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Commonwealth v. Savage

Superior Court of Pennsylvania

March 7, 2017


         Appeal from the Judgment of Sentence January 28, 2016 In the Court of Common Pleas of Fayette County Criminal Division at No.: CP-26-CR-0000536-2015

          BEFORE: DUBOW, J., MOULTON, J., and MUSMANNO, J.


          DUBOW, J.

         Appellant, Damon Wesley Savage, appeals from the Judgment of Sentence entered in the Fayette County Court of Common Pleas following his convictions for Aggravated Assault of a Child less than six years of age, Simple Assault, Endangering the Welfare of Children, and Recklessly Endangering Another Person.[1] After careful review, we affirm.

         In this child abuse case, Appellant is the victim's father. Appellant lived with his girlfriend, Diana Bennett, and shared custody of the victim with the victim's mother. On October 22, 2014, the victim was nine months old and while staying at Ms. Bennett's home, suffered facial injuries as a result of severe slaps across the left side of his face.

         Before Appellant was scheduled to drop off the victim to the victim's mother, Appellant called the victim's mother to tell her that the victim had a small bruise by his eye as a result of the victim falling off a bed. N.T. Trial at 12.[2] When the victim's mother saw the victim and the severity of the marks on the victim's face, the victim's mother took the victim to the hospital. Id. at 13, 15. The hospital admitted the victim.

         The victim's mother then contacted the police and met with Trooper James Garlick and a caseworker from the Children and Youth Service Agency ("CYS"), Brittany Liptak. Id. at 15.

         Trooper Garlick then interviewed Appellant at Ms. Bennett's home. Appellant told the state trooper that it was the Appellant who "was alone with [the victim] in the bedroom." Id. at 32. Appellant further explained that he "was changing [the victim]'s diaper and he turned to get some powder and that when he turned back around [the victim] rolled off the bed onto the floor." Id.

         Rather than interview Appellant alone, Trooper Garlick interviewed Appellant while Ms. Bennett was in the next room. Ms. Bennett periodically interrupted the interview and corrected the Appellant's statements about the incident. Each time, Appellant concurred with Ms. Bennett's statements about the incident. Id. at 49. In fact, Appellant stated originally that the injury was on the right side of the victim's face, but Ms. Bennett interjected that the injury was on the left side of the victim's face. Id. at 47.

         While the medical professionals were treating the victim in the hospital, a doctor examined the victim and concluded that the injuries were not consistent with a fall from a bed and non-accidental. Commonwealth's Exhibit 4; N.T. Trial at 22-26. As a result, the state trooper obtained an arrest warrant for Appellant the next day.

         The state trooper served the arrest warrant on Appellant and while transporting Appellant to the State Police Barracks, Appellant changed his story and said that he lied the previous day. Appellant stated that he was out riding his "quad" while Ms. Bennett took care of the victim. N.T. Trial at 73. In particular, Appellant said that Ms. Bennett "must of snapped and slapped the victim" and Ms. Bennett had problems with CYS and her son. Id. at 75. Appellant also said that "he agreed to take the blame for the victim falling out of bed." Id. at 76.

         Brittany Liptak, the CYS caseworker, interviewed Ms. Bennett's son, H.B., who lived with Ms. Bennett and Appellant. At the time of the interview, H.B. was in first grade. Ms. Liptak prepared a report, which included a summary of H.B.'s statements to her ("CYS Report"). H.B. told Ms. Liptak that it was his mother, Ms. Bennett, who was with the victim at the time of the incident and Appellant was downstairs. H.B. also stated that his mother "smacks him in the face a lot because he talks back" and that his mother "has a mean smack." Id. H.B. also stated that his mother "hasn't smacked his face in a pretty long time because he is good now." Id.

         Ms. Liptak testified that H.B. did not have any problem remembering, was clear on what he said and she believed him. N.T. Trial at 178.

         The trial began on January 11, 2016. The Commonwealth first called Dr. Adelaide Eichmann, who is the pediatrician at Children's Hospital in Pittsburgh and examined the victim. Dr. Eichmann concluded that the victim's injuries were non-accidental and the result of child abuse.

         In particular, Dr. Eichmann concluded that the victim's injuries were as a result of "slap marks on his face." Id. at 22, 26. She also found the victim's injuries were not consistent with falling off a bed. Id.

         The next witness was State Trooper James Garlick who investigated the claim of child abuse. Trooper Garlick tesified that Appellant initially stated that he was with the victim and the victim fell off the bed. Trooper Garlick also testified about Diana Bennett interrupting his interview with Appellant and correcting Appellant's statements.

         Trooper Garlick further testified that Appellant changed his story after Trooper Garlick arrested Appellant. Appellant stated that the victim was with Ms. Bennett at the time of the incident and he took the blame the day before in order to prevent CYS from investigating Ms. Bennett's ability to care for her child. Id. at 34.

         The Commonwealth next called Diana Bennett who testified that it was Appellant who was with the victim when she heard the victim cry. She then went into the bedroom where Appellant was with the victim and Appellant was trying to console the victim. Id. at 111. On cross-examination, she admitted that once she slapped H.B., her son. Id. at 115. She also testified that CYS investigated her ability to care for H.B. because of her addiction to heroin. Id. at 116.

         Appellant's counsel then wanted to call H.B. as a witness. The trial court held an in camera interview of H.B. to consider his competency. After asking him questions about his ability to differentiate between telling the truth and a lie, Appellant's counsel asked him about the statements he made to CYS.

         Although H.B. remembered the interview and making statements, he recanted his earlier statements. Id. at 164, 165. In particular, H.B. now testified that he was ...

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