*1 damage when the occurred or how much of damage occurred super- under Exodus’
vision, Appellant simply did not establish right to recover under Exodus’ insur- Thus, policy.
ance correctly the trial court
entered judgment favor of Exodus.
¶ 29 foregoing, we hold Based Appellant was unable to meet her proof against
burden of at trial a subse-
quent bailee merely by showing an original
bailment of her personalty good condi-
tion prior with a bailee and the return of
her personalty damaged condition from Moreover,
a subsequent bailee. we hold Exodus, bailee, the subsequent cannot
be construed as an absolute insurer all
damage Appellant’s goods, where Appel-
lant admitted proof support no this con-
tention. Accordingly, we affirm the judg-
inment favor of Exodus. Judgment affirmed. Pennsylvania,
COMMONWEALTH of
Appellee,
v. VINING, Appellant.
Wanda Pennsylvania,
Commonwealth of
Appellee, Jones, Appellant.
Lee E.
Superior of Pennsylvania. Court
Argued April 30, 1999.
Filed Dec. 1999.
Revised Jan. 2000. *3 Vining and her live-
Wright
Wanda
asked
Jones,
baby-sit
companion,
Lee
daughter Marlayna
year
two-and-a-half
old
appointment.
that she
attend
so
could
as Mr.
This was not an unusual occurrence
Wrights’
were the
Jones
after
neighbors and had often looked
then-
However, what
past.
oc-
daughter
day
day
curred
was unusual.
Hospi-
ended with
Children’s
from first
Pittsburgh suffering
tal
*4
chest, back,
degree
second
burns on her
legs
and
with some bruises about
and also
counts,
body
enzyme
pos-
her
and elevated
injuries.
sibly
of some internal
indicative
injuries
nature
to Marlayna
The
of the
aroused
in the health care
suspicions
work-
of
prompting
ers
a notification
Children
police.
and Youth
and the local
Services
Marlayna
days,
For the next
re-
twelve
Regoli,
Kensington,
David
New
for Vin-
Hospital
at
for
mained
Children’s
treat-
ing, appellant.
Following
of
her re-
injuries.
ment
her
Huffman,
Christopher
De-
Asst. Public
lease,
placed
custody
she was
into
fender,
Jones,
for
Greensburg,
appellant.
permit
her
her
grandparents
maternal
Scherer,
Atty.,
Christian
Asst. Dist.
parents
counseling
to assist
receive
Com.,
Greensburg,
appellee.
injuries.
Marlayna’s
them in
dealing
afterward,
During the
and
hospitalization
McEWEN,
Judge,
Before
and
President
investigation
which
was conducted
ulti-
CAVANAUGH,
SOLE, JOHNSON,
DEL
Vining
mately led
arrests of Ms.
and
to the
EAKIN, JOYCE,
HUDOCK,
charged
Mr.
Each were
sepa-
Jones.
MELVIN,
and
MUSMANNO
ORIE
JJ.
counts of aggra-
rate informations of four
(Counts 1, 6, 12,
13),
and
vated assault
PER CURIAM.
(Count 8),
count of
assault
two
simple
appeals
1 The present
are from the
(Counts 2
endangerment
counts of reckless
imposed
judgments
upon Ap-
of sentence
7),
endangering the
and
four counts of
Jones,
pellants,
Vining and Lee
Wanda
(Counts 3, 4, 9,
10),
and
welfare
a child
following their convictions for numerous
conspiracy
two
criminal
counts of
from
stemming
offenses
the abuse of a
(Counts
11).
multiple
counts
year
two-and-a-half
old child who sus-
allegations pertaining
reflect the separate
injuries while
their
tained
care. Given
upon
to the
inflicted
different
background
pres-
factual
identical
child.
issues,
ence of common
resolution of both
accomplished in
appeals can best be
a sin-
apart-
in an
Ms.
who lived
Vining,
gle opinion.1
Wrights,
next
claimed that
ment
¶2
pulled a
Marlayna
burned when she
regarding
record
factual
water
48-ounce container of hot
down
case
background of this
reveals that on
herself
from the
table onto
after
May
Ms. Laura
kitchen
morning
grant
Opinion
opinion
1.
of this
from the
That
was withdrawn
The bulk
taken
opinion
panel
in this case
authored
of this
en banc review.
court’s
Brosky,
John
with his consent.
Honorable
G.
burned, and the three of them
had been
Vining had left
the kitchen.2 Ms.
Ms.
process
Hospital.
in the
Vining
proceeded
recounted she was
to Citizens General
had boiled water and
making tea and
arrived at Citizens
they
after
Sometime
bags
large
mug.
tea
thermal
placed
Vining
Marlayna
left.
