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[U] Commonwealth v. Buck

Superior Court of Pennsylvania

February 7, 2014

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
JAMES EDWARD BUCK, SR., Appellant

NON-PRECEDENTIAL DECISION

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.

MEMORANDUM

DONOHUE, J.

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[1] 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 FEUDAL[]E, ESQ., to represent the interests of JAMES BUCK, the Defendant. As appointed counsel, RICHARD FEUDALE, ESQ., ...


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