Com. v. Peterman, C. ( 2016 )

J-S42023-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
CHRISTOPHER LAWRENCE PETERMAN
Appellant No. 1412 WDA 2015
Appeal from the Judgment of Sentence March 19, 2015
In the Court of Common Pleas of Westmoreland County
Criminal Division at No(s): CP-65-CR-0000600-2013
BEFORE: SHOGAN, J., OTT, J., and FITZGERALD, J.*
MEMORANDUM BY OTT, J.: FILED SEPTEMBER 08, 2016
Christopher Lawrence Peterman brings this appeal from the judgment
of sentence imposed on March 19, 2015, in the Court of Common Pleas of
Westmoreland County. Peterman was convicted by a jury of aggravated
assault, criminal conspiracy to commit aggravated assault and endangering
the welfare of children, and endangering the welfare of children.1 The trial
court sentenced Peterman to serve an aggregate term of nine to 18 years’
imprisonment. The victim is the infant daughter of Peterman and his co-
defendant, Elizabeth Mae Fair.2 Peterman raises eleven issues in his brief,
____________________________________________
*
Former Justice specially assigned to the Superior Court.
1
See 18 Pa.C.S. §§ 2702(a)(1), 903(a)(1) and 4303(a)(1), respectively.
2
Fair was tried with Peterman and convicted of conspiracy to commit
aggravated assault and endangering the welfare of children, and
(Footnote Continued Next Page)
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challenging, inter alia, the trial court’s pre-trial rulings, evidentiary rulings,
the weight and sufficiency of the evidence, and the denial of his motion for
mistrial.3 Based upon the following, we affirm.
The trial court has provided a succinct statement of the procedural
history as well as an extensive discussion of the facts of this case and,
therefore, we need not restate them here. See Trial Court Opinion,
8/17/2015, at 3–14. Briefly, the three-month old victim suffered numerous
severe injuries while under the care of Peterson and Fair.4 The injuries were
discovered after Peterson and Fair brought the victim to Westmoreland
Hospital on October 20, 2012. An emergency room doctor called Dr. Rachel
Berger, a pediatrician and Division Chief for the Division of Child Advocacy at
Children’s Hospital of Pittsburgh, who was on-call for the Child Protection
_______________________
(Footnote Continued)
endangering the welfare of children. See 18 Pa.C.S. §§ 903(a)(1) and
4303, respectively. Fair has filed an appeal, which is listed immediately
prior to this appeal. Commonwealth v. Fair, 1411 WDA 2015, J-S42022-
16.
3
We note the trial court did not order Peterman to file a concise statement
of errors complained of on appeal, pursuant to Pennsylvania Rule of
Appellate Procedure 1925(b). On September 17, 2015, the trial court filed a
Rule 1925(a) statement, relying on its opinion filed August 17, 2015, which
accompanied the order denying Peterman’s post-sentence motions.
4
On July 20, 2012, the victim was born prematurely, and was hospitalized
for one and one-half months after her birth. Peterman and Fair learned how
to perform CPR and use the oxygen and monitor the victim required. On
September 24, 2012, the victim was discharged from the hospital with a
pulse oximeter, which kept track of her oxygen levels, and an A&B monitor,
which kept track of her heart rate and breaths. See Trial Court Opinion,
8/17/2015, at 3 n.1.
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Team, for consultation regarding child abuse concerns. The charges against
Peterman arose following an investigation by state police upon receiving a
report from Westmoreland County Children’s Bureau regarding suspected
child abuse by Peterman and Fair.
The first issue raised by Peterson is a challenge to the trial court’s
denial of his pre-trial motion for severance. See Peterson’s Brief at 1.
In reviewing this claim, our standard of review is well established:
The decision to grant or deny a motion for severance is
committed to the sound discretion of the trial court, reversal of
which is proper only in the event of an abuse of that discretion.
Commonwealth v. Chester, 526 Pa. 578, 587 A.2d 1367,
1373, cert. denied, 502 U.S. 959, 116 L. Ed. 2d 442, 112 S. Ct.
422 (1991). While joint trials are preferred in those cases in
which conspiracy is charged and the evidence against one actor
is the same or similar to that presented against the other actor,
the law is also clear that severance is required whenever
codefendants intend to present antagonistic defenses. Id.However, “the mere fact that there is hostility between the
defendants, or that one may try to save himself at the expense
of another, is in itself not sufficient grounds to require separate
trials.” Id. See also Pa.R.Crim.P. 583 (severance may be
ordered if prejudice established).
Commonwealth v. Hetzel, 822 A.2d 747, 763 (Pa. Super. 2003).
Here, prior to trial the Honorable John E. Blahovec denied Peterson’s
motion to sever, stating:
Where, as here, the crimes charged grow out of the same acts
and much of the same evidence is necessary or applicable to all
defendants, joint rather than separate trials are to be preferred.
Commonwealth v. Chester, 587 A.2d 1367 (Pa. 1991);
Commonwealth v. Childress, 680 A.2d 1184 (Pa. Super.
1996). Moreover, more than a bare assertion of antagonistic
defenses is required to justify severance. The mere fact that
there is hostility between the defendants, or that one may try to
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save himself at the expense of another, is in itself not sufficient
grounds to require separate trials. In fact it has been held that
the fact that “defendants have conflicting versions of what took
place, or the extents to which they participated in its, is a reason
for rather than against a joint trial because the truth may be
more easily determined if they are all tried together. See
Commonwealth v. Chester, at 1373.
Trial Court Opinion, 7/23/2013, at 1–2.
Peterman asserts “a real prejudice existed at trial and was not mere
speculation since the jury found him guilty and Fair not guilty of aggravated
assault on the same evidence.” Peterman’s Brief, at 2. Peterman asserts
the jury based the verdict on the identical evidence that did not identify who
committed the assaults. Id. He states that Fair testified on her own behalf
and he chose not to testify since he had crimen falsi convictions. Id. In
support of his argument, Peterman cites Commonwealth v. Patterson,
546 A.2d 596 (Pa. 1988).
We are not persuaded by Peterman’s argument and find that
Patterson supports the trial court’s ruling denying severance. In
Patterson, the Pennsylvania Supreme Court stated, “The mere fact that a
co-defendant might have a better chance of acquittal if tried separately is
not sufficient to grant a motion to sever.” Id. at 599. Based on our review,
we find no abuse of discretion by the trial court’s denial of the motion to
sever. Accordingly, we reject Peterman’s first argument.
In the second issue raised on appeal, Peterman contends the trial
court abused its discretion in denying his pre-trial motion to obtain Fair’s
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medical records.5 The entire discussion of Peterman’s second issue is, as
follows:
[Peterman] contends he was denied a fair trial when his pre-trial
Motion to Obtain [Fair’s] medical records her pertaining to post-
partum depression was denied. [Peterman] was not able to
inquire about evidence regarding [Fair’s] state of mind at the
time of the alleged crimes. [Peterman] contends this is real
prejudice at trial and was not mere speculation since this denial
impacted the evidence during a joint trial.
Peterman’s Brief, at 2.
The Commonwealth has objected to this issue on the grounds that
Peterman’s argument “is completely unsupported by any facts or argument
related to how said records were relevant and what they contained (beyond
a vague averment of post partum depression) [and] no case law is cited
regarding the lower court’s discretion in such motions.” Commonwealth’s
Brief, at 23. We fully agree with the Commonwealth’s position. Accordingly,
we find waiver as to Peterman’s second claim. See Pa.R.A.P. 2119(a);
Commonwealth v. McMullen, 745 A.2d 683, 689 (Pa. Super. 2000)
(failure to develop argument results in waiver).
Next, Peterman claims the trial court6 abused its discretion in
admitting prejudicial hospital photographs showing “the victim attached to
tubing and medical devices without displaying any visible injuries and a 3D
____________________________________________
5
The Honorable Richard E. McCormick, Jr., denied Peterman’s motion to
obtain mental health records by order filed March 24, 2014.
6
The Honorable Meagan Bilik-DeFazio presided at trial.
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image that was not representative of the victim’s injury.” Peterman’s Brief,
at 3. Peterman asserts the photographs and image “were so highly
prejudicial that any probative value was outweighed” by the prejudicial
impact and their admission denied him a fair trial. Id.“The admission of evidence is solely within the discretion of the
trial court, and a trial court’s evidentiary rulings will be reversed
on appeal only upon an abuse of that discretion.”
Commonwealth v. Reid, 627 Pa. 151, 99 A.3d 470, 493 (Pa.
2014). An abuse of discretion will not be found based on a mere
error of judgment, but rather occurs where the court has
reached a conclusion that overrides or misapplies the law, or
where the judgment exercised is manifestly unreasonable, or the
result of partiality, prejudice, bias or ill-will. Commonwealth v.
Davido, 106 A.3d 611, 645 (Pa. 2014).
Commonwealth v. Woodard, 129 A.3d 480, 494 (Pa. 2015).
Admission of potentially inflammatory photographs is governed by the
following two-step analysis:
First, a trial court must determine whether the photographs are
inflammatory. If not, they may be admitted if they have
relevance and can assist the jury’s understanding of the facts. If
the photographs are inflammatory, the trial court must decide
whether or not the photographs are of such essential evidentiary
value that their need clearly outweighs the likelihood of
inflaming the minds and passions of the jurors.
Commonwealth v. Pruitt, 951 A.2d 307, 319 (Pa. 2008) (citation
omitted). Additionally, “the fact that a medical examiner can describe the
victim’s wounds to the jury does not render photographs of those wounds
irrelevant.” Commonwealth v. Haney, 131 A.3d 24, 38 (Pa. 2015)
(quotations and citation omitted).
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An inflammatory photograph “must be of such a gruesome nature or
be cast in such an unfair light that it would tend to cloud an objective
assessment of the guilt or innocence of the defendant.” Commonwealth v.
Dotter, 589 A.2d 726, 729 (Pa. Super. 1991) (citation and quotation
omitted). Here, at issue are two photographs and one 3D image.
Commonwealth Exhibits 2, 3, and 6. One photograph, Commonwealth
Exhibit 2, showed the victim attached to tubing and with a collar to support
her head. The second photograph, Commonwealth Exhibit 3, showed
swelling in the right femur. The Commonwealth argues Peterman
“erroneously asserts that the victim’s injuries are not portrayed in the
hospital photographs of her.” Commonwealth Brief, at 25. We agree.
Having viewed the photographs, we conclude the trial court committed
no abuse of discretion in admitting these photographs and 3D image, which
we find to be non-inflammatory and relevant to show the nature and extent
of the victim’s injuries. Even accepting, arguendo, Peterman’s argument
that the photographs are inflammatory, we would find this issue meritless
since the photographs were highly probative as they related to the element
of serious bodily injury. See 18 Pa.C.S. § 2702(a)(1). As to Peterman’s
argument that the 3D image was not representative of the fracture because
“Dr. Berger testified the image reflects the victim had a fracture on the left
side of her skull while all medical reports indicate the fracture was on the
right side of the temporal skull,” Dr. Berger explained the image was simply
“a different view of the same 3D [imaging technology],” and the image was
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not flipped.” N.T., 12/1-5/2014, at 235, 238. Accordingly, we find no abuse
of discretion and, therefore, reject Peterman’s third claim.
In his fourth issue, Peterman contends the trial court abused its
discretion in precluding Peterman’s cross-examination of Brandy Trout
regarding Fair’s post partum depression. Peterman argues he attempted to
have Trout, an assessment caseworker with the Westmoreland County
Children’s Bureau, testify that she received information that Fair may have
post partum depression. Peterman’s Brief at 4. See N.T., 12/1-5/2014, at
181. The Commonwealth interposed an objection and, following a sidebar
conference, the trial court found that the question called for speculation, and
ordered that the question be stricken and instructed the jury to disregard it.
See N.T., 12/1-5/2014, at 184–185.
As we have already stated, the admission of evidence is within the
discretion of the trial court. See Woodard, supra. Here, Peterman
attempted to question Trout regarding an anonymous phone call that
provided information that Fair may have been suffering from post partum
depression. See N.T., 12/1-5/2014, at 184. Such testimony would have
been hearsay. Furthermore, as the trial court noted, since there was no
expert testimony to explain post partum depression, the proffered testimony
“would only call for speculation.” Id. We find no abuse of discretion in the
trial court’s ruling. Accordingly, no relief is due on this issue.
In his fifth issue, Peterman contends the trial court abused its
discretion in permitting the testimony of Trooper David Leonard regarding
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statements made by Peterman to Fair “as an exception to hearsay in
furtherance of a conspiracy.” Peterman’s Brief, at 5. Specifically, Trooper
Leonard testified concerning his interview with Fair, and her statements
relating what Peterman said to her about the purported collapse of the
bassinet. We conclude this testimony was permissible hearsay.
Pennsylvania Rule of Evidence makes hearsay within hearsay
permissible if each part of the combined statements falls within an exception
to the hearsay rule. See Pa.R.E. 805. Fair’s statements to Trooper Leonard
are admissible as an admission by a party opponent under P.R.E.
803(25)(A).7 Peterman’s statements to Fair are admissible under the co-
conspirator exception to the hearsay rule, Pa.R.E. 803(25)(E). The
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7
Pennsylvania Rule of Evidence 803(25) provides, in pertinent part:
(25) An Opposing Party’s Statement. The statement is offered
against an opposing party and:
(A) Was made by the party in an individual or representative
capacity;
…
(E) was made by the party’s coconspirator during and in
furtherance of the conspiracy.