General Ms.
she ran into
hearing
cry
After
the child
out
doctor and
emergency
room
seen
Marlayna
the kitchen and found
on
in Pitts-
Hospital
then taken to Children’s
hot
floor with her shirt soaked
burgh when it was decided
condition
Marlayna
Vining
up
Ms.
picked
water.
enough
special-
to warrant the
was serious
Marlayna
until
calmed down.
and held her
ized treatment
that was available
Chil-
applied
then removed her shirt and
She
burns, Marlayna
In addition to the
dren’s.
ointment to the
compresses
milk
and some
bruising
genital/anal
around the
had some
Vining
fin-
reddened skin. When Ms.
which
region
thigh
well as her back and
burns,
taking care of the
she dressed
ished
explain.
could
Ms.
not
belonged
Marlayna
jumper
in a blue
Carrasco, M.D. testi-
Mary
6 At trial
Marlayna
of her children.
soon
to one
Marlayna’s body
on
pattern
fied the burn
Vining put
nap,
asked to take
shape
in that it took the
was unusual
her to bed.
wearing, spe-
had been
clothing
¶ 4
Laura
approximately
At
11:00 a.m.
*5
to Dr.
cifically,
top,
a tank
which indicated
up
to
Wright
pick
returned home and went
a
the burn was of non-accidental
Carrasco
Wright
Ms.
Marlayna.
Vining
Ms.
told
was rendered
origin.
opinion
A similar
Marlayna
asleep.
was still
She made
that
Marlayna’s
on
regard
with
to the bruises
Marlayna
fact that
had
no mention of the
Additionally, Marlayna presented
back.
feared Ms.
been burned because she
abdomen as
a
and tender
distended
Wright
out.” Ms.
Wright would “freak
enzyme counts.
with elevated
well as
nap
Marlayna
to let
finish her
decided
in-
were consistent with
symptoms
These
Shortly thereaf-
up.
rather than wake her
and
injury
pancreas
and liver
ternal
Vining
Wrights’ apart-
went to the
ter Ms.
bruising of these
suggested
internal
Wright
that
some
ment and informed Kevin
it was
testified that such
Marlayna
organs.
had been burned but
Dr. Carrasco
to
nothing
Wright
significant
serious. Mr.
decided
with a
injury
was consistent
Marlayna
napping.
abdomen,
continue
Ms.
allow
to
through
either
blow to
never informed about the burn
Wright was
or
being punched
trauma or
accidental
to
p.m.
get
and at about 2:00
returned
Dr. Carrasco also
kicked
the abdomen.
Marlayna
daughter.
Vining
Ms.
indicated
in a
Marlayna would have been
opined
failed to men-
sleeping
again
was still
and
after
pain
of discomfort and
great deal
tion the burn.
that the need
experiencing the burns such
medical attention would be
for immediate
further asserted that
Vining
5 Ms.
that
unlikely
further it was
apparent, and
up she stated that
Marlayna
when
woke
sleep
Marlayna would have been able to
to
to the bathroom. Mr.
go
she needed
Lastly, Dr.
sustaining
after
such burns.
and
took her into the bathroom
Jones
injuries were serious
testified the
Carrasco
then
jumper
her out
and
helped
o.f
and,
internal
significant
there been
had
begun
had
discovered that the burned skin
threatening as well.
injury, potentially life
Vining in
Mr.
called Ms.
peeling.
Jones
a
Additionally,
Myers, pediatric
Dr. Steven
condition of the burns
upon seeing
and
upon asking
surgeon,
testified
im-
Marlayna
to take
Vining
Ms.
decided
Marlayna
who hurt or burned her
child
emergency room.
Just
mediately to the
by uttering a name that sound-
responded
Vining
Ms.
ran
apartment
outside of the
like “Rhonda.”
ed
Wright.
explained
into Ms.
She
hearing regarding
represented by
at
counsel
a
Vining
Jones testified
2. Neither Ms.
nor Mr.
trial,
investigation
the incident.
under oath and
but both testified
endangers
provides
§
that one
Mr.
were tried
which
Vining
7 Ms.
Jones
knowing-
child if he or she
jury on all
the welfare of a
jointly and convicted
care,
or
duty
protection
Mr.
were
Vining
ly
counts. Ms.
Jones
violates
a conviction
In order to sustain
period
support.
each sentenced to a
of incarceration
(4)
(8)
must
eight
years.
four
Post-trial
of this offense
Commonwealth
elements:
pres-
following
of the
motions were filed and denied.
establish each
appeals
ent
followed.
1)
duty
aware
the accused is
of his/her
child;
protect
Vining
v. Wanda
Commonwealth
2)
that the child is
the accused is aware
four issues
Appellant Vining
raises
that could threaten
in circumstances
whether
the evi-
for our consideration:
physical
psychological
child’s
dence was sufficient to sustain the convic-
welfare; and
of a child
endangering
tions for
the welfare
3)
act or
the accused has either failed to
offense;
conspiracy
to commit
meager
has taken action so lame or
in failing
grant
whether the court erred
reasonably
actions cannot
that such
re-
prosecutor’s
a mistrial because of the
protect
the child’s wel-
expected
be
marks; whether the court erred in admit-
fare.
victim;
hearsay statements of the
ting the
Pahel,
denying
and whether the court erred in
159, A.2d
request
jury panel
to strike the
after one
¶ Curiously,
Vining does not chal-
jurors
commented that she
sufficiency of the evidence to
lenge the
afraid of the defendants.
simple
ag-
sustain the convictions for
challenges
9 Ms.
the suffi-
first
this is not the
gravated
Although
assault.
