bruises of this extensive nature, nor would one expect to see bruises on both sides of the body simply from a fall down three or four steps.' See [id. at] 36.
The minor child had multiple fractures throughout his skeletal structure. He had fractures of his right humerus, ribs, left tibia, right ulna, right radius. Based on the fractures in the arms, the Doctor testified the child would not be using his arm while the fractures existed. The Doctor testified similarly regarding the leg fractures. The Doctor also testified that all the fractures would have been painful injuries. In an attempt to rule out a disease which would cause the child to bruise easily or bone fragility, the Doctor authorized a series of tests to determine if any of these afflictions currently beset the minor. All test results returned normal. As a result the Doctor felt that this was a case of prolonged exposure to child abuse.
Trial Court Opinion, 7/22/13, at 1-2.
On May 11, 2012, a jury convicted Buck of the above-referenced crime. On August 24, 2011, Buck filed a sentencing memorandum asserting that it would be improper for the trial court to sentence him for his conviction of EWOC graded as a third degree felony. Sentencing Memorandum, 8/24/12, at 1-2. Buck argued that although the Commonwealth indicated in the information that the EWOC charge was a third degree felony, it did not allege a "course of conduct." Id. Thus, Buck claimed it would be improper for the trial court to sentence him on the conviction graded as a third degree felony and instead should sentence him on the conviction graded as a first degree misdemeanor. Id. On September 20, 2012, the trial court denied Buck's request and sentenced him to serve 18 to 36 months of incarceration for his conviction of EWOC graded as a third degree felony.
Buck filed a pro se notice of appeal to this Court, which was docketed and sent to counsel and the Commonwealth on September 24, 2012. On September 29, 2012, Buck's counsel filed two motions, a motion for leave to withdraw and to appoint new counsel and a post-sentence motion. Counsel requested permission to withdraw because Buck had expressed his intent to discharge counsel and request the appointment of new counsel and because it appeared that Buck planned to challenge counsel's effectiveness at trial. Motion to Withdraw, 9/27/12, at ¶ 3, 5. In the post-sentence motion, counsel sought a new trial on the basis that the verdict was against the weight of the evidence, asserting that "among other evidence, the testimony of James Buck, Jr., was that [Buck] persuaded Jennifer Kriner to seek medical attention for her injured child, thereby fulfilling any duty of care he would have had as a childcare provider in the parent's absence." Post-sentence Motion, 9/27/12, at ¶ 3.
The record reflects that on November 5, 2012, following a hearing, the trial court granted counsel's request to withdraw, denied Buck's request for the appointment of new counsel, and denied Buck's motion for a new trial. Trial Court Order, 11/5/12, at ¶ 1-3. In its order, the trial court stated that it conducted a Grazier hearing and determined that Buck waived his right to counsel. Id. at ¶ 1. While it granted counsel's request to withdraw, the trial court simultaneously ordered counsel to act as Buck's stand-by counsel. Id. at ¶ 2.
On April 13, 2013, the trial court amended its November 5, 2012 order as follows:
2. The [c]ourt has reviewed the entirety of [Buck's] [m]otion and believes that [he] was not applying for leave to proceed pro se but was applying for new counsel on direct appeal. A right to counsel on direct appeal is recognized by the Pennsylvania Constitution and relevant cases[.]
3. In light of the [c]ourt's new-found understanding, and notwithstanding the motions filed by [Buck], the [c]ourt hereby amends the November 5th order to read as follows:
'Motion to Appoint Counsel = GRANTED. The [c]ourt removes MICHAEL SEWARD, ESQ., as counsel and hereby appoints RICHARD FEUDALE, ESQ., to represent the interests of JAMES BUCK, the Defendant. As appointed counsel, RICHARD FEUDALE, ESQ., shall have access to all criminal documents he/she deems necessary to effectuate the appeal process.'
Amended Trial Court Order, 4/10/13, at ¶ 2-3 (emphasis original) (footnote omitted).
Thereafter, Buck filed a counseled Pa.R.A.P. 1925(b) statement. The trial court filed its opinion pursuant to Pa.R.A.P. 1925(a) on July 22, 2013.
I. Is [Buck] entitled to a new trial because Trial Counsel erred and was ineffective when he did not object to and request either [m]istrial or curative instruction upon the Prosecution's solicitation of the statement by Children and Youth Caseworker Eric Robert McAndrew in the Prosecution's direct testimony at trial that [Buck] 'was not very willing to talk with me. . . ' (N.T.[, 5/11/12, at] 55/24 [sic]), which implicates [Buck]'s privilege under the 5th Amendment of the U.S. Constitution or Article 1 Section 9 of the PA Constitution to not have his silence used against him and, further, that the jury be permitted to draw no adverse inference from his silence?