The statement may be considered but does not by itself establish
the declarant’s authority under (C); the existence or scope of the
relationship under (D); or the existence of the conspiracy or
participation in it under (E).
Pa.R.E. 803(25)(A), (E).
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conspiracy here involved endangering the welfare of the child through a
course of conduct that involved failing to seek medical treatment. In this
regard, the testimony at issue involved Peterman’s explanation to Fair of the
bassinet collapse and their mutual satisfaction that the victim appeared fine
and they needed to do nothing further. N.T., 12/1-5/2014, at 421.8 We find
no abuse of discretion in the trial court’s ruling. Therefore, this issue fails to
warrant relief.
Next, Peterman claims the trial court abused its discretion in allowing
the display of the victim’s bassinet to the jury. Peterman asserts “neither
defendant said it was the cause” of the victim’s injuries. See Peterman’s
Brief, at 6.
As already stated, the applicable standard of review governing the
admission of evidence is abuse of discretion. During the trial, Dr. Berger
testified “I always ask families specific questions; can you think of any other
trauma, what about this injury. So, that’s what I did, I asked them.
[Peterman] at one point brought up the issue of the bassinet falling.” N.T.,
12/1-5/2014, at 206. Dr. Berger further testified that Peterman brought the
bassinet to show her. See id. at 207–208.
____________________________________________
8
This testimony contrasted with earlier witnesses’ testimony that, at the
hospital on October 20, 2012, both Peterman and Fair mentioned the
unconfirmed October 17, 2012, bassinet collapse as a possible source of
trauma. Id. at 345, 392.
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We find no abuse of discretion in the trial court’s ruling that the
bassinet could be displayed to the jury to assist them in determining
“whether or not [the bassinet] could have caused the injuries.” Id. at 513.
Furthermore, Peterman fails to present any support for his argument that
the evidence was prejudicial and exceeded any probative value, thereby
denying him a fair trial. See Peterman’s Brief, at 6. In any event, we would
reject such arguments as meritless in light of the issue before the jury
concerning the cause of the victim’s injuries. Therefore, this issue warrants
no relief.
In his seventh issue, Peterman asserts the trial court abused its
discretion in “not allowing [Peterman] to cross examine [Fair] on prior bad
acts.” Peterman’s Brief, at 6. Peterman merely states that due to this
denial he “was not able to zealously defend his case which denied him a fair
trial.” Id. at 7. Peterman does not identify what bad acts by Fair he sought
to introduce, where in the record he proffered the bad acts evidence, where
the trial court made its ruling, or where an objection preserved the issue for
review. See Pa.R.A.P. 2119(c) (“Reference to the record”), 2119(e)
(“Statement of place of raising or preservation of issues”); see also
Commonwealth v. Williams, 980 A.2d 667, 671 (Pa. Super. 2009) (noting
that under the rules of appellate procedure, an appellant must specify where
in the record a claim on appeal was preserved).
We have explained that “it is not the responsibility of this Court to
scour the record to prove that an appellant has raised an issue before the
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trial court, thereby preserving it for appellate review.” Commonwealth v.
Baker, 963 A.2d 495, 502 n.6 (Pa. Super. 2008). Accordingly, we conclude
this issue is waived.
In Peterman’s eighth issue, he challenges the trial court’s denial of his
motion for judgment of acquittal at Count 2, conspiracy to commit
aggravated assault. Peterman’s ninth issue is a claim that the verdicts for
aggravated assault and conspiracy to commit aggravated assault were
against the weight of the evidence. In his tenth issue, he challenges the
sufficiency of the evidence to sustain his convictions for aggravated assault
and conspiracy to commit aggravated assault.
In her opinion authored in support of the denial of post-sentence
motions, the Honorable Meagan Bilik-DeFazio set forth the standards of
review and relevant law, and thoroughly addressed these issues. See Trial
Court Opinion, 8/17/2015, at 15–21. As our review leads us to confirm,
without hesitation, that there is no basis upon which to overturn the trial
court’s determinations, we adopt Judge Bilik-DeFazio’s opinion as dispositive
of Peterman’s eighth, ninth, and tenth claims.
Finally, Peterman claims the trial court abused its discretion in denying
his request for a mistrial “when the jury foreperson stated the jury was
hopelessly deadlocked, unable to reach a verdict and did not want to
negotiate any further.” Peterman’s Brief, at 10.
“The amount of time a jury is kept together to deliberate is within
the discretion of the trial judge, and that decision will only be reversed for
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an abuse of discretion.” Commonwealth v. Smith, 131 A.3d 467, 475-76
(Pa. 2015). In Commonwealth v. Johnson, 668 A.2d 97 (Pa. 1995), the
Pennsylvania Supreme Court listed some factors to consider when
determining whether the trial court abused its discretion: “the charges at
issue, the complexity of the issues, the amount of testimony to consider,
the length of trial, the solemnity of the proceedings and indications from the
jury on the possibility of reaching a verdict.” Id. at 108.
The record reflects that the jury recessed at 3:35 P.M. and reconvened
at 5:38 P.M. with two questions and recessed again at 5:47 P.M. See N.T.,
12/1-5/2014, at 842, 849. At 9:22 P.M. the jury returned to the courtroom
and indicated in a message to the trial judge that the jury was deadlocked
as to at least one charge. Id. at 849. Upon being questioned by the trial
judge, the foreperson told the judge the jury did not need any additional or
clarifying instructions, and there was not a reasonable possibility of the jury
reaching a unanimous verdict. Id. at 851–852. The foreman also indicated
to the trial judge he did not believe additional time would be helpful. Id. at
852. Thereafter, trial court instructed the jury to resume deliberations, and
Peterman did not object to the court’s instruction. The proceedings recessed
at 9:37 P.M. and reconvened at 9:54 P.M. when the jury returned with a
question. Id. at 861. The proceedings recessed at 10:00 P.M. and
reconvened at 10:32 P.M., with the return of the jury’s verdicts. Id. at 865.
On this record, we discern no abuse in the court’s decision to request
the jury to give further consideration to the evidence and charge of the
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court, rather than to grant the extreme remedy of a mistrial. See Smith,
supra, 131 A.3d at 469 (“A mistrial is an extreme remedy that is required
only where the challenged event deprived the accused of a fair and impartial
trial.”). At the time the jury communicated its inability to reach a
unanimous decision on at least one charge, they had been deliberating for
less than six hours following a jury trial that lasted from December 2, 2014
to December 5, 2014. While there were two defendants, the charges were
not so complex that the jury could not reach a verdict. Accordingly, we
reject Peterman’s final issue.
Having reviewed the issues by Peterman, and finding them to be
meritless or waived, we affirm the judgment of sentence.
Judgment of sentence affirmed.9
Judge Shogan joins this memorandum.
Justice Fitzgerald concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
____________________________________________
9
In the event of further proceedings, the parties are directed to attach a
copy of the trial court’s opinion of August 17, 2015.
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Date: 9/8/2016
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Circulated 08/23/2016 02:31 PM
IN THE SUPERIOR COURT OF PENNSYLVANIA, SITTING AT PITISBURGH
NO. 1412 WDA 2015
COMMONWEALTH OF PENNSYLVANIA,
APPEL LEE
VS.
CHRISTOPHER LAWRENCE PETERMAN,
APPELLANT
BRIEF FOR APPELLANT
APPEAL FROM THE JUDGMENT OF SENTENCE ENTERED IN THE
COURT OF COMMON PLEAS OF WESTMORELAND COUNTY,
PENNSYLVANIA, CRIMINAL DIVISION, ON MARCH 19, 2015 AT NO.
600 CRIMINAL 2013 BY THE HONORABLE JUDGE MEAGAN BILIK-
DEFAZIO.
Gregory L. Cecchetti, Esquire
Assistant Public Defender
I.D. No. 36903
2 North Main Street
Suite 404 Courthouse Square
Greensburg, PA 15601
(724) 830-3545
TABLE OF CONTENTS
STATEMENT OF JURISDICTION iv
ORDER IN QUESTION vi
STATEMENT OF SCOPE AND STANDARD OF REVIEW v
ISSUES RAISED ON APPEAL vii
STATEMENT OF THE CASE i
SUMMARY OF ARGUMENTS ii
ARGUMENTS 1
CONCLUSION 12
OPINION AND ORDER OF THE LOWER COURT App. A.
PROOF OF SERVICE 13
ii
TABLE OF CITATIONS
CASE: PAGES:
Commonwealth v. Brown, 538 Pa. 410, 435, 648 A.2d 1177, 1189 (1994) . 9
Commonwealth v. Chmiel, 585 Pa. 547, 889 A.2d 501, 534 (2005) . 7
Commonwealth v. Clay, 619 Pa. 423, 619 A3d. 1049 (2013) . v
Commonwealth v. Dolfi, 483 Pa. 266, 396 A.2d 635, 627 (1979) . iii, 8
Commonwealth v. Evans, 901 A.2d 528, 532 (2006) . v,9,10
Commonwealth v. Lease, 703 A.2d 506, 508 (1997) . 11
Commonwealth v. Morales, 508 Pa. 51, 61, 494 A.2d 367, 372 (1985) . 1
Commonwealth v. Patterson, 519 Pa 190, 546 A2d 596, 599 (1988) . ii, 2
Commonwealth v. Simpson, 436 Pa. 459, 260 A.2d 751 (1970) . 8
Commonwealth v. Stafford, 749 A.2d 489, 500 (2000) . v, 11
Commonwealth v. Tyson, 119 A.3d 353 (2015) . v,iii,3,6
Commonwealth v. Zdrale, 530 Pa. 313, 608 A.2d 1037 (1992) . 5
STATUTES:
Pa.R.Crim.P. 583 . 1
iii
STATEMENT OF JURISDICTION
The Pennsylvania Superior Court has jurisdiction pursuant to Pa. R.A.P. § 341 as
it is an appeal taken from a final Order of the Court of Common Pleas of Westmoreland
County, Pennsylvania.
iv
STATEMENT OF SCOPE AND STANDARD OF REVIEW
Appellate review of a weight of the evidence claim is a review of the exercise of discretion
in ruling on a new trial motion, not of the underlying question of whether the verdict is against the
weight of the evidence. Commonwealth v. Clay, 619 Pa. 423, 619 A3d. 1049 (2013)
In a challenge to insufficiency of evidence the appellate court must assess the evidence
and all reasonable inferences drawn there from in the light most favorable to the verdict winner;
it must determine whether there is sufficient evidence to enable the fact finder to find every
element of the crime charged beyond as reasonable doubt. Commonwealth v. Evans, 901 A.2d
528, 532 (2006)
In a challenge as to an abuse of discretion it is not merely an error of judgment, but is
rather the overriding or misapplication of the law, or the exercise of judgment that is manifestly
unreasonable, or the result of bias, prejudice, ill-will, or partiality, as shown admission by the
evidence of record. Commonwealth v. Tyson, 119 A.3d 353 (2015).
In a challenge to a motion for mistrial, the stand is within the discretion of the trial court.
Commonwealth v. Stafford, 749 A.2d 489, 500 (2000).
v
ORDER IN QUESTION
COMMONWEAL TH vs. CHRISTOPHER L. PETERMAN
SENTENCING MARCH 19, 2015
PAY COSTS OF PROSECUTION, PERTINENT CONSTABLE FEES, EMSA FEE, MCCARE
FUND SURCHARGE, A MONTHLY SUPERVISION FEE DURING TERM OF COURT
SUPERVISION, AND COSTS OF TREATMENT OR OTHER ORDERED PROGRAMS. ADULT
PROBATION TO DETERMINE PAYMENT SCHEDULE FOR COSTS/FINES. ELIGIBLE TO
PARTICIPATE IN A COUNTY REENTRY PROGRAM. LAB F'EES: $719.00-PSPCL
HAVE A DRUG &ALCOHOL EVALUATION AND MENTAL HEALTH EVALUATION, FOLLOW
RECOMMENDED TREATMENT, AND PAY COSTS. DNA SAMPLE TAKEN AND PAY COSTS.
CT.#1: INCARCERATION FOR A PERIOD OF NOT LESS THAN 9 YEARS NOR MORE THAN
18 YEARS AT DEPT. OF CORRECTIONS, CREDIT FOR TIME SERVED FROM 1/28/12.
(DEF IS NOT TO HAVE ANY UNSUPERVISED CONTACT WITH ANY OTHER·MINOR CHILD.)
ACTOR TO HAVE NO DIRECT/INDIRECT CONTACT WITH EMILEE PETERMAN.
VICTIM'S FAMILY PRESENT IN COURT FOR HEARING.
POST SENTENCE AND APPEAL RIGHTS GIVEN.
REMARKS: SWORN TESTIMONY WAS TAKEN FROM ROBIN STIVASON (VICTIM IMPACT
STATEMENT). SWORN TESTIMONY WAS TAKEN FROM DEFENSE WITNESS~S CLEM
PETERMAN, SHEILA PETERMAN AND LISA PETERMAN. COMM. PRESENTED CLOSING
ARGUMENT. DEFENSE PRESENT CLOSING ARGUMENT. COMM. PRESENTED REBUTIAL
ARGUMENT. THE DEFENDANT PROVIDED A REMORSE STATEMENT.