ciency
con-
of the evidence
sustain her
the evi-
of a concession
equivalent
endangering
on two
victions
counts
*6
con-
uphold
to
those
dence was sufficient
conspiracy
welfare of a child and
to endan-
victions,
challenge the evi-
the failure to
the
a
ger
welfare of
child.3 We conclude
volumes and
regard speaks
dence in that
presented by
that the evidence
the Com-
if
question:
rhetorical
the evi-
begs the
monwealth
trial was sufficient to sustain
prove aggravated
to
dence was sufficient
these convictions.
it
a convic-
assault how could fail to sustain
Initially,
10
we note the well-
welfare of a child?
endangering
tion for
the
principle
known
a review of the
answer,
believe, is it cannot.
we
sufficiency of the evidence we must view
Marlayna
Dr.
indicated
Carrasco
the evidence in favor of the Common
enzymes that was
an elevation of her
had
allowing
wealth as verdict winner
the
bruising of the
with the internal
consistent
Commonwealth the benefit of all reason
opined
further
pancreas.
She
liver
able inferences
therefrom.
Common
for this elevation
likely
most
cause
the
Jackson,
A.2d
wealth v.
506 Pa.
major trauma to the
would be a
enzymes
recognize that
Further we
Marlay-
if
might
such as
be seen
abdomen
sufficiency of the evi
addressing
when
the
or had
had been in a severe accident
na
dence,
fact-
testimony weighed by
all
the
kicked in the stomach
punched or
been
regardless
considered
of
finder must be
I,
N.T., Volume
hard manner.
very
a
2/7-
admissibility of that evidence. Com
the
19/97,
was an ab-
there
at 586-87. Since
(Pa.Su
Savage,
monwealth v.
inwas
circumstances that threatened her mit a
in further
crime and an overt act
physical
well-being and those
were
agreement
plan.
ance of the
Common
severe in nature.
yet, despite
And
this
Rios,
A.2d 1025
wealth v.
knowledge, she failed to seek immediate
(1996). Indeed,
v. Tim
in Commonwealth
medical attention.
(1992),
er,
A.2d 572
¶ 14
upheld
asserts the evidence was we
conspiracy
conviction for
purchase
methamphet
insufficient because the
possess
and/or
did
though
place
not establish she was aware of the
amine even
never took
a sale
Marlayna’s injuries
seriousness of
until
because
going
place
was never
to take
nap
posing
suppliers
awakened from her
and it
officers
undercover
begun
actually providing
discovered that the burns had
had no
intention
*7
peeling.
Vining
drug.
Ms.
continues it was at
We reiterated that the evil which
agree
point
this
that she did seek prompt
punish
medi-
seeks to
is the
conspiracy
However,
cal
Marlayna.
persons
attention for
Ms. ment of
to act
two or more
Thus,
Vining’s argument presupposes the
it is
finding
purpose.
concert for a criminal
a
benign
of more
version of the facts than
that
irrelevant
to a
conviction
conspiracy
the Commonwealth
conspiracy
is entitled to as verdict
the crime
actu
supporting
above,
Rather,
ally
proven.
winner. As summarized
the Com-
be
all that is neces
sary
monwealth is entitled to a review
for
prove
based
the Commonwealth to
is
upon
assumption
Vining
agreement
that Ms.
in-
to commit a crime
was reached
tentionally
inflicted the
and
in furtherance
severe
and an overt act was taken
person
argument
a reasonable
would have un-
of it.
ad
Consequently,
they required
derstood that
immediate
vanced
can afford her no
Appellant
such,
conspiracy
medical attention. As
the evidence
relief from the
conviction.
was sufficient to sustain the convictions for
¶ 17
a
trial
Ms.
next asserts
new
endangering the welfare
aof child.
required
is
because the trial court allowed
challenge
hearsay
prejudice.
15 As to her
to the sufficien-
inadmissible
to her
cy of the
Dr.
conspiracy
argues
testimony
Myers,
evidence of
to en- She
of
to-
child,
danger
Vining’s
the welfare of a
effect
responded
argument
regard
question
entire
this
was tied to
“Rhonda” to his
“who burnt
and shock-
you?”,
unexpected
not fall
caused
some
you?” and “who
did
hurt/hit
occurrence,
had
person
which that
any
hearsay
ing
within
exceptions
witnessed,
closely
in or
just participated
improperly
and thus was
admitted over
phase
to some
of
and made
reference
objection.
The trial court ruled after
an in camera examination of Dr.
perceived,
that occurrence which he
Myers
near
this declaration must be made so
argument
and full
on the matter
place
in time and
the occurrence both
response
child’s
was admissible as an ex-
having
of its
the likelihood
cited
The
ar-
to exclude
utterance.
Commonwealth
from his
part
in whole or
gues
support
ruling
of the trial court
emanated
faculties.
[or
claims that
reflective
her]
and as
alternative it
response
properly
admitted under the
434,
Carpenter,
v.
Commonwealth
555 Pa.
treatment/diagnosis
exception
medical
(1999)
154,
(quoting
A.2d
hearsay
disagree
rule. We
both
Washington,
v.
Pa.
