Com. v. Cochran, J. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JOSHUA ALLEN COCHRAN
Appellant No. 480 MDA 2015
Appeal from the Judgment of Sentence October 27, 2014
In the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-CR-0007161-2013
BEFORE: BOWES, J., LAZARUS, J., and STRASSBURGER, J.*
MEMORANDUM BY LAZARUS, J.: FILED MARCH 02, 2016
Joshua Allen Cochran appeals from his judgment of sentence entered
in the Court of Common Pleas of York County, following his conviction of
Endangering the Welfare of a Child (“EWOC”).1 After careful review, we
affirm.
The facts are set forth as follows. Amy Funt and Joshua Cochran are
the parents of Child, born February 21, 2012. On April 30, 2012, Funt and
Cochran brought Child to the University of Iowa Children’s Hospital to treat a
cold that had worsened. However, while at the hospital, medical personnel
noticed that Child cried when her legs and arms moved. Due to the
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S. § 4304.
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suspicion of child abuse, Child was admitted to determine the severity of her
injuries. Dr. Resmiye Oral examined Child on May 1, 2012. Dr. Oral
discovered that she had numerous rib fractures, as well as healing fractures
in her left fibula and right tibia. Dr. Oral counted nineteen different skeletal
injuries on Child’s body. In addition, Dr. Oral concluded that Child suffered
from periosteal reaction, a new bone formation that occurs after there has
been trauma. Child suffered from this reaction in her right humerus, both
femurs, and left tibia.
To determine the origins of Child’s injuries, Dr. Oral performed tests
for any condition that might have caused her bones to break easily. Child’s
bone density was normal, genetic tests were negative, and there was no
evidence of brittle bone disease. Dr. Oral concluded that the injuries were
trauma-related and that there was no plausible medical explanation for the
injuries.
When Dr. Oral confronted Funt and Cochran about Child’s injuries,
Cochran stated that he was playing video games with Child lying on the
couch when she fell onto the floor. Funt indicated she informed the
Department of Human Services that Child was injured when she was lying in
Funt’s lap when Funt leaned forward to catch a ball. Dr. Oral disbelieved
both explanations as to the root of Child’s injuries and filed a report with
Child Protective Services on her behalf. Although Child now lives in Iowa,
the abuse occurred in Pennsylvania, and Trooper Christopher Calarusso of
the Pennsylvania State Police investigated.
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At trial, Dr. Oral testified as an expert in pediatrics and child abuse.
Dr. Oral stated that rib fractures are indicative of physical abuse because
such injuries are inflicted by squeezing a child’s chest cavity. Furthermore,
Dr. Oral stated that Child would have been in extreme pain and the person
who inflicted this injury would have known that something significant had
happened. Child would have cried because of significant pain at the time of
injury, lasting from fifteen minutes to a few hours in length. Child would
have reacted in pain when the fracture fragments at the injury sites were
moved within ten to fourteen days of healing. Dr. Oral noted that Cochran
indicated that Child was a fussy baby who cried a lot and woke up several
times during the night.
Dr. Oral further determined that Child received the fractures
approximately four to six weeks before admission to the hospital. However,
because Child did not exhibit any signs of pain or irritability at her checkup
appointment at the Springdale Pediatric Clinic on April 6, 2012, the fractures
could have occurred as recently as three and a half weeks before admission.
Lastly, Dr. Oral concluded that the periosteal reactions occurred two to four
weeks prior to Child’s admission to the hospital.
Dr. Danielle Boal, an expert in pediatric radiology, agreed with Dr.
Oral’s findings and concluded that the injuries would have caused Child to be
irritable when lying still. Furthermore, Dr. Boal testified that caregiving
tasks such as dressing Child would have aggravated her pain and resulted in
her crying.
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Only Funt and Cochran care for Child and when Funt would depart for
work at night, Cochran was the sole caregiver. As the sole caregiver at
night, Cochran testified he would feed and change Child. Before Child’s visit
to the hospital for a cold on April 30, 2012, she had two routine pediatric
visits on March 7, 2012, and April 6, 2012. Cochran further testified that he
did not harm Child, she was not a fussy baby, and she did not cry often.
On September 5, 2014, at the conclusion of a jury trial, Cochran was
found guilty of EWOC. On October 27, 2014, Cochran was sentenced to a
period of incarceration of one year minus one day, to two years minus two
days.
Cochran filed this timely appeal in which he asserts that the evidence
was insufficient to sustain a guilty verdict for EWOC and that the jury’s
finding of guilt for this offense was against the weight of the evidence
presented at trial.
Our standard of review in assessing a challenge to the sufficiency of
the evidence is well-settled. “The standard we apply in reviewing the
sufficiency of the evidence is whether viewing all the evidence admitted at
trial in the light most favorable to the verdict winner, there is sufficient
evidence to enable the fact-finder to find every element of the crime beyond
a reasonable doubt.” Commonwealth v. Garland, 63 A.3d 339, 344 (Pa.
Super. 2013). “Any doubts concerning an appellant’s guilt [are] to be
resolved by trier of fact unless the evidence was so weak and inconclusive
that no probability of fact could be drawn therefrom.” Commonwealth v.