CT#2: THE DEFENDANT IS SENTENCED TO 8-16 YEARS INCARCERATION (SCI)
(CONCURRENT TO CT#1 ). ·
CT#3: THE DEFENDANT IS SENTENCE TO 3 %-7 YEARS INCARCERATION (SCI)
(CONCURRENT TO CT#1 ).
ALL MEDICAL EQUIPMENT IS TO BE RELEASED TO THE APRIA HEAL TH CARE
COMPANY.
DEF IS TO SUCCESSFULLY COMPLETE A PARENTING PROGRAM AND FOLLOW ALL
RECOMMENDATIONS.
DEF IS NOT RRRI ELIGIBLE.
DEFENDANT IS TO REMAIN AT THE W.C.P. FOR 120 DAYS TO ASSIST HIS COUNSEL IN
THE APPEAL PROCESS.
vi
ISSUES RAISED ON APPEAL
I. WHETHER JUDGE JOHN E. BLAHOVEC ABUSED HIS DISCRETION IN
DENYING APPELLANT'S PRE-TRIAL MOTION TO SEVER FROM ELIZABETH
FAIR RESULTING IN AN UNFAIR TRIAL?
ANSWER: YES.
II. WHETHER JUDGE RICHARD E. MCCORMICK, JR. ABUSED HIS DISCRETION
IN DENYING APPELLANT'S PRE-TRIAL MOTION TO OBTAIN ELIZABETH .
FAIR'S MEDICAL RECORDS THAT DENIED HIM A FAIR TRIAL?
ANSWER: YES.
Ill. WHETHER JUDGE MEAGAN BILIK-DEFAZIO ABUSED HER DISCRETION IN
DENYING APPELLANT A FAIR TRIAL BY ADMITIING PREJUDICIAL HOSPITAL
PHOTOGRAPHS SHOWING THE VICTIM ATIACHED TO TUBING AND
MEDICAL DEVICES WITHOUT DISPLAYING ANY VISIBLE INJURIES OR
ACCURATELY IDENTIFYING AN INJURY?
ANSWER: YES.
IV. WHETHER JUDGE BILIK-DEFAZIO ABUSED HER DISCRETION IN DENYING
APPELLANT'S CROSS EXAMINATION OF BRANDY TROUT REGARDING
ELIZABETH FAIR'S POSTPARTUM DEPRESSION?
ANSWER: YES.
vii
V. WHETHER JUDGE BILIK-DEFAZIO ABUSED HER DISCRETION IN
PERMITIING THE TESTIMONY OF TROOPER LEONARD AS AN EXCEPTION
TO HEARSAY IN FURTHERANCE OF A CONSPIRACY DENYING THE
APPELLANT A FAIR TRIAL?
ANSWER: YES.
VI. WHETHER JUDGE BILIK-DEFAZIO ABUSED HER DISCRETION IN ALLOWING
THE DISPLAY OF THE BASSINET TO THE JURY TO DEMONSTRATE IT
COULD NOT HAVE CAUSED THE INJURIES WHEN NEITHER DEFENDANT
SAID IT WAS THE CAUSE?
ANSWER: YES.
VII. WHETHER JUDGE BILIK-DEFAZIO ABUSED HER DISCRETION NOT
ALLOWING APPELLANT TO CROSS EXAMINE CO-DEFENDANT ON PRIOR
BAD ACTS WHICH DENIED HIM A FAIR TRIAL?
ANSWER: YES.
VIII. WHETHER JUDGE BILIK-DEFAZIO ABUSED HER DISCRETION IN DENYING
APPELLANT'S MOTION FOR JUDGMENT OF ACQUITIAL REQUESTING THE
COUNT OF CONSPIRACY BE DISMISSED FOR LACK OF EVIDENCE?
ANSWER: YES.
viii
IX. WHETHER THE GUil TY VERDICT FOR AGGRAVATED ASSAULT AND
CONSPIRACY TO COMMIT AGGRAVATED ASSAULT WERE AGAINST THE
WEIGHT OF THE EVIDENCE?
ANSWER: YES
X. WHETHER THE EVIDENCE WAS INSUFFICIENT TO PROVE AGGRAVATED
ASSAULT AND CONSPIRACY TO COMMIT AGGRAVATED ASSAULT?
ANSWER: YES.
XI. WHETHER JUDGE BILIK-DEFAZIO ABUSED HER DISCRETION IN DENYING
APPELLANT'S REQUEST FOR MISTRIAL WHEN THE JURY FOREPERSON
STATED THE JURY WAS HOPELESSLY DEADLOCKED, UNABLE TO REACH A
VERDICT AND DID NOT WANT TO NEGOCIATE ANY FURTHER?
ANSWER: YES.
ix
STATEMENT OF THE CASE
On December 5, 2014, appellant was found guilty by jury to Aggravated Assault, Criminal
Conspiracy to Aggravated Assault and to Endangering Welfare of Children (Course of Conduct).
On March 19, 2015, Judge Meagan Bilik-DeFazio sentenced the appellant at Aggravated
Assault to 9-18 years incarceration, at Criminal Conspiracy to Aggravated Assault to 8-16 years
concurrent incarceration; and, at Endangering Welfare of Children (Course of Conduct) to 3 Yi to
7 years concurrent incarceration.
On March 30, 2015, appellant timely filed a Post-Sentence Motion consisting of a Motion
for Acquittal as to Aggravated Assault and Conspiracy to Aggravated Assault, Judgment of
Acquittal and a Motion for a New Trial (Weight of the Evidence). On August 17, 2015, all his
post-sentence motions were denied.
On September 11, 2015 appellant timely filed a Notice of Appeal to the Pennsylvania
Superior Court.
SUMMARY OF ARGUMENTS
Appellant contends he was denied a fair trial when his pre-trial Motion to Sever from co-
defendant Elizabeth Fair was denied. Appellant believes a real prejudice existed at trial and was
not mere speculation since the jury found him guilty of aggravated assault and acquitted the co-
defendant on identical or similar evidence. Commonwealth v. Patterson, 519 Pa 190, 546 A2d
596, 599 (1988).
Appellant contends he was denied a fair trial when his pre-trial Motion to Obtain co-
defendant's medical records pertaining to post-partum depression was denied. Appellant was
not able to inquire about evidence regarding the co-defendant's state of mind at the time of the
alleged crimes. Appellant contends this is real prejudice at trial and was not mere speculation
since this denial impacted the evidence during a joint trial. Patterson, supra.
Appellant contends he was denied a fair trial when his attempt to cross examine Brandy
Trout of the Westmoreland County Children's Bureau regarding post-partum depression was
denied. Appellant contends this is real prejudice at trial and not mere speculation since this
denial impacted the evidence during a joint trial. Appellant was not able to illicit adverse
evidence from the co-defendant which unfairly resulted in a guilty verdict of aggravated assault.
Patterson, supra.
ii
Appellant contends Judge Bilik-Defazio abused her discretion by admitting unfairly
prejudicial hospital photographs of the victim attached to tubing and medical devices without
displaying any visible injuries and a 30 image that was not representative of the victim's injury.
The photos and image were so highly prejudicial that any probative value was outweighed and
denied the appellant a fair trial. Commonwealth v. Tyson, 119 A.3d 353 (2015). Also, appellant
contends Judge Bilik-Defazio abused her discretion by allowing the bassinet to be displayed to
the jury since the prejudicial impact outweighed any probative value and denied him afair trial.
Tyson, supra.
Appellant contends Judge Bilik-Defazio abused her discretion by permitting statements of
the co-defendant made in furtherance of the conspiracy to a law enforcement officer. Appellant
believes the testimony was inadmissible, irrelevant and reversible error denying him a fair trial.
Appellant's alleged statements to Elizabeth Fair's were not in furtherance of a conspiracy.
Appellant contends that the verdict was against the weight and sufficiency of the evidence
to establish aggravated assault or conspiracy to commit aggravated assault. Appellant believes
the Commonwealth did not prove the required element of an agreement either through direct or
circumstantial evidence to Aggravated Assault and Conspiracy and to Aggravated Assault.
Commonwealth v. Dolfi, 483 Pa. 266, 396 A.2d 635, 627 (1979).
iii
Appellant contends Judge Bilik-Defazio abused her discretion in denying his motion for
judgment of acquittal made at the close of the Commonwealth's case-in-chief requesting the
count of Conspiracy to Aggravated Assault be dismissed for lack of evidence to go to the jury.
Dolfi, supra.As to the count of Aggravated Assault, Appellant contends the Commonwealth presented
the same evidence against the two defendants and there is no evidentiary basis for the jury to
return with the inconsistent guilty verdict against the appellant and not against Elizabeth Fair.
Appellant contends Judge Bilik-Defazio abused her discretion in denying his attempt to
introduce prior bad acts of the co-defendant. Judge Bilik-Defazio ruled that the prior bad acts
could only be admitted if the acts resulted in a conviction. However, defendant believes that
Commonwealth v. Barger, 743 A.2d 447, 481 (1999) is controlling and stands for the proposition
that a defendant in a criminal case may introduce bad act evidence when he contends someone
else is criminally responsible for the offense or a cautionary instruction to the jury for a limited
purpose of which the evidence is admitted. Appellant was not able to zealously defend his case
which denied him a fair trial.
Appellant contends Judge Bilik-Defazio abused her discretion in denying his motion for
judgment of acquittal as to Conspiracy to Commit Aggravated Assault. Appellant contends the
jury verdict was against the weight of the evidence. The lack of evidence shock one's sense of
iv
justice to support a guilty verdict since there is no direct or circumstantial evidence that he
committed conspiracy to commit aggravated assault.
Appellant contends the jury verdict was against the sufficiency of the evidence
to allow the fact finder to find every element of aggravated assault or conspiracy to commit
aggravated assault.
Appellant contends Judge Bilik-Defazio abused her discretion and erred in not granting
his request for mistrial when the jury foreperson stated that the jury was hopelessly deadlocked,
unable to reach a verdict and did not want to negotiate any further.
v
ARGUMENTS
I. WHETHER JUDGE JOHN E. BLAHOVEC ABUSED HIS DISCRETION IN
DENYING APPELLANT'S PRE-TRIAL MOTION TO SEVER FROM
ELIZABETH FAIR RESULTING IN AN UNFAIR TRIAL?
ANSWER: YES.
It is advisable to have joint trials when the crimes charged grew out of the same
acts and much of the same evidence is necessary or applicable to both defendants.
Commonwealth v. Morales, 508 Pa. 51, 61, 494 A.2d 367, 372 (1985). In this case, the
evidence presented against the appellant and co-defendant, Elizabeth Fair (hereafter
referred to as "Fair") grew out of the same acts and much of the same evidence.
However, the court may order separate trials of defendants if it appears that any party
may be prejudiced by defendants being tried together. Pa.R.Crim.P. 583.
The Commonwealth presented Rachel Berger, M.D. and qualified her as an
expert in the field of pediatrics and child abuse. Trial Transcript page ( TI p.) 196.
Dr. Berger testified that she can't tell looking at Emily Peterman's (hereafter referred to
as "victim) injuries whether a male or female caused those injuries. TI p. 300.
1
Appellant believes a real prejudice existed at trial and was not mere speculation
since the jury found him guilty and Fair not guilty of aggravated assault on the same
evidence. Commonwealth v. Patterson, 519 Pa 190, 546 A2d 596, 599 (1988). The
jury based the verdict on the identical evidence that did not identify who committed the
assaults. Also, Fair testified on her behalf. Appellant chose not testify, for trial tactics,
because of his crimen falsi convictions. This further evidences that appellant suffered a
real prejudice with a joint trial and was denied a fair trial. Therefore, Judge Blahovec
erred in denying the appellant's pre-trial motion to sever that resulted in him receiving
an unfair trial.
II. WHETHER JUDGE RICHARD E. MCCORMICK, JR. ABUSED HIS
DISCRETION IN DENYING APPELLANT'S PRE-TRIAL MOTION TO
OBTAIN ELIZABETH FAIR'S MEDICAL RECORDS THAT DENIED HIM A
FAIR TRIAL?
ANSWER: YES.
Appellant contends he was denied a fair trial when his pre-trial Motion to Obtain
Fair's medical records regarding her post-partum depression was denied. Appellant
was not able to inquire about evidence regarding the Fair's state of mind at the time of
the alleged crimes. Appellant contends this is real prejudice at trial and was not mere
speculation since this denial impacted the evidence during a joint trial. Patterson, id
600.
2
Ill. WHETHER JUDGE MEAGAN BILIK-DEFAZIO ABUSED HER
DISCRETION IN DENYING APPELLANT A FAIR TRIAL BY ADMITIING
PREJUDICIAL HOSPITAL PHOTOGRAPHS SHOWING THE VICTIM
ATIACHED TO TUBING AND MEDICAL DEVICES WITHOUT
DISPLAYING ANY VISIBLE INJURIES OR ACCURATELY IDENTIFYING
AN INJURY?
ANSWER: YES.
Appellant contends Judge Bilik-Defazio erred and abused her discretion by
admitting hospital photographs showing the victim attached to tubing and medical
devices without displaying any visible injuries and a 30 image that was not
representative of the victim's injury. The photos and image were so highly inflammatory
that any probative value was outweighed by the prejudicial impact that it denied the
appellant a fair trial. Commonwealth v. Tyson, 119 A.3d 353 (2015).