Commonwealth
conclusions.
(1997).
1018, 1022
is
underlying
exception
rationale for this
recognize
18 We
the admissibil
startling
speaks through
event
that “the
of
to the
ity
evidence is matter addressed
acts
the declarant and vests
verbal
of
court,
of the trial
we
sound discretion
reliability in an out-of-court
statement
may
rulings
admissibility
reverse
on
accuracy
whose
would otherwise be sus
showing
clearly
that the trial court
spontaneity
such an excit
pect. ... The
abused its discretion. reliability
is the source of
ed declaration
Weber,
(1997).
Pa.
A.2d 531
admissibility.”
and the
touchstone
recently
19 As most
noted
our Chamberlain,
Thus, an ex
supra, at 596.
Supreme Court:
speaking
is “the event
ited utterance
hearsay
provides
rule
that evidence
Zu
Commonwealth v.
speaker.”
not the
of a declarant’s out-of-court statements
kauskas,
whose mind has recol- difficulty, my but best had some overpowering an emotion subject repeated lection of what she me on Myers. questioning Marlayna told Dr. In so questioning repeated answering responses the did Marlayna not transform Rhonda. into a medium for of message what she witnessed, rather, but she
She stated that she was burnt. I became the me- you? asked her did Rhonda dium which she could confirm burn She the doc- yes. you predetermined said hurt by Were Rhonda? tor’s conclusions. Particu- And the yes. by larly answer was And hit in the case of a young may child who Rhonda. I don't in remember what se- not be able to make or understand distinc-
quence we. asked types ques- use, those language tions and nuances of it is tions. dangerous asking question pre- to be - suppose facts. N.T. IIVol. at 936-37. % responses given ques- general skepticism concern posed tions by Myers proxi- underlying hearsay ground Dr. were not statements is mate to the ed upon occurrence of the events in the fact that the declarant is not question and for part explain were not of the same available cross-examination to precisely continuous what meant by transaction. The statements the state ments, were made or in which approximately explain they ten to twelve the context made, hours after in question veracity the incidents and were nor is' the declarant’s Marlayna open after for company exploration impeachment. had been Indeed, excep numerous individuals. As a result despite the of these concerns fact that are Marlayna hearsay always was in the tions rules presence of doctors, parents, founded police reasoning officers and some thing other health care workers for about the state exception numerous makes alleged place general hours after the assault took ment more than the class reliable Marlayna compelled enough hearsay never felt statements. See Common Smith, unexpected, wealth v. shocking and overwhelm- A.2d ing experience testimony nature of the to exclaim 1288 The doctor’s that “Rhonda” had beaten or burned her. this case details the circumstances in Only upon being quizzed which the reply did she child’s statements were made. Although “Rhonda.” the mere It passage responses demonstrates that the child’s pointed questions many time has not been were made negate found to being injured, thereby utterance as hours after she was re induced the over- whelming ducing reliability shocking excitement of a statements’ and set event, generally ting hearsay traumatic it outside of speaking exception passage of time will an excited tend to diminish the. utterance.
spontaneity of the utterance and increase
¶ 25 We are aware of the case of Com
the likelihood that
the utterance will be
Watson,
monwealth v.
influenced
reflective thought processes
(1993),
hours after the incidents occurred. Sec- ondly, the child in was described treating young Watson a tor. In Smith nurse and scared and nervous” when “crying as from severe burns asked suffering child statement, prompting he made the thus the happened the child what to her and that it the court to conclude was clear “[d]addy turned on the responded: child “suffering the child was from the emo- still water.” daddy put hot water and me the tional shock and trauma of that incident pre- set forth the Id. 1290. Court when Id. at he made statement.” 788. identity that the of the assail- vailing view contrast, Marlayna In was described as may who have caused perpetrator ant or lethargic subdued uncomfortable injury for which medical treatment is the at the time she made her statements. medical being sought, is not within the fact that quite important 26 Also is the identity exception treatment because the child Watson made the statement pertinent is not to medical of the abuser prior having much contact with others disclosing the events treatment. While response general question, and in as surrounding injury may important be opposed leading question. to a The victim diagnosis, for treatment or identi- medical here made the statements she had after fying person responsible injury for the already emergency been seen in the local medically necessary. not It can be ar- is room, transported by ambulance to Chil- gued physical that the characteristics of a Hospital in Pittsburgh, pres- dren’s perpetrator may diagnosis. be relevant for EMTs, ence of her mother and after Although may it is conceivable that it be being seen one or two doctors and perpetrator to learn that important Hospital. various nurses at Children’s adult, was an male there is no reason Marlayna specifically was also asked if treatment ex- consistent with medical her, if “Rhonda” burned she was hurt identity of ception perpe- to admit the Simply put, pre- “Rhonda.” the factors trator. keeping sented in Watson are more in spirit hearsay of the than exception presented
