Opinion
J-S15009-18 No. 2938 EDA 2017
06-26-2018
COMMONWEALTH OF PENNSYLVANIA Appellee v. SEAN DONNELL D. CARTER Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence March 23, 2017
In the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-0004485-2013 BEFORE: STABILE, DUBOW, JJ., and FORD ELLIOTT, P.J.E. MEMORANDUM BY STABILE, J.:
Appellant Sean Donnell D. Carter appeals from the March 23, 2017 judgment of sentence entered in the Court of Common Pleas of Philadelphia County ("trial court"), following his bench convictions for aggravated assault, endangering the welfare of children ("EWOC"), possession of an instrument of crime ("PIC"), simple assault, and recklessly endangering another person ("REAP"). Upon review, we affirm.
18 Pa.C.S.A. §§ 2702(a), 4304(a)(1), 907(a), 2701(a), and 2705, respectively.
The facts and procedural history of this case are undisputed. As recounted by the trial court:
The [foregoing] charges arose out of incidents that occurred in the late summer of 2012, during which [A]ppellant injured I.H., a two-
year old child in his care,causing her to suffer a knife wound to her head as well as an injury to her left hand and other parts of her that required her to be hospitalized and undergo surgery for a fractured skull.
. . . .
On September 19, 2012, [when Appellant was serving as I.H.'s guardian], she was transported by an ambulance to St. Christopher's Hospital in Philadelphia. Upon examination, I.H. was deemed to have a five to six centimeter long laceration to her skull and an injury to her left hand as well bruising to various parts of her body. [Appellant] stated that the injury to her skull was caused by a large chopping knife that accidentally fell a couple of feet off of top of a counter as he was washing dishes and the injury to her hand was self-inflicted by I.H. herself when she began flailing about in a bathtub as [Appellant] attempted to clean the wound to her head. He further stated that as he was calling for an ambulance, I.H. fell down some steps. He added that the bruises on I.H.'s buttocks resulted from her having to wear diapers and a bruise on her leg from a bug bite.
An examination of I.H's skull revealed that it had been fractured and a membrane around her skull had been penetrated by the knife. I.H. also had bleeding under her skull caused by an injury to another part of her skull, which damaged part of her brain and which was not caused by having been stuck with the knife. Due to the severity of the knife wound, I.H. had to undergo surgery to repair the fracture and the damage to her scalp and the membrane around her skull.
In addition to the laceration, skull fracture, and bruising to her brain, I.H. also had bruises on various parts of her body, including her left thigh, buttocks, chin, ankle, top of the knee and on both sides of her left hand.
Dr. Maria DiGiorgio McColgan, who specialized in ascertaining whether children who have suffered physical injuries were victims of abuse, examined I.H. a day after she was admitted to the hospital and reviewed I.H.'s medical records. Based on that review, the doctor opined that some of the bruises were caused by an implement of some sort such as a hair brush that some of them were not a day old, the bruise on her leg was not caused by a bug bite, and the ones on her buttocks did not result from wearing a diaper. She added that it was also her opinion that the knife wound was not caused in the manner in which [Appellant] said it was given the length of the laceration, the fact that it fractured the victim's skull. She added that because the knife was light in weight it would not have been able to inflict the laceration
and fractured skull if the incident had occurred as [Appellant] said it did because the blade of the knife would have had to have contacted I.H's skull perpendicular to it at a faster rate of speed than would have been generated had the knife simply fell off the counter. Finally, the doctor stated that the injuries to I.H's body were not caused by another young child or by having ridden a tricycle and that I.H. could not have caused the injury to her left hand by flailing about while being treated by [Appellant] because it would have required a larger of amount of force to cause the observed injuries to it.
In addition to reviewing records and examining I.H, Dr. McColgan spoke to I.H. a couple of days after her surgery. I.H. related that "Daddy" had caused her bruises by hitting her with something and also spontaneously said in the presence of a medical student that, "Daddy hit me with a knife." Dr. McColgan noted that the bruising to I.H.'s buttocks caused a high creatine phosphokinase (CPK) level, which the doctor explained could have been caused by the breakdown of muscle tissue as a result of the bruising caused by strikers to her body. Finally, she stated that I.H. suffered from developmental difficulties, which could have resulted from being born to a drug dependant mother and the abuse she suffered.