II. Is [Buck] entitled to a new trial because the verdict in this case is against the sufficiency of the evidence because there is not credible testimony or other evidence of a degree necessary to meet the burden of proof tying [Buck] to the injuries to this child or to a course of conduct which caused injury to or endangered the child or establishing how a breach of any duty of care that Mr. Buck may have had or may be deemed to have was criminally violated?
III. Is [Buck] entitled to a new trial because the verdict in this case is against the weight of the evidence because there is not credible testimony or other evidence of such weight as to satisfy the burden of proof tying [Buck] to the injuries to this child or establishing how the prosecution was able to emerge from the self-described 'fog' (N.T.[, 5/11/12, at] 97/9 [sic]) of evidence and statements in which it found itself to establish that Mr. Buck committed the charged conduct beyond a reasonable doubt?
IV. Did the trial court err in not granting counsel's request to grade the charge at sentencing as a misdemeanor because the Commonwealth did not plead and prove a course of conduct?
Appellant's Brief at 3.
Buck's first issue challenges trial counsel effectiveness for failing to object to testimony elicited by the Commonwealth from a CYS caseworker. Appellant's Brief at 11; Pa.R.A.P. 1925(b) Statement, 5/17/13, at ¶ 1. We do not reach the merits of this claim.
In Commonwealth v. Holmes, Pa., 79 A.3d 562 (2013), our Supreme Court clearly held that claims of ineffective assistance of counsel must await review under the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. §§ 9541-9546, except under two circumstances: (1) in the "extraordinary case where the trial court, in the exercise of its discretion, determines that a claim (or claims) of ineffectiveness is both meritorious and apparent from the record so that immediate consideration and relief is warranted" and (2) where review of ineffective assistance of counsel claims is sought following an express waiver of PCRA review. Id. at, 79 A.3d at 576-78. Neither exception is present in the instant case. Accordingly, Buck's ineffective assistance claim cannot be raised on direct appeal and must be deferred until PCRA review.
In his second issue, Buck challenges the sufficiency of the evidence for his conviction of EWOC. Appellant's Brief at 14. Our standard for reviewing a challenge to the sufficiency of the evidence is well established:
'[O]ur standard of review of sufficiency claims requires that we evaluate the record in the light most favorable to the [Commonwealth as] verdict winner giving the prosecution the benefit of all reasonable inferences to be drawn from the evidence.' Commonwealth v. Stays, 40 A.3d 160, 167 (Pa.Super. 2012) (citations and quotations omitted). Evidence will be deemed sufficient to support the verdict when it establishes each material element of the crime charged was committed by the accused beyond a reasonable doubt. Id. The Commonwealth need not establish guilt to a mathematical certainty. Id. Finally, this Court 'may not substitute our judgment for that of the fact finder; thus, so long as the evidence adduced, accepted in the light most favorable to the Commonwealth, demonstrates the respective elements of a defendant's crimes beyond a reasonable doubt, the appellant's convictions will be upheld.' Id.
Commonwealth v. Collins, 70 A.3d 1245, 1249 (Pa.Super. 2013), appeal denied, Pa., A.3d (2013).
Section 4304(a)(1) of the Pennsylvania Crimes Code sets forth the crime of EWOC as follows: "A parent, guardian or other person supervising the welfare of a child under 18 years of age, or a person that employs or supervises such a person, commits an offense if he knowingly endangers the welfare of the child by violating a duty of care, protection or support." 18 Pa.C.S.A. § 4304(a)(1). Section 4304(a)(3) further provides that "the term 'person supervising the welfare of a child' means a person other than a parent or guardian that provides care, education, training or control of a child." 18 Pa.C.S.A. § 4304(a)(3). Accordingly, this Court has held that to obtain a conviction for EWOC, the Commonwealth must prove:
1) [T]he accused [was] aware of his/her duty to protect the child;
2)[T]he accused [was] aware that the child [was] in circumstances that could threaten the child's physical or psychological welfare; and
3)[T]he accused has either failed to act or has taken action so lame or meager that such actions cannot reasonably be expected to protect the child's welfare.
Commonwealth v. Bryant, 57 A.3d 191, 197 (Pa.Super. 2012) (quoting Commonwealth v. Pahel, 689 A.2d 963, 964 (Pa.Super. 1997)). Furthermore, where there is a course of conduct of EWOC, it is a felony of the third degree. 18 Pa.C.S.A. § 4304(b).
Buck contends that the evidence is insufficient to establish that (1) he was aware of his duty to protect Child, (2) he was aware that Child was in circumstances that could threaten Child's welfare and (3) there was a course of conduct endangering Child. Appellant's Brief at 14-18. Buck suggests that Child's "injuries appear to be spread out over some time and may not have been so obvious to a live-in-boyfriend part-time caretaker like  Buck, especially because the testimony suggests that this was a stoic child." Id. at 15. We disagree.