those here. Those factors tend- Thus, we conclude the state possibility ed to reduce the that the child’s ments of were inadmissible perception was influenced the com- hearsay. Inasmuch as these statements ments, questioning and conversations of directly linking Ap are the evidence company others his after the incident injuries pellant to the infliction of to the declaration, prior but the form child, we further conclude their admission question of the him. put to The same nature of the highly prejudicial. reliability presented indicia of not here particular response statements made and it spirit would be inconsistent with the in were questions, suggested exception the excited utterance to allow inflicted, of an tentionally not result Marlayna’s the introduction of statements accident, claimed at the time. Appellant made to the doctor. such, As the admission of these statements argues 27 The Commonwealth against Appellant. was crucial evidence if improperly the statement was ad we must conclude that Consequently, it mitted as an excited utterance was none hearsay statements admission properly theless admitted as statement requiring grant prejudicial degree to a given purposes securing medical of a new trial. agree. In treatment. We cannot Com grant Appel- decision to 29 Given our Smith, monwealth v. trial, unnecessary we find it (1996) lant a new Supreme our refused to Court contentions of error she address other treatment expand scope of the medical beyond relatively limited na- raises. exception its
320 required nature that immediate
Commonwealth v. Lee Jones serious medical attention? following Mr. 30 Jones sets forth nine issues for our review: Mr. Jones’ brief at 3. 1.) has Whether Commonwealth by addressing Appellant begin 31 We failed to establish that Lee acted [J]ones of evi- challenges sufficiency Jones’ in principal accomplice as the or an charges. argues dence as to all He eharge[d] through crimes Counts 1 presented no evidence he of the Information filed at 3180 Criminal principal any charges, acted as a 1994? and also the Commonwealth failed to es-
2.) has of- Whether the Commonwealth accomplice.4 tablish that he acted as an op- fered evidence consistent with the respect charges With to most of the thus posing propositions proven has convicted, Appellant which was we must neither? agree. 3.) the statements made Whether Myers to Dr. were Wright stan 32 Our well-established admissible as an excited utterance? sufficiency of the evi reviewing dard 4.) viewing the comments made one dence claim is that the evidence Whether juror, light was afraid of the defen- most favorable to Common she dants, wealth, jurors whether the which all selected became we must determine trial, of, including required presented evidence all aware the court dismiss may reasonable inferences that be drawn jury? therefrom, prove all the sufficient 5.) in closing Whether comments made appel elements of the crime for which the arguments by the assistant district at- challenges beyond lant a reasonable doubt. ..., torney, completely which were un- Uderra, 389, Commonwealth v. facts, supported by prosecu- constitutes Moreover, torial misconduct? keep we must in mind that credibili “[t]he 6.) testimony elicited Whether ty weight of witnesses and the to be ac ..., attorney, assistant district which produced corded the evidence are matters than what she knew would be different fact, province within the of the trier of who given proof, her offer of all, is free to some or none of the believe prosecutorial misconduct? Perez, evidence.” Commonwealth v. 7.) Whether the assistant district attor- (Pa.Super.1997). A.2d ..., ney, committed mis- prosecutorial Wright conduct she asked Laura if when cognizant are of the difficulties We she had ever observed effects in cases of facing prosecution often physical violence between the defen- Typically child abuse. in such cases one dants? finds, here, witnesses to the 8.) the assistant district attor- Whether transpired young events that are a victim ..., committed ney, prosecutorial mis- alleged perpetrators. and the Nonethe- argued conduct when she a law to the less, the law still requires Common- jury which does not exist? prove wealth the elements of each crime 9.) beyond failed a reasonable doubt as to each co- Whether the Commonwealth individually. trial court testimony which established defendant candidly knew that the concedes no direct evidence was Lee Jones by Marlayna Wright presented personally were of a that Mr. Jones com- sustained gering except are the welfare of a child based 4. All the counts omission, prompt upon allegations appellant was ei- tire failure to seek medical based treatment, allege perpetrator an ac- and counts 5 and 11 a con- ther a of the assaults or endangering complice perpetration spiracy to commit the welfare of assaults. charges Counts 4 and 10 set forth of endan- child.
321
in the crime
supporting
indicating participation
mitted the assaults
the numer-
dence
Keblitis,
charged.
offenses
v.
ous
While
Common-
is
Commonwealth
required.”
(1983).
321, 324,
149,
presented
wealth
sufficient evidence to
Pa.
456 A.2d
151
500
jury to
that an
permit
legally
conclude
requires
the law
some
importantly,
Most
place,
intentional assault had taken
partici-
that a
was an active
proof
party
nature
this
problematic
finding
is identi-
in
pant
enterprise
in a criminal
order to
fying
only
who inflicted the assaults. The
accomplice liability.
finding
impose
Such
identify
tending
evidence
the assailant
assumption
mere
upon
cannot be based
Marlayna.
hearsay
was
statements
Garrett,
In
v.
speculation.
Commonwealth
However, that identification was of “Rhon-
8,
(1966),
222
902
our Su-
A.2d
jury
reasonably
da” which the
could
inter-
preme
stated:
Court
mean
pret
Vining.
Wanda
There was
scene,
Appellant’s presence on the
presented
no evidence
which pointed to
immediately prior
subsequent
both
and
perpetrator
Mr. Jones as the
of the as-
crime,
to the commission of the
in question.
saults
fact, however,
established. This
in the
¶ Apparently
34
aware of the lack of
of other
indicative of
absence
evidence
directly tying
evidence
Mr. Jones to the
robbery,
in the
appellant’s participation
commission of the assaults as well as a
did not warrant submission of the case
lack of circumstantial
showing
evidence
jury.
assault,
direct
participation
proved
Mr.