Ms. Karen Darelene Montgomery, an employee of the Philadelphia Department of Human Services (hereinafter DHS), interviewed [Appellant] on September 20, 2012, inside the residence where the incident occurred. During the interview, [Appellant] stated that I.H.'s mother permitted him and his paramour to watch I.H. while her mother received drug treatment, that I.H. called him "Daddy" and his paramour "Mommy," and that he was alone with I.H. when she suffered the laceration. [Appellant] further stated that he was doing the dishes and when he placed a pot down on the tip of the knife, the knife flipped into the air and down onto I.H., causing the laceration to her head as she was sitting on the counter. He further stated that he wrapped the injury in a towel, called 911, and took I.H. upstairs to wash the wound. He further stated that while in the tub, I.H. was flailing about and hit her hand on the faucet injuring it. Finally, with regard to a bruise on I.H.'s forehead, [Appellant] surmised that it occurred when I.H. tripped on steps getting out of the bathtub and hit her face, and that other injuries looked like bug bites, not bruises.
After relating the foregoing, [Appellant] took Ms. Montgomery into the kitchen and attempted to replicate what occurred to cause the laceration on I.H.'s head. Using a knife smaller than the one that caused the laceration to I.H. (the actual knife had been confiscated by police), he could not duplicate how I.H. was injured. He also stated that he did not know how I.H.'s buttocks were bruised and said that they could have resulted from her having tried to ride a tricycle at a cookout. Finally, Ms. Montgomery indicated that when the knife flipped off of the
counter, I.H. was sitting on the floor near the corner of the counter and not on top of the counter as he previously stated.Trial Court Opinion, 10/25/17, at 1-5 (unnecessary capitalizations and footnote omitted). Appellant subsequently was charged with, inter alia, aggravated assault, EWOC, PIC, simple assault, and REAP. Following a bench trial, the trial court found him guilty of all five offenses and sentenced him to ten to twenty years' imprisonment followed by seven years of probation on March 23, 2017. Appellant filed post-sentence motions, which the trial court denied on August 29, 2017. Appellant timely appealed to this Court.
[C.H.], I.H.'s mother, indicated that in August of 2012, she agreed to let [Appellant] take care of I.H. while she received drug treatment. [Appellant] brought I.H. to see her every Sunday. During one of those visits in early September of 2012, as she was leaving, I.H. became anxious and said that she did not want to go back with "Daddy Sean." She also said the same thing to C.H.'s sister and began crying during that conversation.
[C.H.] visited I.H. in the hospital and I.H. told her that, "Daddy Sean did it[]" and that he also caused a bruise that [C.H.] saw when she changed I.H.['] diaper. She further testified that she noticed a change in I.H., and that when she visited I.H. in the hospital, I.H had injuries that were not present a couple of days before I.H. was taken to the hospital.
Philadelphia Police Officer Tyrone Green of the Special Investigations Unit was assigned to investigate the incident. In the course of doing so, he spoke to [Appellant] at his residence and [Appellant] explained that the cut to I.H.'s head occurred when a knife accidentally fell off of a kitchen counter onto I.H., who was standing or sitting next to [Appellant] as he stood in the kitchen. When Officer Green asked [Appellant] about other bruises on I.H.'s body, [Appellant] said that he thought that some of them may have been caused by spider bites she incurred in her crib and others from him having "popped" her on her hand and twice on her thigh. Officer Green confiscated a knife that [Appellant] said was the one that caused the laceration, which was over eleven inches long, light in weight, and had seven holes above its blade.
Appellant agreed to care for I.H. while her mother was enrolled in a drug rehabilitation program.
To protect the I.H.'s (a minor victim) privacy, we have abbreviated her mother's name.
The trial court directed Appellant to file a Pa.R.A.P. 1925(b) statement of errors complained of on appeal. Appellant complied. In response, the trial court issued a Pa.R.A.P. 1925(a) opinion.
On appeal, Appellant raises five issues for our review:
I. Is the evidence insufficient to sustain the verdict of guilt because the Commonwealth failed to prove Appellant possessed the requisite mens rea for aggravated assault—causing serious bodily injury, [EWOC], [PIC], simple assault, and [REAP]?Appellant's Brief at 4.
II. Is the evidence insufficient to sustain the verdict of guilt because the Commonwealth's expert witness was unable to fully explain how each of the [victim's] injuries occurred?
III. Is the verdict against the weight of the evidence because the [victim] indicated that Appellant's girlfriend cause her injuries?
IV. Did the trial court err in admitting hearsay testimony from the [victim's] biological mother?
V. Did the sentencing court fail to put specific reasons on the record supporting the imposition of an aggravated sentence?