Appellant argued that the photos were not representative of the Emilee's injuries
highly prejudicial and an attempt to shock the jury. TI pp. 214-218. Dr. Berger
testified Emilee's injuries are not shown in the photos since her head, arms, chest and
leg are covered and do not show any injuries. TT pp. 223 - 228.
3
Appellant contends Judge Bilik-Defazio erred and abused her discretion by
admitting a 30 image. Appellant objected that the 30 image was not representative of
the child's fracture since Dr. Berger testified the image reflects the victim had a fracture
on the left side of her skull while all medical reports indicate a fracture was on the right
temporal skull. TI p 237.
IV. WHETHER JUDGE BILIK-DEFAZIO ABUSED HER DISCRETION IN
DENYING APPELLANT'S CROSS EXAMINATION OF BRANDY TROUT
REGARDING ELIZABETH FAIR'S POSTPARTUM DEPRESSION?
ANSWER: YES.
During the trial, appellant attempted to have Brandy Trout, an assessment
caseworker with the Westmoreland County Children's Bureau, testify that she received
information that the Fair may have post-partum depression. TI p. 181. Appellant was
not permitted to explore this inquiry since the Court ruled the answer only called for
speculation. TI p. 184.
The question called for a yes or no answer and did not call for speculation since
the witness testified under oath at a different hearing that she received this information
that the Fair may have postpartum depression. Moreover, appellant argued that the
Fair was recommended on two occasions to get a postpartum evaluation and she never
went. TI p. 384.
4
Appellant contends this is real prejudice at trial and was not mere speculation
since this denial impacted the evidence during a joint trial. Patterson, supra. Further,
appellant contends that he was denied a fair trial by not eliciting this testimony that
impacted the jury's decision as to aggravated assault.
V. WHETHER JUDGE Bl UK-DEFAZIO ABUSED HER DISCRETION IN
PERMITTING THE TESTIMONY OF TROOPER LEONARD AS AN
EXCEPTION TO HEARSAY IN FURTHERANCE OFA CONSPIRACY
DENYING APPELLANT FAIR TRIAL?
ANSWER: YES.
Appellant contends Judge Bilik-Defazio erred and abused her discretion by
allowing the testimony of Trooper Leonard regarding appellant's statements made to
Fair in furtherance to the conspiracy exception to hearsay. A co-conspirator exception
requires the existence of a conspiracy between the declarant and the defendant and
must be demonstrated by a preponderance of the evidence; the statements must be
shown to have been made during the course of the conspiracy; and they must have
been made in furtherance of the common design. Commonwealth v. Zdra/e, 530 Pa.
313, 608 A.2d 1037 (1992).
Appellant believes Fair's statements to Trooper Leonard were her recollection of
his actions as to where the baby was sleeping and where the appellant was at the time
s
that the baby awoke on October 17, 2012. TT pp. 419-421. These statements were not
made in furtherance of a conspiracy and the admission is reversible error denying the
defendant a fair trial.
VI. WHETHER JUDGE BILIK-DEFAZIO ABUSED HER DISCRETION IN
ALLOWING THE DISPLAY OF THE BASSINET TO THE JURY TO
DEMONSTRATE IT COULD NOT HAVE CAUSED THE INJURIES WHEN
NEITHER DEFENDANT SAID IT WAS THE CAUSE?
ANSWER: YES.
Appellant contends Judge Bilik-Defazio erred and abused her discretion by
allowing the jury to be shown the bassinet to demonstrate it could not have caused the
injuries. Appellant believes the jury is receiving irrelevant and prejudicial evidence that
exceeded any probative value that denied him a fair trial. Commonwealth v. Tyson, 119
A.3d 353 (2015). Appellant never stated the bassinet caused the injuries. TT pp 511-
513.
VII. WHETHER JUDGE BILIK-DEFAZIO ABUSED HER DISCRETION NOT
ALLOWING APPELLANT TO CROSS EXAMINE CO-DEFENDANT ON
PRIOR BAD ACTS WHICH DENIED HIM A FAIR TRIAL?
ANSWER: YES.
6
The admission of evidence of prior bad acts is solely within the discretion of the
trial court, and the court's decision will not be disturbed absent an abuse of discretion.
Commonwealth v. Chmiel, 585 Pa. 547, 889 A.2d 501, 534 (2005). The alleged
incidents involving Fair did not involve convictions for crimes of dishonesty or false
statements, and did not result in convictions; thus, they were inadmissible as
prior bad acts evidence under Pa.RE. 608(b) and 609.
Appellant contends Judge Bilik-Defazio abused her discretion in denying his
attempt to introduce prior bad acts of the co-defendant. Judge Bilik-Defazio ruled that
the prior bad acts could only be admitted if the acts resulted in a conviction. However,
defendant believes that Commonwealth v. Barger, 743 A.2d 477 (1988) is controlling
and stands for the proposition that a defendant in a criminal case may introduce bad act
evidence when he contends someone else is criminally responsible for the offense.
Appellant contends Judge Bilik-Defazio abused her discretion denying his
attempt to impeach the co-defendant's character of non-violence. Appellant was
prohibited since the co-defendant's prior bad acts did not result in a conviction;
however, appellant was not able to zealously defend his case which denied him a fair
trial. Barger, id. This denial shows the prejudice that required a severed trial.
7
VIII. WHETHER JUDGE BILIK-DEFAZIO ABUSED HER DISCRETION IN
DENYING APPELLANT'S MOTION FOR JUDGMENT OF ACQUITIAL
REQUESTING THE COUNT OF CONSPIRACY BE DISMISSED FOR
LACK OF EVIDENCE?
ANSWER: YES.
Appellant contends Judge Bilik-Defazio abused her discretion in denying his
motion for judgment of acquittal made at the close of the Commonwealth's case-in-chief
requesting the count of Conspiracy to Aggravated Assault be dismissed for lack of
evidence to go to the jury. Commonwealth v. Dolfi, 483 Pa. 266, 396 A.2d 635, 627
(1979).
If the conviction is based wholly on inferences, suspicion and conjecture, it
cannot stand. Commonwealth v. Simpson, 436 Pa. 459, 260 A.2d 751 (1970).
Therefore the Conspiracy to Commit Aggravated Assault should be reversed since it
was based only on conjecture, inferences and suspicion.
IX. WHETHER THE VERDICT FOR AGGRAVATED ASSAULT AND
CONSPIRACY TO COMMIT AGGRAVATED ASSAULT WERE AGAINST
THE WEIGHT OF THE EVIDENCE?
ANSWER: YES
8
A new trial should not be granted because of a mere conflict or on the same facts
a different conclusion was reached. However, "a new trial should be awarded when the
jury's verdict is so contrary to the evidence as to shock one's sense of justice and award
of a new trial is imperative so that right may be given another opportunity to prevail.
Commonwealth v. Brown, 538 Pa. 410, 435, 648 A.2d 1177, 1189 (1994).
Appellant contends the jury verdict was against the weight of the evidence as to
shock one's sense of justice in that neither the direct nor circumstantial evidence
indicated that he committed conspiracy to commit aggravated assault to support a guilty
verdict.
X. WHETHER THE EVIDENCE WAS INSUFFICIENT TO PROVE
AGGRAVATED ASSAULT AND CONSPIRACY TO COMMIT
AGGRAVATED ASSAULT?
ANSWER: YES.
In a challenge to insufficiency of evidence the appellate court must assess the
evidence and all reasonable inferences drawn there from in the light most favorable to
the verdict winner; it must determine whether there is sufficient evidence to enable the
fact finder to find every element of the crime charged beyond as reasonable doubt.
Commonwealth v. Evans, 901 A.2d 528, 532 (2006).
9
Appellant contends the jury verdict was against the sufficiency of the evidence
to allow the fact finder to find every element of aqqravated assault or conspiracy to
commit aggravated assault. The evidence presented by the Commonwealth against the
appellant was the same presented against Fair. The evidence did not differentiate
between the co-defendants. In fact, Dr. Berger testified that she can't tell looking at
Emily Peterman's injuries whether a male or female caused those injuries. TT p. 300.
Moreover, Dr. Berger stated that she can't discriminate whether a male or female
caused the injuries to the child. TT p. 303.
The jury returned with a guilty verdict against the appellant to Aggravated
Assault. The jury acquitted Fair to the same charge. Appellant contends there is no
legal basis for the jury to return with an inconsistent guilty verdict against the appellant
and not with the co-defendant. Appellant believes the jury did not have sufficient
evidence to enable the fact finder to find aggravated assault beyond as reasonable
doubt. Evans, id at 532.
XI.WHETHER JUDGE BILIK-DEFAZIO ABUSED HER DISCRETION IN
DENYING APPELLANT'S REQUEST FOR MISTRIAL WHEN THE JURY
FOREPERSON STATED THE JURY WAS HOPELESSLY DEADLOCKED,
UNABLE TO REACH A VERDICT AND DID NOT WANT TO NEGOCIATE ANY
FURTHER?
10
ANSWER: YES.
The jury recessed for deliberations at approximately 3:35 p.m. TI p. 842. At
5:38 p.m. court reconvened with two questions and recessed again at 5:47 p.m. TI p.
849. At 9:22 p.m., proceedings reconvened at counsel were advised that the jury was
deadlocked as to at least charge. TI p. 849. The foreperson stated that the jury did not
need further instruction and there was no possibility of the jury reaching a unanimous
verdict. Also, the foreperson stated additional time would not be a benefit. TI p. 852.
The proceedings recessed at 9:37 p.m. and reconvened at 9:54 p.m. Finally, the jury
returned with a verdict at 10:32 p.m. Clearly, the jury had difficulty reaching a decision
and felt obligated to return with a verdict.
A motion for mistrial is within the discretion of the trial court. Commonwealth v.
Stafford, 749 A.2d 489, 500 (2000). A mistrial, upon a defendant's request, is required
only when an incident is of such a nature that its unavoidable effect is to deprive the
appellant of a fair and impartial trial. Commonwealth v. Lease, 703 A.2d 506, 508
(1997). Appellant contends Judge Bilik-Defazio abused her discretion and erred in not
granting his request for mistrial when the jury foreperson stated that the jury could not
reach a unanimous verdict, unable to reach a verdict and did not want to negotiate any
further. This refusal to grant a mistrial deprived the appellant a fair and impartial trial.
11
CONCLUSION
Appellant believes his verdict should be reversed and the case be remanded to
the Court of Common Pleas for a new trial since various judges abused their discretion when
making rulings that denied him a fair trial. Moreover, the testimony presented at trial was
against the weight and sufficiency of the evidence as to the crimes of aggravated assault and
conspiracy to commit aggravated assault.
WHEREFORE, appellant prays this Honorable Court to rule in his favor and grant
a new trial.
Respectfully submitted,
OFFICE OF THE PUBLIC DEFENDER
Gregory L. Cecchetti, Esquire
Assistant Public Defender
12
IN THE SUPERIOR COURT OF PENNSYLVANIA, SITIING IN PITISBURGH
COMMONWEAL TH OF PENNSYLVANIA
COMMONWEAL TH OF PENNSYLVANIA
vs. NO. 1412 WDA 2015
CHRISTOPHER LAWRENCE PETIERMAN
PROOF OF SERVICE
I hereby certify that I am this /1~ day of December, 2015, serving the foregoing
document upon the person and in the manner indicated below, which services satisfies the
requirements of Pa. R.A.P. 121 and 906:
SERVICE IN PERSON
Judith Petrush
Assistant District Attorney
Westmoreland County
Courthouse Square
Greensburg, Pennsylvania 15601
Gregory L. Cecchetti, Esquire
Attorney for Appellant
13
IN THE COURT OF CO~ON PLEAS OJ! WESTMORELAND COUNTY, PENNSYLVANIA
- CRIMINM-, DIVISION
COMMONWEALTH OF PENNSYLVANIA )
)
VS. ) NO. 600 C 2013
)
CHRISTOPHER LA WREN CE PETERMAN )
OPINION AND ORDER OF .COURT
The above-captioned case is before this Court for disposition of-Defendant's Post-Sentence Motions
filed pursuant to Pennsylvania Rules of Criminal Procedure 720(B). The defendantChristopher
Lawrence Peterman (hereinafter "Defendant") was charged with the following crimes:
Count I-Aggravated Assault, 18 Pa.C.S.A. § 2702(a)(l), 1st degree felony.
Count 2- Criminal Conspiracy -Aggravated Assault and/ or Endangering the
Welfare of Children, 18 Pa.C.S.A. § 903(a)(l), 1st degree felony.
Count 3-Endangering the Welfare of Children, 18 Pa.C.S.A. 4304(a)(l), 3rd degree
felony.
The charges stem from an investigation by Pennsylvania State Police Trooper Todd Adamski
(hereinafter "Tpr. Adamski") into the report received from Westmoreland County Children's Bureau
. .
(hereinafter "WCCB") regarding suspected child physical abuse of Defendant and Co-Defendant,
Elizabeth Mae Fair's infant, E.P. The initial report indicated that WCCB received a report from
Childline regarding an infant that was transported to Westmoreland Hospital for treatment, and because
of the injuries, the infant was then flown via helicopter from Westmoreland Hospital to ~hil~en' s
Hospital of Pittsburgh. Tpr. Adamski spoke with E.P. 's attending doctor, who informed him regarding
E.P.'s injuries. Tpr. Adamski was advised that both ofE.P.'s right and left ulna bones were broken and
that they were healing at different stages; her right femur was broken at an uncommon location, she had
multiple rib fractures, a pulmonary contusion caused from trauma, laceration of her spleen, contusions
on both lungs,' a right temporal skull fracture, and that, her sustained injuries were near fa~. After
speaking with E.P.'s doctors and her nurse, a WCCB caseworker, and both of E.P.'s parents, who
provided statements, T pr. Adamski obtained and executed a search warrant of the family's residence.