Although
Commonwealth
heavily upon
Commonwealth relies
an ac-
in
present
apartment
Jones’ was
be-
However,
complice theory.
the Common-
assault(s),
presented
fore and after the
it
similarly
present
wealth has
failed
any
partici-
no additional evidence Mr. Jones
evidence Mr. Jones acted as
accom-
an
helped
in them or
to facili-
pated
otherwise
plice and essentially
relies
a basic
such,
tate them. As
the Commonwealth
assumption
that since he
dur-
proven
has not
Mr. Jones acted as an
sustained,
ing
or after the
were
accomplice in the commission of the of-
given
relationship
his close
with Wan-
question.
fenses in
Vining,
da
he must have been an accom-
ar
course,
36 The Commonwealth also
plice.
quintessential
Of
this is the
omission,”
Mr.
gues
Jones is “liable
“guilt by
theory
association”
which has
in
presence
apart
that his mere
a small
rejected
soundly
jurispru-
been
in our
impose liability
ment is sufficient to
as if
dence.
had
assaulted the victim be
personally
he
very
35 The
nature of accom
prevent
cause he did not
the assault. This
actively
plice liability is that one who
interesting
argument
an
but
is
novel
purposefully
engages
activity
criminal
virtually
one which is
in law.
unsupported
criminally
responsible for the criminal
theory Mr. Jones had an obli
Under this
co-conspirators
actions
which are
his/her
gation
protect
and care
committed
furtherance of the criminal
duty
him
and his dereliction of that
made
However,
impose
endeavor.
in order to
and,
to the assault
essential
accomplice
an
this
criminal
liability
form of
individual
ly, just
culpable
personally
as if he
beat
be an
partner
“must
active
the intent to
the child.
the circum
and burned
Under
v.
[a crime].”
commit
agree.
of this case we cannot
stances
Fields,
316, 319-20,
Pa.
333 A.2d
(1975). Further,
37 We have found
one case
accomplice
“must
culpable by
something
participate
have done
the which an individual was found
Flowers,
of an-
for the intentional assault
venture.” Commonwealth
omission
Howard,
In Commonwealth v.
Pa.
other.
(1979),
A.2d 674
presence
“mere
at the scene is
Lastly,
Howard,
mother,
found
Darcel
support
insufficient to
a conviction: evi- child’s
knowledge
authorities when there is
involuntary manslaughter for fail-
alert
guilty of
ongoing
regular
abuse of a child
prevent beatings
ing to intervene and/or
*12
quite
hands of another.
It is
anoth-
at the
daughter
of her
at the hands of
and abuse
liability
altogether
impose
er matter
to
boyfriend.
affirming
In
Howard’s live-in
un-
prevent
an individual fails to
an
when
the terms
acknowledged
the conviction we
sudden assault on a child.
expected and
301(b)(2),
very
§
of 18
same
Pa.C.S.A.
premise
must be mindful that the
of
We
suggests pro-
section the Commonwealth
liability
person
is that the
who
this form of
imposing
liability
a
criminal
vides basis for
the one
nothing
just
culpable
is
as
as
did
present
case. This section allows
the assault.5 At first blush
who inflicted
liability
upon
of criminal
based
imposition
appear
fly
to
theory
liability may
this
of
omission,
act, where a
opposed
an
to an
of
concepts
the face of the fundamental
the omitted act is other-
duty
perform
to
liabili-
personal
personal responsibility
panel
law. A
of this
imposed
wise
However,
considering liability
ty.
when
“failure
determined that Howard’s
Court
during
a failure to intervene
weeks of
the child was a direct cause of
protect
to
has
certain visceral
theory
abuse this
a
death,
failure was reck-
her
such
of a
inactivity
the face
appeal. Such
grossly negligent
less or
under the circum-
danger
certainly
should
not be con-
known
stances.” Id. at 676.
doned,
fundamental-
and it would not seem
liability was im-
Although
criminal
some,
equal,
if not
crim-
ly unfair to attach
Howard for the direct
posed upon Ms.
such an omission. But to
liability
inal
boyfriend,
assaults committed
her
Ed-
culpability upon
impose
degree
the same
Watts,
the circumstances of the
ward
witnesses,
prevent,
fails to
a
one whom
but
considerably
Howard case are
different
convincing.
attack of another is less
brutal
in-
presented
than those
here. Howard
a brutal attack
person
who witnesses
“continuing pattern
a
volved
case of
matter,
upon the
has less time to reflect
abuse, and sadistic torture
beatings,
severe
opportunity
time and
to intervene and
less
inflicted on her child Watts
over
way
in harm’s
if
may place him/herself
weeks.” Id. at
period of at least several
attempts to intervene.
he/she
Although
678.