At the outset we note that Appellant has failed to preserve his first, fourth and fifth issues for review. With respect to his first claim implicating the sufficiency of the evidence, Appellant merely asserts that he generally lacked the mens rea to commit the crimes without analyzing or discussing the mens rea elements of each specific crime. His analysis of the mens rea claim is bereft of any legal authority, and limited to one paragraph, comprised of barely nine lines, reproduced here verbatim:
Appellant's actions in ensuring I.H. received prompt medical attention as well as his full cooperation in the instant investigation directly contradict any evidence that Appellant acted intentionally,
knowingly or recklessly. Appellant provided detectives and DHS with the version of events as they unfolded and turned over the knife that caused the laceration to I.H. Appellant unequivocally indicated to each witness that the knife fell while he was doing the dishes. Moreover, I.H.'s biological mother testified that she did not believe Appellant would harm I.H.Appellant's Brief at 12. It is well-settled that "Pennsylvania Rule of Appellate Procedure 2119 contains mandatory provisions regarding the contents of briefs. Rule 2119(a) requires the argument to be followed by discussion and pertinent citation of authorities. Additionally, this Court has held that arguments which are not sufficiently developed are waived." Commonwealth v. Irby , 700 A.2d 463, 464 (Pa. Super. 1997) (citation omitted). "It is the [a]ppellant who has the burden of establishing his entitlement to relief by showing that the ruling of the trial court is erroneous under the evidence or the law." Commonwealth v. Thomas , 909 A.2d 860, 862 (Pa. Super. 2006) (citation omitted). In Commonwealth v. Johnson , 985 A.2d 915 (Pa. 2009), our Supreme Court explained: "where an appellate brief fails to provide any discussion of a claim with citation to relevant authority or fails to develop the issue in any other meaningful fashion capable of review, that claim is waived." Johnson , 985 A.2d at 924 (citation omitted). As mentioned, the argument section of Appellant's brief generally discusses the element of mens rea, but fails to analyze it in relation to the individual crimes at issue here. Additionally, Appellant's argument section lacks any legal authority. Accordingly, we find his first claim waived. Even if it were not waived, he still would not be entitled to relief based on the reasons outlined in the trial court's October 25, 2017 opinion, which we adopt fully. See Trial Court Opinion, 10/25/17, at 5-11.
Appellant mischaracterizes what I.H. mother actually said about him at trial. Our review of the trial transcript reveals the following exchange:
Q. Do you have any bad feelings at all towards [Appellant] and besides what he did, before this happened and you let him take care of daughter, did you have any bad feeling?N.T. Trial, 10/7/16, at 103 (emphasis added).
A. No, I never thought he would endanger my child.
It also appears that Appellant invites us to reweigh the evidence and credit his proffered version of events. We decline the invitation. Commonwealth v. McClellan , 178 A.3d 874, 878 (Pa. Super. 2018) ("In deciding a sufficiency of the evidence claim, this court may not reweigh the evidence and substitute our judgment for that of the fact-finder.").
Next, Appellant likewise waived his fourth claim challenging the trial court's evidentiary ruling. As the Commonwealth notes, and confirmed by our review of the record, Appellant failed to lodge a timely hearsay objection when I.H.'s mother testified that I.H. told her "I don't want to go back to Daddy Sean." The Commonwealth's Brief at 13 (citing N.T. Trial, 10/7/16, at 94-95); see Pa.R.E. 103(a) (party may claim error in admission of evidence only when party makes a timely objection); Commonwealth v. Heckathorn , 241 A.2d 97, 102 (Pa. 1968) (failure to object to purported hearsay testimony resulted in waiver); see also Commonwealth v. Torres-Kuilan , 156 A.3d 1229 (Pa. Super. 2017) (citing Commonwealth v. Spell , 28 A.3d 1274, 1280 (Pa. 2011)) (failure to raise a timely objection waives issue), and Pa.R.A.P. 302(a) (issues not raised in the lower court are waived and cannot be raised for the first time on appeal). Even if this issue was not waived, Appellant obtains no relief based on the reasons outlined in the trial court's October 25, 2017 opinion. See Trial Court Opinion, 10/25/17, at 14-16.
We note that the trial court incorrectly refers to Pa.R.E. 613 when discussing Pa.R.E. 803(3).
Lastly, we agree with the Commonwealth's contention that Appellant's fifth issue challenging the discretionary aspects of sentence is waived because he failed to include a Pa.R.A.P. 2119(f) statement in his brief. See Commonwealth v. Love , 896 A.2d 1276, 1287 (Pa. Super. 2006) (holding that this Court is precluded from reaching the merits of a discretionary aspects of sentencing claim when the appellant fails to include a Rule 2119(f) statement, and the Commonwealth lodges an objection to the omission of the statement).
We now turn the merits of Appellant's second and third issues on appeal. After careful review of the record and the relevant case law, we conclude that the trial court accurately and thoroughly addressed the merits of Appellant's claims. See Trial Court Opinion, 10/25/17, at 11-13. Accordingly, we affirm Appellant's judgment of sentence. We further direct that a copy of the trial court's October 25, 2017 opinion be attached to any future filings in this case.
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 6/26/18
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