At trial, Paul Bellino, M.D. ("Dr. Bellino"), testified regarding his examination of Child on December 16, 2010 at the Children's Hospital. Dr. Bellino initially noted that Child's right arm was in a cast and that Child's body was covered in bruises. N.T., 5/11/12, at 27. According to Dr. Bellino's description, Child's bruising was extensive. Child had "constellations" or groups of bruises on both sides of his body from his face to his armpit, chest, back, hips, thighs, knees and shins. Id. at 27-33. Child also had abrasions on the right side of his forehead nose and his left eyebrow. Id. at 32-33. Upon further examination, Dr. Bellino discovered that Child suffered an oral injury, i.e., the superior labial frenulum (the small piece of tissue that connects the upper lip to the gum) had recently been ruptured. Id. at 34.
In addition to the bruising, abrasions and oral injury, Dr. Bellino discussed the injury to Child's penis. Dr. Bellino described the injury as a lesion and stated "[t]he very tip of the penis and the glands of the penis [were] basically abraded. So it was the - - the skin was rubbed open, if you will." Id. at 33. Furthermore, there were two large scabs in semicircle areas around both sides of Child's penis. Id. at 33-34. Dr. Bellino concluded that the above-described injuries were not consistent with a fall down three or four steps. Id. at 35-36 ("[O]ne would not expect to see bruises of this extensive nature, nor would one expect to see bruises on both side[s] of the body simply from a fall down three or four steps.").
Regarding the age of Child's injuries, Dr. Bellino pointed out that some of the bruises were yellow, brown and fading, while the abrasions on the face were more recent and the oral injury appeared very recent. Id. at 36. Generally, Dr. Bellino concluded that the lesions were probably days old while other injuries were likely only a day old. Id. at 36-37.
After taking x-rays of Child, Dr. Bellino found evidence of multiple fractures in Child's body. Id. at 37-38. Child had two fractures in the upper and lower part of his right humerous and one fracture in his rib, left tibia, right ulna and right radius. Id. at 37. Dr. Bellino determined that the leg fracture occurred several weeks to a couple of months ago, the rib fracture occurred two to three weeks ago, the humerous fractures occurred three weeks to a couple of months ago and the fractures to the ulna and radius occurred five to seven days ago. Id. at 38-40. From his review of Child's medical chart, Dr. Bellino determined that Child missed his 18 month checkup and had not been seen for 10 months. Id. at 44. Overall, Dr. Bellino arrived at the conclusion that Child had been subjected to "repeated episodes of physical abuse." Id. at 46.
A Child Protective Services Worker for Northumberland County Children and Youth Services ("CYS"), Amy Orner ("Orner"), interviewed Buck regarding the report of Child's abuse. Id. at 77, 80-81. Buck told Orner that he saw the marks on Child's rib cage, Child's swollen arm and injuries to Child's face, head and penis. Id. at 84. The penis injury occurred in September 2010, when Buck awoke to screams and saw Child's sibling pulling him across the floor by his scrotum. Id. at 84-85. Buck also conveyed to Orner that Child would fall down the stairs a lot and that Child's mother, Jennifer Kriner ("Kriner"), was not a good mother and lacked a mothering instinct. Id. at 86-87. Kriner worked five to six days per week and Buck watched the children all but two of those days. Id. at 83, 89.
Based upon the evidence of record discussed above, we find it eminently reasonable that the finder of fact concluded that Buck had a duty to protect Child, that Buck was aware of his duty to protect Child and that Buck failed to protect Child over a period of time evincing a course of conduct. Buck clearly had a duty to protect Child. The evidence shows that Buck, who lived in Child's household, was Child's caretaker for at least three to four days per week while Kriner was at work. The evidence also shows that Buck was aware that Child was in circumstances that could threaten his welfare, given Buck's acknowledgement to Orner that he saw various injuries on Child's body. Finally, regarding the course of conduct element, Dr. Bellino testified in detail as to the age of Child's injuries, and as noted previously, Buck admitted his knowledge of some of Child's injuries. This evidence shows that Buck failed to act to protect Child over a period of time and demonstrates a course of conduct. We are bound to view the evidence presented at trial in the light most favorable to the Commonwealth as verdict winner (Collins, 70 A.3d at 1249), and in our view, the evidence establishes the elements challenged by Buck. Thus, no relief is due.