Ms. Howard was found
¶40 The above concerns notwithstand-
failing to
her
criminally
prevent
liable for
assuming
theory
legally
such a
ing, and
death, liability
imposed
not
be-
child’s
was
viable,
argument still
the Commonwealth’s
step
failed to
in when the fatal
cause she
imposing liability
fails because
under
but rather
being
blows were
administered
theory
attempt
that an
presupposes
above
nothing
pro-
did
“[Ms. Howard]
because
successful.6
to intervene would have been
tect her child.
never evicted or even
She
has
In
the Commonwealth
regard
this
reported
never
discouraged Watts. She
an
establish that Mr. Jones had
failed to
authorities.”
Id.
anything
public
abuse which
opportunity
prevent
Thus,
upon
was founded
her
liability
present-
only
here. The
evidence
occurred
steps during
periods
failure to take
that established
ed
the Commonwealth
beatings
and assaults.
between
ques-
during
period
his whereabouts
Wright,
Laura
impose
testimony
matter to
criminal
tion was the
39 It is one
present
Mr.
when
caretaker fails to who testified
Jones
liability
parent
when
or
analysis
inactivity Essentially,
liability
where Ms. Howard’s
5.
this is additional
above
Endangering
provided
legal
for in
the Welfare
concluded to be a
cause of
child’s
Thus,
the failure to act is an
of a Child in which
theory
prevail
this
death.
of the offense. See Commonwealth
element
not
Commonwealth would need to establish
Pahel,
¶
immediately seek medical attention for
41 As a result of the
analysis
above
we
Marlayna.
must conclude the evidence was insuffi-
cient to sustain the convictions on counts 1
¶ 44 With respect
conspira
to the
(reckless
assault),
(aggravated
2
endanger-
cy convictions there
developed argu
is no
ment
burning), 3 (endangering welfare
ment which attacks these convictions. Mr.
of
by burning),
child
(aggravated
6
as-
general
Jones’
thesis attacks the evidence
(reckless
sault), 7
endangerment regarding
personally
that he
inflicted the
(endan-
by beating),
assault),
(simple
8
9
an accomplice. Conspiracy
is a crime
gering
welfare of child
beating),
involving
agreement
to commit a
assault)
(aggravated
(aggravated
and 13
such,
crime. As
his
on
attacks
direct or
assault).
charges
These
were all related
accomplice liability do not relate to the
to,
dependent
upon,
finding
that Mr.
separate crime of conspiracy
failing
for
Jones either beat and
burned
attention,
prompt
seek
medical
and no oth
himself, or acted as an accomplice in the
challenge
er
has been presented. Conse
beating
burning Marlayna.
of
quently,
being
there
challenge
no
Commonwealth did
not
sufficient
conspiracy convictions those convictions
evidence from which a jury could reason-
such,
must stand. As
we conclude
ably
findings.
make these
support
evidence was sufficient to
the con
¶ However,
sufficiency
as to the
of
4, 5,10
victions on counts
and 11.
the evidence of the
charges at counts
10,
endangering
for
the welfare of a child
respect
45 With
to these convic
prompt
failure to seek
medical atten-
tions
like his co-defendant
Appellant,
tion,
and at counts and
conspiracy
for
Vining, challenges the admission of the
by failure to seek prompt medical treat-
hearsay response Marlayna
of
as testified
facilitating
ment with the intent of
by Myers.
already
Dr.
deter
We have
endangering
crime of
chil-
welfare of
testimony
mined that this
was inadmissible
dren, we conclude that sufficient evidence
prejudicial
and have ruled that it was
presented
to sustain the convictions on Vining, requiring her to receive a new
charges.
those
evidence, however, pointed
trial. This
culpability Vining
in an intentional
endanger
43 As to the crimes of
child,
testimony had
ing the welfare of a
these two assault on the child. This
charges
charges against Appel
relate to Mr. Jones’ breach of his no relevance to the
obligation,
of a
temporary caregiver
endangering
as
of Mar-
lant Jones for
the welfare
CAVANAUGH, J., concurring:
Appel-
related to
charges
child. These
failure to seek -medical attention for
lant’s
I
Per Curiam
join
Opinion
child,
injured
injured
regardless
who
trial
a new
respect
to the award of
intentionally
injury
the child or if the
reversal
join
I also
Vining.
Wanda
find,
inflicted. Thus we
as to these
appel-
and vacation of the convictions
hearsay tes-
charges, the admission of this
6, 7, 8, 9,
2, 3,
Jones,
lant, Lee
for counts
to war-
timony
prejudicial
was not so
appel-
12 and 13. As to the convictions
rant an award of a new trial.
lant,
Jones,
Lee
for counts
it
feel
I
grant
I
a new trial as
would
have examined the remainder of
46 We
on a
conviction
to affirm a
inappropriate
given them full
Appellant’s arguments and
properly diminished record.
we have
Having
consideration.
done so
have either
concluded
these claims
J., dissenting and
MELVIN,
ORIE
been rendered moot
our reversal
concurring.
the above-
Appellant’s convictions on
*14
¶
the ma
from
1 I
dissent
counts,
respectfully
alternatively,
named
or
have been
as I
hearsay issue
jority’s
the
resolution of
responded
by the trial court
adequately
sufficiently
facts to be
find the instant
opinion.
it its
see no need to disturb
We
v. Wat
in
similar to those Commonwealth
its discus-
ruling
expand
the court’s
on
(1993)
son,
A.2d 785
sion.
