from the Judgment of Sentence January 28, 2016 In the Court
of Common Pleas of Fayette County Criminal Division at No.:
BEFORE: DUBOW, J., MOULTON, J., and MUSMANNO, J.
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. After careful review, we affirm.
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.
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
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.
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.
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.
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.
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.
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.
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.
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.
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.
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
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.
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.
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.
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.
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 ...