App. A
IN THE COURT OF COI\1MON PLEAS OJ! vyESTMORELAND COUNTY, PENNSYLVANIA
- CRIMINM., DMSIQN
CO:MMONWEALTH OF PENNSYLVANIA )
)
VS. ) NO. 600 C 2013
)
CHRISTOPHER LA WRENCE PETERMAN )
OPINION AND ORDER OF .COURT
The above-captioned case is before this Court for disposition of-Defendant's Post-Sentence Motions
filed pursuant to Pennsylvania Rules of Criminal Procedure 720(B). The defendant; Christopher
Lawrence Peterman (hereinafter "Defendant") was charged with the following crimes:
Count 1-Aggravated Assault, 18 Pa.C.S.A. § 2702(a)(l), 1st degree felony.
Count 2- Criminal Conspiracy -Aggravated Assault and/or Endangering the
Welfare of Children, 18 Pa.C.S.A § 903(a)(l), I" degree felony. ·
Count 3-Endangering the Welfare of Children, 18 Pa.C.S.A. 4304(a)(l), 3rd degree
felony. .
The charges stem from an investigation by Pennsylvania State Police Trooper Todd Adamski.
(hereinafter "Tpr. Adamski") into the report received from Westmoreland County Children's Bureau
..
(hereinafter "WCCB") regarding suspected child physical abuse of Defendant and Co-Defendant,
Elizabeth Mae Fair's infant, E.P. The initial report indicated that WCCB received a report from
Childline regarding fill: infant that was transported to Westmoreland Hospital for treatment, and because
of the injuries, the infant was then flown viahelicopter from Westmoreland Hospital to ~hil?Ien' s
Hospital of Pittsburgh. Tpr. Adamski spoke with E.P. 's attending doctor, who informed him regarding
E.P. 's injuries. Tpr. Adamski was advised. that both of E.P. 's right and left ulna bones were broken and
that they were healing at different stages; her right femur was broken at an uncommon location, she had
multiple rib fractures, a pulmonary contusion caused from trauma, laceration of her spleen, contusions
on both lungs,' a right temporal skull fracture, and that, her sustained injuries were near fatal. After
speaking with E.P.'s doctors and her nurse, a WCCB caseworker, and both of E.P.'s parents, who
provided statements, Tpr. Adamski obtained and executed a search warrant of the family's residence.
As a result of his investigation, Tpr. Adamski filed the above-referenced charges against Defendant.
Following
.
Defendant's arrest, Magisterial
.
District Judge Jason Buczak conducted a preliminary hearing
on February 7, 2013, and held the case for court." On April 9, 2013,_the·Common:wealth filed a Notice
to Consolidate with the case of Commonwealth v. Elizabeth Mae Fair, 587 C 2013. On July 22, 2013,_
Defendant's Motion to Sever with the aforementioned case was DENIED by Judge John E. Blahovec.
Defendant's Motion for RO.R. or Motion for Nominal Bond and Defendant's Petition for Conditions
of Bond to be Modified were DENIED by Judge Blahovec on October 25, 2013. On March 24, 2014,
Defendant's Petition for Disclosure of Mental HealthRecords and Defendant's Rule 600 Motion were
DENIED by Judge Richard E. McCormick. Jury selection commenced on December 1, 2014, and a
trial by jury was conductedon December 2, 2014 through December 5, 2°014.
On December 5, 2014, Defendant was found guilty at all counts. At that time, bond was revoked, a
Pre-Sentence Investigation was ordered, and a Sentencing Hearing was to be scheduled within ninety
(90) days.
On March 19, 2015, after a Sentencing Hearing was held, at Count 1, Defendant was sentenced to a
state correctional institution for a period of not less than nine (9) years nor more than eighteen ( 18)
years. At Count 2, Defendant was sentenced to a state correctional institution for a period of not less
than eight (8) years nor more thansixteen (16) years, concurrent to Count 1. At Count 3, Defendant
was sentenced to a state correctional institution for a period of not less than three and one half (3 ~)
years nor more than seven (7) years, concurrent to Count 1. Defendant was determined to not be RRRI
eligible and was given credit for time served. Defendant timely filed the following Post-Sentence
Motions:
I. Motion for Acquittal as to Aggravated Assault.
II. Motion for Acquittal as to Conspiracy to Commit Aggravated Assault.
ID. Motion in Arrest of Judgment.
IV. Motionfor New Trial: Weight of the Evidence.
2
FACTS
~t approximately 3:55 p.m., on October 20, 2012, Westmoreland Hospital Emergency Department
Registered Nurse Carolyn Yoder began treating three (3) month old E.P.1 when she was brought into the
emergency room by her parents, Defendant and Elizabeth Fair (hereinafter ''Fair"). N.T. December 1-5,
2014, 343-3442. Ms. Yoder testified that both parents were present and provided the information that E.P.
was sick during the day, that the parents had dorie C.P .R. on E.P. twice, that the bassinet had fapen on .
E.P., and the parents broughtE.P. to the hospital. N.T. 345. Ms. Yoder observed that E.P. was very pale.
arid dusky, that her lips were blue, she hada bluish/white tint to all of her extremities, she was cool to the
touch, her oxygen saturation wasin the 80's3 and that, although E.P. was trying to cry, it was a very weak
. . ·. . . . '
cry. N.T. 345-346. Ms. Yoder recalled that both parents stayed off in the distance from the hospital 'staff
which, based on her experience, was abnormal. N.T. 346. Admittedly though, Ms. Yoder did not know
Defendant and Fair prior to this incident and Ms. Yoder testified that it wouldn't be unusual for parents
who love a child to be in shock when their baby is very sick. N.T. 351-352. Ms. Yoder. testified that,
when the hospital staff was undressing E.P., when she noticed that E.P.'s right thigh was at least two (2) to
three (3) times more swollen than the left thigh, one of the parents remarked that E.P. 's diaper may have
been too tight N.T. 348.
Shortly after 4:09 p.m., Westmoreland Hospital Emergency Department Physician Dr. John Peoples"
joined in the treatment ofE.P. N.T._391-392. Dr. Peoples testified thatE.P. immediately presented with
. difficulty in breathing and, due to the severity of E.P. 's injuries, Dr. Peoples was only ~ble to speak to
Defendant and Fair for a short period of time.5 N.T. '392. Defendant and Fair provided a brief birth
history.Defendant relayed concern regarding a bassinet collapse four (4) days prior, and Fair advised that,
. .
on that day, four (4) days prior, E.P. had a period of twenty (20) to thirty (30) seconds where she was not
1
. .
On July 20, 2012, 30 weeks. into Defendant's pregnancy, E.P. was born premature at Westmoreland Hospital N.T.
December 1-5, 2014, p. 609-610 (To decrease the length of each citation, the notes of testimony regarding the trial will
hereafter be referred to as ''N.T."). As a result of her prematurity, E.P. 's lungs and brain were underdeveloped and thus E.P.
was transported to West Penn Hospital, where she stayed for a month and a half N.T. 610-611. E.P. was then transferred to
the Children's Home where Defendant and Peterman were able to .stay with E.P. while they learned how to use the oxygen
and monitors that E.P. required, N.T. 611. E.P. was discharged home to Defendant and Peterman from the Children's Home
on SeptemberZc, 2012, N.T. 611-612. Although E.P. was discharged home, E.P. required a pulse oximeter, which kept ·
track of her oxygen levels, and an A&B monitor, which kept track of her heart rate and breaths. N.T. 613. IfE.P.'quit
breathing or breathed too fast for a certain amount of time, or, if her heartbeat was too low or too high, the A&B monitor
would go off. N.T. 613. . ·· ·
2
The Trial in this matteroccurred from December 1-5, 2014. .
3
Ms. Yoder testified that a normal, healthy infant would have between 95-100 oxygen saturation levels. N.T. 346.
4
Dr. Peoples testified as an expert-in emergency medicine. N.T. 390.
5 .. ~-
Dr. Peoples testified that he spoke to Defendant and Peterman at the same time for maybe five (5) to ten (lO)"iinnutes. N.T.
4l'0-4li, 412.
3
breathing and they initiated CPR.6 N.T. 392. Upon initial examination, Dr. Peoples testified that, E.P.
presented with respiratory distress, a frontal hematoma over the front of the scalp, and swelling, redness,
and enlargement of the right. leg. N.T. 395-396·. X-rays
. . showed multiple rib fractures on both the . left and
right sides, a mid-shaft femur fracture, and radius and ulna fractures on both arms. N.T. 398-399. Dr.
People; testified that there was some varying ages to the radius and ulna fractures. N.T. .400.
. . .
-Based upon E.P. 's significant difficulty breathing and tbe concern for injury and trauma, Dr. Peoples
decided to intubate E. P., transfer her care to CHP, which provides a higher level of care for more severe
patients, and Children and Youth Services were consulted regarding the concern for non-accidental
trauma. N.T. 397-398, 401. Dr. Peoples explained that the femur fracture andthe rib fractures are fairly
uncommon fractures for a three-monthold child, and that, because children's bones are fairly compliant
and tend to bend, the rib fractures are uncommon even if CPR is performed. N.T. 401, 403. Additionally,
Dr. Peoples testified that it is rare to see multiple rib fractures on both sides or mid-shaft femur fractures
. . . . . . .
that are separated, which is what he saw with E.P. N.T. 403. Dr. Peoples described E.P.'s condition as
critical and opined that a single impact would not account for the injuries thathe observed in E.P. N.T.
408-409.
E.P. was intubated and flown by helicopter to CHP. N.T. 398. Dr. Rachel Berger, a pediatrician and
the Division Chief for the Division of Child Advocacy at CHP, who has dealt with thousands of child
abuse _cases in her career, testified as an expert in pediatrics and child abuse. N.T. 190-191, 196, 297. Dr.
Berger became involved in E.P. 's case when one of the emergency room physicians, who examined E.P.
. .
and. who was concerned about
. child abuse, called Dr. Berger, who was on-call for the Child Protection
Team, to consult regarding the concerns. N.T. 197, 200. After the consult, Dr. Berger looked at the
electronic medical records, reviewed the x-rays with the radiologist; and spoke to Defendant and Fair in?
conference room at the hospital. N.T. 20-0.
During the consultation with both Defendant and Fair present, Dr. Berger asked the parents to tell her
. .
the last time E.P. was her usual self and there was nothingwrong with E.P. N.T, 203. Fair told Dr. Berger
that ~.P_. was well until October 18th. N.T. 203. Fair reported that shewas home withE.P. alone when the
A&B monitor' went off. N.T. 203, Fair stated that she left the kitchen, went in the other part of the trailer,
6
Dr. Peoples testified. that Defendant and Peterman only told him of one incident in which CPR was performed on E.P. by
theparents. N.T. 395-. ·
7
Dr Berger explained that an A&B monitor is an apnea and bradycardia monitor, that alarms if the heart stops or if someone.
stops breathing for a certain amount of time, so the parents can know that something is wrong and they can stimulate the
baby. N.T. 203-204. E.P. was premature, therefore her respiratory system wasn't mature and thus, E.P. was sent home with
the monitor. N.T. 203.
4
which was only a few feet away, and stimulated E.P. by rubbing her chest and pinching her toe, but E.P.
did not respond. N.t. 204. Fair then gave E.P. CPR and, after two (2) 9~ three (3) breaths, E.P. spit up
. .
some formula, began breathing, and, because E.P. seemed fine, fair took no further action. N.T. 204-205.
Fair reported that Defendant came home from work a few hours later and, because Defendant and Fair
discussed that E.P. was okay, neither felt medical treatment was necessary. N.T:205.
Fair advisedDr, Berger that E.P. was fine on October .19th, but, in the l~te afternoon on October 20th,
. . . .
E.P.'s monitor went off right after Defendant fed E.P. N.T. 205. Both Defendant and Fair walked over to
E.P. and when they saw that her lips were blue, her eyes were closed, and E.P. was not responsive,
Defendant pinchedE.P.'s toe and gave her CPR. N.T. 205-206. Defendant said that E.P.jerked, began to
cry, and then seemed to be fine. N.T. 206. Neither-parent did anything further until Fair, while putting
E.P.'s sleeper on, noticed E.P.'s swollen leg. N.T. 206. Fair said the swollen leg wasn't bothering E.P.,
. .
but the parents called the pediatrician who told them to go to the emergency room, which they did. N.T.
206 ..
Although neither Defendant nor Fair initially brought up the issue of the bassinet falling, when Dr. .
Berger asked them about any other trauma or the specific injuries, Defendant brought up the bassinet ·
issue. N.T. 206. Defendant reported that on October 17th, which was the day before the first event that
Fair reported, Defendant heard E.P. whimpering around 3 :30 in the morning. N.T. 206. Defendant said
that he immediately woke up and noticed that the bassinet8 had fallen fromitself N.T. 206-207.