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West, 937 A.2d 516, 523 (Pa. Super. 2007). “[T]he Commonwealth may
sustain its burden of proving every element of the crime beyond a
reasonable doubt by means of wholly circumstantial evidence.”
Commonwealth v. Perez, 931 A.2d 703, 707 (Pa. Super. 2007).
Endangering Welfare of Children is defined as follows:
§ 4304 Endangering Welfare of Children
(a) Offense defined – A parent, guardian, or other person
supervising the welfare of a child under 18 years of age commits
an offense if he knowingly endangers the welfare of the child by
violating the duty of care, protection, or support.
18 Pa.C.S. § 4304
Here, Cochran argues that the Commonwealth failed to establish that
he was aware of the circumstances that threatened Child’s physical or
psychological welfare or that he did not reasonably act to protect her
welfare. We disagree.
Evidence is sufficient to convict the accused for endangering the
welfare of a child when:
The accused is aware of his or her duty to protect the child, is
aware that the child is in circumstances that threaten the child’s
physical or psychological welfare, and has either failed to act or
has taken actions so lame or meager that such actions cannot
reasonably be expected to be effective to protect to the child’s
physical or psychological welfare.
Commonwealth v. Mackert, 781 A.2d 178, 187 (Pa. Super. 2001).
Child welfare statutes, such as EWOC, are to “be given meaning by
reference to the common sense of the community and the broad protective
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purposes for which they are enacted.” Commonwealth v. Wallace 817
A.2d 485, 491 (Pa. Super. 2002). Evidence is sufficient to convict for EWOC
when a parent is caring for a child and should be alerted to a child’s
worsening condition that warrants urgent medical attention but fails to do
so. Commonwealth v. Morrison, 401 A.2d 1348, 1352-53 (Pa. Super.
1979).
In Morrison, Florence and Richard Morrison argued that the evidence
was insufficient to support their conviction for EWOC. The evidence
presented at trial, however, demonstrated that the child’s urinary infection
worsened while under the defendants’ care and required the child to spend
seven weeks in the hospital recovering. Doctors discovered the child’s
condition when the Morrisons brought the child to the hospital for an
unrelated elbow injury. The Morrisons’ argued that they were unaware of
these circumstances. The court found this argument to be without merit.
“The complete disregard of the child’s worsening condition caused the
condition to reach an acute stage that was caught in time only because the
child received another injury that required attention.” Morrison, 401 A.2d
at 1352.
Like the defendants in Morrison, Cochran disregarded Child’s serious
condition that was discovered only because she developed a cold that
required medical attention. Moreover, Dr. Oral testified that simply placing a
hand on Child to pick her up would have caused her to be in pain.
Furthermore, Dr. Oral’s testimony indicated that “there was no plausible
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accidental mechanism of injury to explain all of the child’s injuries, and there
was no medical explanation to explain all of those injuries either.” N.T. Trial,
9/3/14, at 216. Cochran testified that at night, he was the primary
caregiver to Child, which included feeding and changing her. In his brief,
Cochran argues that the Commonwealth failed to establish he was aware of
the threatening circumstances for Child. This argument is without merit, as
the expert testimony shows a reasonable person would have been alerted to
Child’s unhealthy condition. Moreover, Cochran cites to no case law
supporting his argument that a complete lack of knowledge is sufficient for
an acquittal.
Next, Cochran challenges the weight of the evidence on the same
grounds he challenges the sufficiency of the evidence.
In Pennsylvania, the standard of review for an appeal challenging the
weight of the evidence is well-settled. The finder of fact is the exclusive
judge of the weight of the evidence and is free to believe, all, part, or none
of the evidence presented. Commonwealth v. Cruz, 919 A.2d 279, 281-82
(Pa. Super. 2007). Additionally, the finder of fact determines the credibility
of the witnesses. Id. In reaching its decision, it is the duty of the finder of
fact to reconcile inconsistent testimony and resolve any consistencies.
Commonwealth v. Manchas, 633 A.2d 618, 624 (Pa. Super. 1993).
The relief sought in a weight of the evidence challenge is the award of
a new trial. However, the Supreme Court of Pennsylvania has held that a
new trial should only be granted if the finding was against the weight of the
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evidence and is so contrary to the evidence that it shocks one’s sense of
justice. Commonwealth v. Whitney, 512 A.2d 1152, 1155 (Pa. 1986).
Where the trial court has ruled on the weight claim below, an appellate
court’s role is not to consider the underlying question of whether the verdict
is against the weight of the evidence. Commonwealth v. Champney, 832
A.2d 403, 408 (Pa. 2003). Rather, appellate review is limited to whether the
trial court palpably abused its discretion in ruling on the weight claim. Id.We find that the trial court did not palpably abuse its discretion in
denying Cochran’s weight claim. The expert evidence presented at trial
showed the injuries received by Child indicated abuse. Moreover, expert
testimony illuminated the fact that simply picking Child up would have
caused her to be in pain. Although Cochran claims he had no knowledge of
her injuries, the evidence presented showed Child cried often, which was
indicative of pain. Because it is the jury’s duty to reconcile possible
inconsistent testimony and resolve any such inconsistencies, Manchas,
supra, we conclude that the trial court did not abuse its discretion in
concluding that the verdict was not against the weight of the evidence.
Champney, supra.
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/2/2016
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