In his third issue, Buck contends that the verdict is against the weight of the evidence. With respect to our review of a weight claim, this Court has stated:
An allegation that the verdict is against the weight of the evidence is addressed to the discretion of the trial court. Commonwealth v. Dupre, 866 A.2d 1089, 1101 (Pa.Super. 2005), appeal denied, 583 Pa. 694, 879 A.2d 781 (2005) (citing Commonwealth v. Sullivan, 820 A.2d 795, 805– 806 (Pa.Super. 2003), appeal denied, 574 Pa. 773, 833 A.2d 143 (2003) (quoting Commonwealth v. Widmer, 560 Pa. 308, 744 A.2d 745, 751–752 (2000))). The Pennsylvania Supreme Court has explained that '[a]ppellate review of a weight claim is a review of the exercise of discretion, not of the underlying question of whether the verdict is against the weight of the evidence.' Widmer, 744 A.2d at 753 (citation omitted). To grant a new trial on the basis that the verdict is against the weight of the evidence, this Court has explained that 'the evidence must be 'so tenuous, vague and uncertain that the verdict shocks the conscience of the court.'' Sullivan, 820 A.2d at 806 (quoting Commonwealth v. La, 433 Pa.Super. 432, 640 A.2d 1336, 1351 (1994), appeal denied, 540 Pa. 597, 655 A.2d 986 (1994)).
[This Court shall not undertake to reassess credibility of witnesses, as] it is well settled that we cannot substitute our judgment for that of the trier of fact. Commonwealth v. Holley, 945 A.2d 241, 246 (Pa.Super. 2008). Further, the finder of fact was free to believe the Commonwealth's witnesses and to disbelieve the witness for the Appellant. See Commonwealth v. Griscavage, 512 Pa. 540, 517 A.2d 1256 (1986) (the finder of fact is free to believe all, none, or part of the testimony presented at trial)
Commonwealth v. Chine, 40 A.3d 1239, 1243-44 (Pa.Super. 2012) (citation omitted), appeal denied, ___ Pa. ___, 63 A.3d 773 (2013).
Buck asserts that "this case should shock one's sense of justice because it is essentially guilty by association." Id. at 21. In support of his claim, Buck points to Officer Shane Mowery's testimony without elaboration and contends that Officer Mowery "describes the circumstances underlying the investigation as a fog." Id. (citing N.T. 5/11/12, at 95). Buck further argues that he was convicted upon such little evidence; especially considering the Commonwealth produced no evidence to establish that Buck knew the severity of Child's injuries or that Buck had an "opportunity to process what was taking place and effectuate a different result." Id. at 21-22.
The 'fog' if you will, referred to the circumstantial evidence this case was built upon. This Court does not find the Commonwealth's mention of the word 'fog' to be fatal to its case. In addition, there is sufficient evidence in the record which places [Buck] at the scene, regularly, with supervisory power over the child. [Buck] acknowledges the causes of several of the injuries on the minor child and freely indicates that he believes there were problems with the parenting duties afforded to the young boy. It is acknowledged by this Court that this case is largely circumstantial; however, that fact alone does not increase the presence of a reasonable doubt. It is the purview of every fact-finder to take the information presented to it at trial and utilize the same to effectively retrodict the criminal events which transpired. Ultimately this case hinged on the credibility of the witnesses, and credibility of witness testimony is unassailably left to the ratiocinations of the jury.
Trial Court Opinion, 7/22/13, at 20-21. Our review of the record comports with that of the trial court.
As we discussed at length above, Dr. Bellino testified in great detail regarding Child's injuries and the age of those injuries. Orner also testified about her interview with Buck, in which he acknowledged his awareness of Child's injury to his rib cage, arm, face head and penis. Furthermore, Buck lived in the same household as Child and was in charge of his care three to four days a week while Kriner was at work. Buck's reliance on Officer Mowery's testimony in which he referred to the clarity of the circumstances underlying the investigation as a fog does not advance his cause, as the jury was free to believe or disbelieve Officer Mowery's testimony. Chine, 40 A.3d at 1244.
Moreover, Buck's assertion regarding the "fog" is largely unexplained. See Appellant's Brief at 20. Our review of the transcript reveals that Officer Mowery testified that he interviewed several people regarding the alleged abuse to Child. N.T., 5/11/12, at 94-95. Officer Mowery stated that after interviewing various people, his understanding of what was going on got "a little foggier." Id. at 95. He explained:
Well, stories had changed from one interview to the next. One person would suspect and allege that some of these injuries were caused by another. That person would blame somebody else. Another person might blame – was blaming the dog, the sister. So we were getting pulled and pushed in many different directions with the various stories we were getting.
Id. at 96. Officer Mowery also pointed out that there were allegations of child abuse so the initial investigation was an assault investigation. Id. Ultimately, however, Officer Mowery could not determine who committed the assaultive behavior against Child. Id. at 102. Thus, it would appear that the Commonwealth pursed the crime of EWOC instead, and, in context, Officer Mowery's testimony lends no support for Buck's challenge to the EWOC conviction. We accordingly find no error in the trial court's exercise of discretion.
In his final issue, Buck challenges, for the second time, the sufficiency of the evidence presented by the Commonwealth to prove a course of conduct. Appellant's Brief at 22. For the reasons discussed in our resolution of Buck's second issue, we find no merit to this claim.
Judgment of sentence affirmed.