Defendant stated.that the screws broke and the bassinet fell onto the oxygen tank that was underneath the
bassinet carrier and on top of the cloth shelf. N.T. 207. .Defendant explained that E.P. did not fall out of
the bassinet carrier, but that the bassinet carrier had fallen and kind of turned. N.T. 207. Theyhad the
actual bassinet with them and Dr.Berger testified that the "fall distance" would have been about eight (8) .
inches.9 N.T. 207, 510. Defendant reported that E.P. was awake and didn't seem hurt so they took the
- bassinet carrier out and put it on the floor. N.T. 2Q7. Neither parent sought medical attention for E.P. after
that incident. N.T. 207. ·
8
The bassinet was admitted into evidence without objectionN'I'. p. 498. The bassinet consists of two separate apparatus, the
bassinet carrier, within which the child would be placed, and the metal frame. N.T.-p. 499. When extended, the metal frame
looks like a V-sbape, but when not extended, it folds up similar to an accordion. N.T. 502. When extended to the proper level,
there are two plastic clips that clip onto the metal frame, one on each side, to secure the bassinet carrier to the frame. N. T. 502.
There is also a cloth-type shelf underneath the bassinet on the frame which is where E.P . 's oxygen tank was located. N.T. 501.
9
Tpr. Adamski testified that the "fall distance" was between eight (8) to ten (10) inches. N.T: 510.
5
Dr. Berger physically examined RP. in the pediatric intensive care unit on October 22, 2012. N.T.
213, 222. Upon examination, E.P. was sedated, intubated on 100 ·perce~t oxygen, 10 on cardiac support, 11
~he required a blood transfusi~n, and was on about as much support as someone can possibly be on
. - . . . -
without being on ECMO. N.T. 226, 271. Dr. Berger testified that, without the pressor support or the
external oxygen, E.P. would have stopped breathing and died. N.T. 226. E.P. was· so sick and her illness
. .
so severe that Dr. Berger was unable to do some of the things that she would normally do to examine an
. .
infant.such as lookingin the mouth and.turrring the infant over to check the back and skin. N.T. 21-3. In
addition to the necessary support, ·E.P. presented with multiple :fractures at different stages of healing, _
including more than twenty (20) rib :fractures, a metaphyseal femur fracture12, an acute transverse femur
:fracture in the· right leg, a very large, fairly acute, fracture of theparietal bon; ~ the skull, theright arm
had an acute13 .radius fracture, and the le.ft arm had both subacute14 radius and ulna fractures. N.T. 225,
227, 231, 248, 272, 3 99. E.P. also had perisplenic and retro peritoneal hematoma, the blood in the back,.
and possible splenic laceration, four small subdural hemorrhage and extradural hematoma, a single retina
hemorrhage in her eye, and five contusions or bruising at the base of the lungs. N.T.-240, 246, 266-267, ·
270, 272, 273.
Throughout the family; medical, and social history that both parents provided to Dr. Berger, neither
parent provided any significant history which would account for or provide an explanation for E.P. 's
inj~es. N.T. 203-213. Dr. Berger testified that the hospital tested E.P. for oxygenesis imperfecta, which
is a rare disease that causes children's bones to :fracture more easily, but E.P. tested negative for that
genetic disease. N .T. 229-230. Additionally, the hospital conducted. multiple lab tests which could
indicate another reason for E.P. 's injuries, but all of the lab reports that Dr. Berger reviewed did not
provide an explanation for the trauma tliat E.P. sustained. N.T. 230. Dr. Berger explained that, based on
. .
her evaluation, E.P. looked like a child that had been injured but not a child that had an underlying
medical problem. N.T. ·230-231.
10
Dr. Berger testified that, normally, the air is 21 percent oxygen and the most that can be given to someone is 100 percent
oxygen, which is what E.P. was on. N.T. 226. ·Dr.Berger further testified that they don't normally like to give 100 percent
oxygen because it is toxic, particularly for infants, but E.P. needed that level of oxygen because E.P. wasn't breathing well at
. all. N.T. 226.
· u Dr. Berger testified that E.P.;s heart wasn't pumping properly so E.P .. was on pressers (epinephrine or norepinephrine) almost
constantly to keepthe heart pumping in order to support it N.T. 226. · ·
12
Dr. Berger explained that this fracture is essentially the growth plate on the femur being ripped off: N.T. 251-252. .
13
. "Acute" means that the injury is new and you don't see healing. N.T. 248. · ·
14
"Subacute" means that there is some evidence of healing which means that it is probably more than three (3) days old, but
probably less than seven (7) days old. N.T. 249.
6
Dr. B~rger explained that more than twenty (20) rib fractures'? were healing in at least thre~ different
stages. N.T. 267-268. Dr. Berger testified that, the metaphyseal femur fracture has great significance
. .
because there is no accidental way to cause that typeof injm:Y. N.T. 252. Other than a breeched baby
where the doctor yanks the baby out, the only other known mechanism that can cause that type 'of injury is
. . ..
child abuse. N.T. 252, Dr. Berger also explained that the metaphyseal femur fracture would have had to
occur before the acute transverse femur fracture, but not at the same time. N.T. 256-258. Lastly, Dr.
Berger explained that a transverse fracture is incredibly. painful and one of the most painful fractures and,
even changing a diaper on a baby with that kindof fracture, would be incredibly uncomfortable. N.T. 258.
Regarding the posterior rib fractures, Dr. Berger explained that those types of rib fractures are almost only
from a squeezing and twisting, which are almost path~logic of abuse. N.T. 276-277. Additionally, Dr.
Berger explained that you almost never get rib fractures from CPR, even in children and babies, regardless ·
of whether the ·cPR is being performed by a professional or lay person. N.T. 277.
When questioned by Dr. Berger regarding any other possible caretakers for E.P.,, both parents
reiterated that they were the only caretakers for E.P. N.T. 212. Ultimately, based upon all of the
information that Dr. Berger reviewed, her examination of E.P ., the history that she obtained; and all of the
radiographic images that she reviewed, including the follow-up informa~on, Dr. Berger opined that E.P. 's
constellation of injuries were the result of child physical abuse which occurred on more than one occasion,
that the injuries were life threatening, that E.P. did not have any underlying medical condition which
'would cause the injuries, that, although E.P. was premature, E.P. 's bones may be slightlyweaker than a
. .
full-term infant, but that would not account for the injuries and would require significant force even in a
premature baby. N.T. 273.
Dr. Berger also opined that the history of the fall from the bassinet could have accounted for one of the
injuries, but that it did not account for all of the injuries, and that, E.P. was in significant pain at the time
the fractures oc_curred. N.T. 273. Dr. Berger testified that it is not possi~le for an adult who is caring for
her when both the bones in E.P. 's forearms
. were fractured . to not know something was wrong and that it's
. .
not possible that E.P. was not in pain when the femur was fractured because it would be extremely painful
when it occurred and afterwards. N.T. 273. Dr. Berger stated that the lack of seeking medical attention for
E.P. 's injuries, as well as for the event in which Defendant gave chest compressions and rescue breaths,
.constitutes medical neglect. N.T. 273. Dr. Berger also explained that, after E.P. was in foster care, Dr.
Berger did see her at the hospital and all of the fractures had healed and E.P. had no additional fractures at
15
Some of the nb fractures wer.e lateral, anterior, and some were posterior. N.T. 262.
7
that time. N.T. 281. Dr. Berger concluded that there would be no other explanation ofE.P.'s injuries other
than her diagnosis of child _abuse. N. T. 282.
r
The WCCB became involved in this case when the on-call caseworker Amie Skolak (hereinafter "Ms.
. .
Skolak") received a referral from Childl.ine, the child abuse registry in Pennsylvania, regarding E.P. at
. .
approximat~ly 7:~8 p.m. on October 20, 2012. N.T. 131-132, 142.· Atapproximately 10:14 p.m., after
speaking to asocial worker at CHP by telephone, M~. Skolak testified that she spoke to Defendant by
telephone. N.T. 133. Defendant provided identifying information and, after Ms. Skolak made Defendant
aware of the injuries reported in the CbildLine referral, Defendant reported that E.P.'s injuries were likely
. ·.
from a bassinet fall. N.T._135, 147-149. Defendant reported t~_Ms. Skolak that E.P. was in an accordion
style b~sinet whichutilizes two pins to hold the unit together. N.T. .135. Defendant statedthat when one
of the pins broke, the bassinet? witli E.P. in it, fell onto a canopy below the bassinet which housed E.P. 's
oxygen tank. N.T. 135. When that occurred, E.P. was fussing, but had no visible marks, no swelling, and
E.P. continued to eat well. N.T. 135.
Otherwise, Defendant reported an incident which occurred approximately three days prior where, after
feedingE.P., E.P. started to.burp up, then she quit breathing, and Fair performed CPR. N.T. 135. Ms.
Skolak advised Defendant that she was required to see E.P. at the hospital and to meet with him and Fair
within twenty-four (24) hours of the report. N.T. 136. Although Defendant gave M$. Skolak a time that he
and Fair would be at CHP the following day.when Ms. Skolak arrived at CHP on October 21, 2014,
'within time frame that Defendant said they would be at the hospital, Defendant and Fair werenot there.
~.T. 136-139. Ms. Skolak was not able to meet with Defendant and Fair in-person and, thereafter, the
case was transferred to.WCCB assessment caseworker Brandy Trout (hereinafter "Ms. Trout"). N.T. 138-
140. · ·
Ms. Trout testified that she was assigned the case to conduct the investigation regarding the Childl.ine · ·
. . .
referral on October 22, 2012 and th.at she made arrangements to go to E.P.'s home. N.T. 152. Ms. Trout,
along with a couple state troopers, met with Defendant and Fair in their home in New Alexandria,
. Pennyslvania, on October 23, 2012.16 N.T. 153-154._ Ms. Trout testified-that the home; which is a trailer,
is located within walking distance to multiple residences, one of which is Defendant's father's residence.
. .
N.T. 153. While Ms. Trout was in the home, Defendant reported to her that on October .17, 2012, while
Fair was
.
sleeping in the ..bedroom, Defendant was sleeping in the living room with E.P.. in the bassinet in ·· ·
the same room. N.T. 156. Around 3:00 or 4:00 a.m., Defendant awoke and E.P. was making a
16
Both Defendant and Peterman voluntarily spoke with Ms. Trout and the troopers. N.T. 166.
8
whimpering noise, but not crying. N.T. 156. Defendant reported that he checked E.P.'s apnea monitor,
. .
but it was not going off. N:T. 156. After seeing that the bassinet was resting on its right side, with the left
end still connected to the frame and the other side down, and that the two pins from the frame were bent,
the position of which Defendant demonstrated for Ms. Trout, Defendant stated that he picked up E.P., who
. . .
· was fussing and whimpering.from the bassinet. N.T. 156-157. Defendant told Ms. Trout that E.P. calmed
instantly as Defendant rubbed E.P.'s back and that E.P. looked fine with no marks. N.T. 157. Defendant
. .
reported that he then placed E.P. back in the bassinet carrier and moved it to the couch because that was
where Defendant was sleeping for the night. N.T. 157.
While Defendant was in the living roo_m assembling the bassinet and equipment for the troopers as_
they were photographing things, Ms. Trout and Tpr. Adamski spoke with F~ in the parents' bedroom.
N.T. 157-158. Fair reported to Ms. Trout that Fair remembered wakingup in bed in their bedroom on
October 17, 2012, around 11:00 p.m., with Defendant next to her and E.P. in the bassinet on the wooden
chair in front of the-dresser. N.T. 158-159, 166. Fair stated that after she put a bottle in the microwave,
Fair changed E.P.'s diaper and did not notice anything wrong withE.P. on October 17, 2012. N.T. 159.
Fair told Ms. Trout that, on October 18, 2012~ around 7:30 p.m., when Fair was in the kitchen, E.P: 's
apnea monitor went off. N.T. 159, 167, 178. Fair ran back, flipped on the lights and saw that E.P.'s lips
were blue. N.T. 167. Fair put her hand onE.P.'s chest and after Fair's attempts to rockE.P. awake
showed no results, Fair squeezed E.P.'s.toes as Fair had been taught to do at the hospital. N.T. 167. After
E.P. still did not respond and with her head hung back and lifeless, Fair took E.P.'s clothes and monitor
off and performed CPR on E.P. N.T. 159, 167. E.P. then burped up some formula and, to Fair, E.P.
seemed okay. N.T. 167. Fair told Ms. Trout that Defendant was not hoine on that day, and that, because
Fair did not have a phone, Fair did not call Defendant. N.T. 159,169.
. .
. Fair reported that E.P. was fine on October 19th, but on October 20, 2012, around 2:00 or 3:00 p.m.,
afterjust being fed and while in the bassinet, E.P.'s alarm went off. N.T: 159: Fair stated that E.P. was·
unresponsive so Defendant put E.P. on the bed and performed CPR. N.T. 159. When Ms. Trout asked
Fair when Fair realized that something was wrong with E.P., Fair told Ms. Trout that, while she was
dressing E:P ., Fair noticed that E.P..' s right leg was swollen, so after calling _the pediatrician, they were
told to take E.P. to the hospital. N.T. J:-59.
When Ms. Trout questioned Defendant and Fair regarding E.P. not being taken to the hospital on the
18th after Fair had performed CPR on E.P., Defendant and Fair told ~s. Tro_u~ that, together, they made
the decision to not seek medical !reatment for or to take E.P. to the hospital because E.P. had no noticeable
9
injuries. N.T. 160-161. When questioned regarding any additional caregivers other than Defendant and
· Fair, for E.P., Fair told Ms. Trout that although a paternal aunt was around E.P. while theparents did
..
laundry with the paternal aunt, paternal aunt was never alone with E.P. N.T. 160.
Tpr. Adamski was the primary State Trooper investigating this case. N.T. 469. After receiving a call
from WCCB. caseworker Amie Skolak, Tpr. Adamski traveled to CHP to begin the investigation. N.T:
47q. Tpr. Adamski spoke to all of the treating physicians, the WCCB ·caseworkers involved in the case,
· and Defendant and Fair. N.T. 470-477. The first time Defendant spoke to Tpr. Adamski wason October
21, 2012. N.T. 477._ Defendant reported that he worked at his father's garage at the trailer park where Fair
. -
and De~endant's trailer was located. N.t .. 476. During that interview, Defendant told Tpr. Adamski that,
at the time of the October 1 ?111 incident, Defeiidant was sleeping on a couch in the living room with E.P. in .
her bassinet, while Fair slept in their bedroom. N.T. 477-478. When Defendant woke up because E.P. was
fussing and he saw that the bassinet had fallen, Defendant woke Fair up and they both checked 'on her
before. they went back to bed. N.T. 478-479. Defendant reported that the following day, on October is",
when he arrived home around 10:00 p.m., Fair was upset and reported to Defendant that the monitor went
off and E.P -. was not breathing. N.T. 480. Defendant reported that Fair told him that Fair gave E.P. CPR
and E.P. became responsive again. N.T. 480. Defendant stated that the following day, on October 19th,
E.P .. was fine. N.T. 480: Defend~t told Tpr. Adamski that; on Octobe;20th, E.P.'s alarm went off around
1 :30 p.m. to 2:00 p.m. and, during that incident, Defendant performed CPR on E.P. before they called the
pediatrician and ultimately transported E.P. to Westmoreland Hospital. N.T. 481-482.
Tpr. Adamski testified that Defendant said that only Defendant and Fair took care of E.P. N.T. 486.
After that, Tpr. Adamski interviewed Fair. N.T. 488. Fair stated-that she was a stay-at-home mom. N.T.
·488. Regarding the October 17th incident, Fair reported that she wassleeping in th~ bedroom and
Defendant and E.P. were sleeping in the living room. N .T. 489. "Fair stated that Defendant told her, in the
morning, that the bassinet broke and fell over, that Defendant checked on E.P., and E.P. seemed fine. N.T.
4?~- Fair's !eport regarding October 18th, 19th, and 20th was essentially consistent with previous reports.
N.T. 489-491. Fair told Tpr.Adamski that she did not mishandle E.P., even accidentally. N.T. 491. Fair
also reported that she and Defendant were the only... caregivers for E.P. N.T. 492_.
.
After
-
Fair-and Defendant.
provided conflicting stories regarding October 17th, Tpr. Adamski spoke to Defendant again and made him
aware of the conflict; however, Defendant did not respond or correct Tpr. Adamski. N.T. 492-493.
· Tpr. Adamski stated that Defendant and Fair's trailer measured approximately 52 by 14 feet wide, and
that, the trailer was thinly insulated. N.T. 516 .. When Tpr. Adamski was present during the interview with
10· · .
Defendant and Fair at the residence and the other state troopers were there, Tpr. Adamski did not have a
problem hearing people in other parts of the trailer. N.T. 516.
PSP Corporal David Leonard (hereinafter "Cpl. Leonard") testified that he assisted Tpr. Adamski with
suspect . interviews related to this case. N.T. 416. Cpl.. Leonard stated that he interviewed Fair on October
30, 2012 at the PSP Kiski barracks. N.T. 417. When he questioned Fair regarding whether she had done
anything even accidentally to contribute to E:~· 's injuries, Fair stated ~at she did not N.T. 41?. Cpl.
Leonard testified that there were numerous inconsistencies in Defendant's rendition of the events which
could have caused E.P. 's injuries. N. T. 417-418. Importantly, when Cpl. Leonard asked Fair if there were
. .
_any other incidents which could have caused E.P. 's injuries, Fair reported that there was a second bassinet
collapse sometime between October 1st ~d Ii\ but before October 17th. ~-T. 423. Fair re~orted that the
incident occurred while Fair was in the shower and Defendant was with E.P. N.T. 423. That was
significant because it was the first ti.me anyone reported a second bassinet collapse.
Cpl. Leonard testified that he also assisted Tpr. Adamski with interviewing Defendant on November 5,
2012 at PSP Kiski barracks. N.T. 423. When he asked Defendant regarding whether he had done anything
. .
even accidentally to contribute to E.P. 's injuries, Defendant stated that he did not. N.T. 424.- When
Defendant described the bassinet incident on the 17th, Defendant told Cpl. Leonard that, after the bassinet
fell, E.P. was facing downward, lying on the oxygen tank. N.T. 425. Additionally, Defendant stated that
he took E.P. into the parents' bedroom where Fair was sleeping, placed E.P. in the bassinet, and they went
to sleep. N.T. 425. Cpl. Leonard noted that Defendant's description was inconsistent with prior
statements that he had provided. Defendant also, for the first time, told Cpl. Leonard about a second
bassinet collapse in which he claimed he caught the bassinet before it completely fell and E.P. did not fall
from it, and about the parents having a black lab who gets excited when E,P. 's alarm goes off. N.T. 426-
427.-
Dr. Dwayne Shuhart, a physician at Children's Community Pediatrics in Blairsville, Pennsylvania,
testified as an expert in. pediatrics. N.T. 317-320. Dr: Shuhart
.
examined E.P. on several occasions for
check-ups at the Blairsville office. N.T. 322. Defendant and Fair took E.P. to her first visit with Dr. .
.Shuhart on September 25, 2012. N.T. 322-323. At that visit, Dr. Shuhart conducted a head-to-toe
assessment of E.P ., which included feeling the belly, listening to the lungs, manipulation of the hips by
· bending the legs out and back a couple times and touching the head to check the fontanel and anterior
fontanel. N.T. 324-325. Other than being a normal, newborn pre-term babywho had some bradycardia,
Dr. Shuhart testified that E.P. was within normal limits and the assessment was unremarkable. N. T. 326.
11
Defendant and Fair took E.P. to her second visit, a scheduled follow-up, with Dr. Shuhart on October
9, 2012. N.T. 326-327. Dr. Shuhart testified that he conducted the same head-to-toeassessrnent ofE.P. ·
which required manipulation ~-fE.P. 's bodyin the same manner as the first visit. N.T. 328. Again, the .
. . .
assessment resulted in E.P. being within normal limits. N.T. 328. Dr. Sbuhart testified that, based upon .
what oc~urs during the examinations, and how E.P. appeared during the exams on September 25th and
October 9th, Dr. Sh{iliart opined that it was not likely that E.P. had over twenty (2q) rib fractures, a flail
chest, a skull fracture, or a femur fracture whenhe examined her on either date. N.T. 331-332. Dr.
Shuhart explained that the fractured ribs would be quite painful and, based upon the movements ·
conducted during the examination, ~e would e~pect the baby to be crying, fussing, and uncomfortable.
N:T. 331. Also, based upon the manipulation that is done during the head and leg examination, the doctor
. . .
opined that he would have picked up on any fractures. N.T. 332. pr. Shuhart did not see, or note in the
report, any swelling or bruising at all during either visit. N.T. 333.
On Saturday, October 20, 2012, Defendant called the office at 2:44 p.m., but because the call occurred
on the weekend, the call was handled by an answering service. N.T. 329. Dr. Shuhart testified that the
information received from the call was something about the leg and that the apnea monitor went off twice,
once two to three days ago. and then again a few minutes ago for low heart rate.and not breathing. N.T.
· 329-330. Additionally, it was reported thatafter checking, mom did CPR both times, E.P. vomited a
large amount and then started to breathe, with slight stynosis of lips. N.T. 3~0. Dr. Shuhart stated that the
-
triage person recommended that E.P. go immediately to the emergency room and, although an ambulance
was offered, the family said they had an ETA of fifteen (15) to twenty (20) minutes to the hospital so they
would drive the baby there .. N.T. 330.
Thomas Stivason, E.P.'s foster father, testified regarding E.P.'s continuing problems. N.T. 456. Mr.
Stivason and his wife, Robin, have had custody ofE.P. since she was discharged from CHP on October
31, 2012. N .T. 456. Although E.P. has had no further fractures since being in their custody, Mr. Stivason
testified that E.P. is doing good, but continues to have trouble with walking/running and that she falls
often. N.T. 457. Although E.P. is two years old, she can't really run and she catches colds quite often,
which results in the colds going straight to bronchitis. N.T. 458.
Meagan White, Fair's cousin, testified that Fair's reputation in the community is for being an honest,
peaceful, non-violent, and very well liked person: N.T. 587-588.
Sue London, who has known Fair for Fair's entire life, testified that Fair .is an honest, peaceful, non=
violent person, and very well respected in the community. N.T. 589-591.
12
Fair.testified on her own behalf. N.T. 607. Fair, who is twenty-three (23) years old, testified that she
first met Defendant in October of 2011, that they started residing together sometime thereafter, and that,
she became pregnant with E.P. in December of 2011. Fair testified regarding :E.P. 's developmental
history, about what the parents had learned while E.P . .was at The Chil23 A.3d 544, 559-560 (Pa. Super. 2011) (en bane) citing Commonwealth v.
Hutchinson, 947 A.2d_ 800, 805-06 (Pa. Super. 2008), appeal denied, 602 Pa. 663, 980 A.2d 606(2009). As· charged in this case, a person is guilty of aggravated assault if he or she attempts to cause
serious bodily injury to another, or causes such injury intentionally, .knowingly or recklessly under
circumstances manifesting extreme indifference to the value of human life. 18 Pa.C.S.A. 2702(a)(l).
Serious bodily injury is bodily injury which .creates a substantial risk of death or which causes serious,
permanent disfigurement or protracted loss or impairment of thefunction of any bodily member or
organ. 18 Pa. C.S .A. § 2602. A person acts intentionally' with respect to serious bodily injury when _it is
~s or her conscious object or purpose to cause such injury. 18 Pa.C.S.A. § 302(b)(l). A person acts
knowingly with respect to serious bodily injury when he or she is aware that it is practically certain that
bis or her conduct will cause such a.result. 18 Pa.C.S.A. § 302(b)(2). A person acts recklessly with
respect to serious bodily "injury when he or she acts with malice. Malice exists where there is
. -
wickedness of disposition, hardness of heart, cruelty, recklessness of consequences, and a mind
15 .
regardless of social duty, although a particular person may notbe intended to be injured. Where malice
. .
. is based-on reckless disregard of consequences, it is not sufficient to show mere recklessness, it must be
. .
shown that the defendant consciously disregarded unjustified and extremely high risk that his and/or
her actions might cause death or serious bodily injury. 18 Pa:C.SA. § 302(b)(3); Pa. s~.r;i (Crim) §
15.2702B.
Although Defendant argues ·that the jury's verdict at Count 1 makes no sense based upon the
. . .
evidence presented at trial, this Court is not persuaded. 1bis Court finds that there was. sufficient
evidence for the jury to determine that Defendant co~tted Aggravated Assault upon E.P. Both
. Defendant and Fair always maintained that they were E.P.'s only caretakers. Viewing the evidence in
- .
the light most favorable to the Commonwealth, E.P. was a healthy and fracture-free infant when she
left The Children's Home and was placed exclusively in Defendant and Fair's care. There was no
family medical history that would account for E.P.'s near-fatal injuries and;E.P .. did not suffer from
any genetic disease which would account for the severe injuries: Fair testified that both parents
received training at The Children's Home regarding E.P. 's medical needs, how to perform CPR should
it be necessary, and on how to operate the medical apparatus that E.P. would necessitate upon
discharged.
Additionally, although Defendant and Fair consistently denied accidentally or intentionally injuring
-
E.P., Dr. Berger testified that, based upon her experience in handling over a thousand child abuse cases,
and upon her examination of all the records and her physical assessment of ~.P.: E.P.'s injuries were the
result of child abuse that occurred on more than one occasion and that the injuries were extremely painful
. .
and life threatening. Dr. Berger explained that E.P. 's multiple rib fractures could not have been the result
of the CPR that was performed on E.P. Dr. Berger also opined that the history of the fall from the bassinet
co~d have accounted for one of the injuries, but that it did not account for all of the injuries, and that E.P ..
was_ in significant ~ain.at the time the fractures occurred. As Dr. Berger explained, it would not have been
possible for Defendant and Fair to be unaware that E.P. 's forearms and femur were fractured or that E.P.
was in a tremendo~ amount of pain,
a
The Comm~nwealth w3:5 not required to present an eyewitness to the _abuse or confession from the
abuser, nor was it required of Dr. Berger to identify whether the 'abuse was perpetrated by a male or
female. The Coinmonwealth
. . .
did prove that the . only caretakers for. E.P. were Defendant. and Fair, that
.
Defendant and Fair were communicating on multiple occasions regarding whether to take E.P. to seek
additional medical treatment, and that E.P. suffered near-fatal injuries of varying ages, that were,
16
according to Dr. Berger, a result of child abuse. Clearly, from the jury's verdict; the jury believed that the
Commonwealth met itsburden and that Defendant inflicted injuries upon E.P. which constituted serious
bodily injury.
Finally, the evidence as to each defendant was not identical. The jury was free to consider the fact that'.
Defendant's explanation as to how the injuries may have occurred, and the circumstances·~urr_?unding the
events, changed over time. In addition, the jury could have considered Defendant's admission to the
police that he had lied to make himself look better.
Based upon the evidence presented, this Court finds no error in the jury's verdict or in the sufficiency
!'· ...
of evidence upon which the jury's verdict is based.
II. Motion for Acquittal as to Conspiracy to Commit Aggravated Assault
Defendant challenges the sufficiency of the evidence to prove Defendant committed th~ crime of
Criminal Conspiracy to Comniit Aggravated Assault. Defendant does not challenge the sufficiency of
the evidence to prove that Defendant committed the crime of Criminal Conspiracy to Commit
Endangering the Welfare of Children. Defendant again alleges that the verdict in this case was
·-·
inconsistent. He points out that Fair never implicated Defendant in her interviews and that Dr. Berger
. .
could not state whether a male or a female inflicted the injuries on E.P. N.T. 300.
In pertinent part, the Commonwealth charged that Defendant, with the intent of promoting or
facilitating the crime of Aggravated Assault against E.P., conspired and agreed with Fair, that they or
one or more of them would engage in conduct constituting such crime, and in furtherance thereof, one
. ·.
or more of them did commit the overt act of inflicting
-~ .. .trauma upon E.P .. In Pennsylvania,
.
a person is
guilty of conspiracy with another person to commit a crime if with the intent of promoting or
facilitating its commission he or she agrees with such other person or that they or one or more of them
will engage in conduct which constitutes such crime or an attempt or solicitation to commit such crime.
18 Pa._C.S.A. § ~03(a)(l). Aggravated Assault was defined in the above-discussed issue.
Defendant argues that there was no evidence, direct or circumstantial, that Defendant conspired
with Fair to committhe crimeof Aggravated Assault on E.P., that there.was no evidence to prove an
agreement to commit Aggravated Assault, and that there was no evidence to prove an overt act
committed by either parent in furtherance of the conspiracy. Defendant argues that the evidence as to
each defendant was identical other than the fact that the co-defendant, Fair, testified and Defendant did
not.
17
In Commonwealth v. Johnson, the Pennsylvania Superior Court explained:
- ~To sustain a conviction for criminal conspiracy, the Commonwealth must establish that
.the defendant (1) entered an agreement to commit or aid in an unlawful act with another
person or persons, ·(2) with a shared criminal intent and, (3) an overt act was done in ·
furtherance of the conspiracy. ·
The essence of a criminal conspiracy is a common understanding, no matter how it
a
came into being, that particular criminal objective be accomplished. Commonwealth
v. Keefer, 487 A.2d 915, 918 (Pa. Super. 1985). Therefore, a conviction for conspiracy
requires proof of the existence of a shared criminal intent. Commonwealth v. Sattazahn,
631 A.2d 597, 602 (Pa. Super. 1993) appeal denied, 652 A.2d 293 (Pa. 1994).
-,
An explicit .or formal agreement to commit crimes can seldom, if ever, be proved and it
need not be, for proof of a criminal partnership is almost invariably extracted from the
circumstances that attend its activities. Commonwealth v. Kennedy, 499 Pa. 389, 395,
453 A.2d 927, 929-930 (Pa. 1982). Thus, a conspiracy may be inferred where it is
demonstrated that the relation, conduct, or circumstances of the parties, and the overt
acts of the co-conspirators sufficiently prove the formation of a criminal confederation.
Commonwealth v. Woodward, 614 A.2d 239, 243 (Pa. Super. 1992).
The conduct of the parties and the circumstances surrounding their conduct may create
'a web of evidence' linking the accused to the alleged conspiracy beyond a reasonable
doubt. Commonwealth v. McKeever, 689 A.2d 272, 274 (Pa. Super. 1997). Even if the
conspirator did not act as a principal in committing the underlying crime, he is still ·
criminallyliable for the actions of his co-conspiratorstaken in furtherance of the
conspiracy. Commonwealth v. Soto, 693 A.2d 226, 229-230 (Pa. Super. 1997), appeal
denied, 705 A.2d.1308 (Pa. 1997). ·
Commonwealth v. Johnson, 719 A.2d 778, 784-85 (Pa Super. 1998) (en bane). The standard for
sufficiency of the evidence was explained in the first issue.
Although Defendant argues to the contrary, this Court finds that there was sufficient evidence that
Defendant entered into an agreement with Fair to commit Aggravated Assault on E.P., and that, one or
both of them, committed the overt act of inflicting forcible trauma uponE.P. Both Defendantand Fair
always maintained that they were E.P. 's only caretakers. Viewing the evidence in the light most
favorable to the Commonwealth, E.P .. was a healthy .and fracture-free infant when she le.ft The
. Children's Home and was placed exclusively in Defendant and Fair's care. There was no family
medic~ history that would account.for E.P .'s near-fatal injuries and, E.P. did not suffer from any
genetic disease which would account for the severe injuries. Fair testified that both parents received
training at The. Children's Home regarding E.P.'s medical needs, how to perform CPR should it-be
necessary, and on how to operate the medical apparatus that E.P. would necessitate upon discharge.
18
Defendant and Fair both stated that they were aware that E.P. was having multiple "medical episodes,"
during which, neither parent was able. to stimulate E.P. bick to·consciousness without performing CPR,
from October 17th through October 20th. Defendant and Fair each told the other about every medical
episode that occurred, but together, they decided not to seek-medical care for their infant daughter.
Additionally, although Defendant and Fair consistently denied accidentally or intentionallyinjuring
. .
E.P., Dr. Berger testified that, based upon her experience in handling over a thousand child abuse cases,
and upon her examination of all the records and her physical assessment ofE.P., E.P, 's injuries were the
result of child abuse that occurred on more than one occasion and that the injuries were extremely painful
and life threatening .. Dr. Berger: explained that E_.P. 's multiple ribfractures could not have been the result-
of the CPR that was performed on E.P. Dr. Berger also opined that the-history of the fall from the bassinet
could have accounted for one of the injuries, but that it did not account for all of the injuries, and that, E.P.
was in significant pain at the time the fractures occurred. As Dr. Berger explained, it would not have been
possible for
.
Defendant and Fair
.
to be unaware that E.P. 's forearms and femur were fractured or that E.P.
was in a tremendous amount of pain. .
The Commonwealth was not required to prove a spoken agreement between Defendant and Fair for
purposes of a conspiracy, ·but the Commonwealth did prove that the only caretakers for E.P. were
Defendant and Farr, that Defendant and Fair were communicating on multiple occasions regarding
whether to take E.P. to seek additional medical treatment, and that E.P. suffered near-fatal injuries of
varying ages, that were, according to Dr. Berger, a result of child abuse. Further, in her closing argument,
the Assistant District Attorney offered overt agreements between the defendants as well as the
circumstantial evidence of the conspiracy. The evidence presented and all reasonable inferences arising
from the evidence were sufficient to prove guilt beyond a reasonable doubt _Commonwealth v. Madison
462 A.2d 228 (Pa. 1983). Clearly, from the jury's verdict, the jury believed that the Commonwealth met
its burden and that Defendant. conspired with Fair to commit the Aggravated Assault.
. Finally, there was brief testimony from Dr. Berger regardin_g general. statistics of child abuse. The
. jurors were free to give whatever weight to that testimony as they felt it warranted. Based upon the
evidence presented, this Court finds ~o error in the jury's verdict or in the sufficiency of evidence upon
which the jury's verdict is based.
Defendant also argues that this Court's charge regarding Count 2: Criminal Conspiracy was
misleading. This Court is not persuaded by Defendant's argument. Thi.s Court did read the .standard
19
jury instruction regarding criminal conspiracy and, in addition, this Court explained the Jury Verdict
Form. N.T. 836. This Court instructed the jury as follows: .
. .
So, let me explain the verdict slips.I] Count 2, guilty or not guilty. And then you'll see
under Count 2, which is the criminal conspiracy, that you need to make a.finding as to
guilty as to which crime.jf any, was the object of the conspiracy. So, you'll see
aggravated assault, conspiracy, guilty or not guilty. Endangering welfare of children,
conspiracy, guilty or not guilty. So, you finl guilty or not guilty as to conspiracy and
then tell me which if any of the crimes were the object of the conspiracy.
N.T. 836. . 837. This Court finds that it did properly instruct the jury with respect to Count 2: Crimirial
Conspiracy. Further, a defendant fails to preserve a claim for appellate review that the trial court erred
in it charge where the defendant did not declare that he lodged specific objections or exceptions to the
instruction that was given. Commonwealth v. Baker, 963 A.2d 495 "(Pa. Super. 2008). Here, Defendant
did not object to this Court's instruction prior to or, at the time it ~as read, although said instruction
was offered to both parties prior to the instruction being read during the jury charge. In fact, Counsel
for all parties involved agreed that the jury instructions and verdict slip were appropriate. N.T. 740-
743. Therefore, this Court finds no merit to this issue.
III. Motion in "Arrest of Judgment
Although Defendant raises this issue independently, the substance of said issue is contained within
the first two issues that Defendant raises. Therefore, the reasons for.this Court's denial of this issue is
contained within the above-two issues.
IV. Motion forNew Trial: Weight of the Evidence
Defendant alleges that the verdicts were against the weight of the evidence. A motion for a new
trial on the grounds that the verdict is contrary to the weight of the evidence concedes that there is
sufficient evidence to sustain the verdict. Commonwealth v. Widmer, 744 A.2d 745 (Pa. 2000). Thus,
the Commonwealth argues that the defendants cannot logically pursue both qf these arguments. on
appeal. (Com. 's Br. p. 6). Furthermore, a motion for a new trial alleging tliat the verdict was against the
wei.ght of the evidence is 'addressed to the discretion of the trial court, Commonwealth v. Cousar 928
A.2d 1025, 1035-1036 (Pa 2007). An appellate court, therefore, reviews the exercise of discretion, not
the. underlying question whetlier the verdict is against the weight of the evidence. Id. at 1036. The fact
finder is free to believe all, part, or none of the evidence and to determine the credibility of the
20
witnesses. -Id. The trial court will award a new trial only when the jury's verdict _is so contrary to the
evidence as to shock one's sense of justice. Id. In determining whether this standard has been met,
· appellate review is limited to whether the trial judge's discretion was properly exercised, and relief will
only be granted where the facts and inferences of.record disclose a palpable abuse of discretion. Id.Thus, the trial court's denial of a motion for a new trial based on a weight of the evidence claim is the
least assailable of its rulings. Id. See Commo~wealth v. Keaton, 729 A.2.d 529, 540-541 (Pa. 1999).
In the case sub judice, Defendfil?-t again argues that the weight of the evidence supports Defendant's
argument that there was no conspiracy or agreement to comm.it Aggravated Assault upon E.P. While
. .
this Court understands Defendant's argument, thisCourt is not persuaded by it. The jury heard
testimony that Defendant and Fair denied intentionally or accidentally injuring E.P., agreeing with Fair
- . .
to do the same, or knowing that E.P. was injured, but failing to seek medical treatment for her. The
jury also heard testimony that· E.P. was a healthy :fracture-free infant when E.P. was discharged home to
Defendant and Fair, that Defendant and Fair were the only caregivers for E.P., that E.P. sustained
numerous severe, painful, and life threatening injuries, and that those injuries were caused by child
abuse. The jury's verdict is not against the weight of the evidence presented. Clearly, the jury
determined that Defendant did commit the Aggravated Assault, and that, Defendant conspired with Fair
to commit the Aggravated Assault. The jury was certainly capable of determining whether to believe
all, part, or none of the evidence with respect to whether the Commonwealth met its burden at each
count and to determine the credibility ~f each witness. Based upon this Court's review of the entire
record, this Court does not find that the jury's verdict is so contrary to the evidence as to shock this
Courts' sense of justice. Therefore, this Court does not find that the jury's verdict was against the
weight of the evidence.
For the reasons set forth above, the Court enters the Order of Court attached hereto.
21
IN THE COURT OF COMMON PLEAS OF WESTMORELAND COUNTY,
PENN:SYL VANIA- CRIMINAL DIVISION
COMMONWEALTH OF PENNSYLVANIA )
)
vs. ·) NO. 600 C 2013
. )
CHRISTOPHERLAWRENCE PETERMAN . )
ORDER OF COURT
' .
AND NOW, to wit, this
. 11·1v-
1
. YL
. . .
day of August, 2015, for the reasons set forth in the foregoing
I
Opinion, IT IS HEREBY ORDERED, ADJUDGED AND DECREED, that: _·
1. Defendant's Post-Sentence Motion for Acquittal as to Aggravated Assault is DENIED.
..
2. Defendant's Post-Sentence Motion to Acquittal as to Conspiracy to· Commit Aggravated
Assault is DENIED.
3. Defendant's Post-Sentence Motion in Arrest of Judgment is DENIED.
4. Defendant's Post-Sentence Motion for New Trial: Weight of the Evidence is DENIED.
COURT:
cc: Judith Petrush, Esq., Assistant District Attorney
Gregory L. Cecchetti, Esq., for Defendant
District Court Administrator
22