I would
there
indistinguishable.
as
be
¶
summarize,
of sen-
judgment
To
the
im
sentence
judgment
affirm the
fore
imposed upon Appellant
tence
Vin-
Wanda
concur
I also
Vining.
posed upon Wanda
ing is vacated and the case is remanded for
by the
reached
in
result
and dissent
the
imposed upon
trial. The
new
convictions
Lee
Majority
Jones.
appeal
the
2, 3, 6, 7,
Lee
for counts
Appellant
Jones
majority, in
the
Vining appeal
2 In the
information, compris-
12 and 13 of the
distin-
allegedly
exploring
factors
assault,
ing multiple charges
aggravated
Watson, incorrectly
from
guish this case
simple
endangering
assault and
the wel-
was
Watson
response
assumes that “the
child,
the relat-
fare of a
are reversed and
incident.”
in time to
proximate
more
convictions and
ed sentences vacated. The
reading of
My
Majority
at 318.
Opinion
imposed upon Appellant
related sentences
evidence
was no
Watson indicates there
4, 5, 10 and 11 of the
Lee Jones for counts
the child
when
the time frame between
information,
each of
comprising two counts
ambulance
and when the
was burned
the welfare of a child and
endangering
Watson,
as
called. The defense
conspiracy, are affirmed.
case,
the statement
argued
of an undisclosed
lapse
influenced
Judgment
imposed
of sentence
had been
period
child
of time after the
vacated and the mat-
upon
Wanda
spontane-
injured and therefore lacked
Judgment
for a new trial.
ter remanded
finding the
In
ity of an excited utterance.
af-
imposed upon Lee Jones
of sentence
utter-
as an excited
statement admissible
in part.
and vacated
Juris-
part,
firmed
Court noted
ance the Watson
relinquished.
diction
that must
an element
“[l]ength of time is
consider-
weighed along with other
be
J.,
with the circumstances
CAVANAUGH,
ations.
It varies
files a
alone
It does not
and from case to case.
concurring opinion.
at 788. In Wat-
admissibility.” Id.
decide
MELVIN, J.,
son,
flies a
the child
50 ORIE
of when
only
evidence
that it
opinion
in which
concurring
dissenting opinion
was burned was the doctor’s
JJ„
twenty-
HOYCE,
within the last
HUDOCK,
join. would have been
EAKIN and
Hence,
concerned,
four
proximity
hours.
cannot be a
insofar as the child was
distinguishing factor.
startling event was
and she was
on-going
under
still
its influence. It is doubtful that
¶ Next,
majority
relies
child,
2^-year-old
who
had limited
fact that the child in Watson was described
parents during
contact with her
the time
‘crying
and scared and nervous’ con-
treated,
being
she was
would have en-
description
trasted with the
of the instant
gaged
independent thought
sufficient
being “lethargic
victim
and subdued and
fabricate a statement to be made
others.
Majority
uncomfortable.”
Opinion at 819.
complete
actual
description of the doc-
¶ 5
exception
The excited utterance
tor’s observation of the victim reads as
properly understood
to a
relates
lack of
follows:
capacity to fabricate rather than the lack
Q.
me,
you
And could
tell
please, Doc-
Therefore,
of time to
ques-
fabricate.
tor,
you
what
observed
you
when
likely
tion is not whether it is
examined the child?
falsely
child’s statements were
made but
A.
I examined—I observed that
totality
rather whether the
circum-
discomfort,
child was in
was some-
surrounding
making
stances
what
lethargic,
very
irritable
suggest
statements
reliability and lack of
appeared
to be in pain.
opportunity for the
prepa-
deliberation and
II, 2/7-19/97,
N.T. Volume
at 975. The
ration
giving
attendant
a false state-
majority’s paraphrasing of this testimony
Generally,
ment.
there are three essential
justice
does not do
to the victim’s condi-
First,
components
exception.
to this
there
*15
Moreover,
tion.
the Doctor further testi-
startling
must be an event
enough to cause
fied that
prescribed
he
morphine for the
Second,
nervous excitement.
the state-
pain. Surely this child
suffering
was still
ment must be made
the person
while
is
from a traumatic event and the severe
under
by
the stress of excitement caused
physical pain which accompanied it.
Third,
the event.
the statement must have
¶ 4
majority
The
next finds a distinction been made before there had been time to
based upon the
people
number of
the re-
misrepresent.
contrive or
spective victims came in
prior
contact with
bright
to
6 There is no
making
by
line test
which
regard
statement.
In this
length
permissible
contacts the
measure the
of a
child had were with
mother,
her
time
being
gap
days
while
for the number of hours or
transported to the
hospital, with the
the excitement can be said to continue
personnel.
medical
The mother testified
from the
of a crime. All that
merely
that she
held
stress
is
her child on
way
hospital
required
showing
to the
is a
that the time was
any
did not ask
questions, believing sufficiently
short
fall
under the facts to
what she had been told that
it
exception.
within the limits of the
I be-
burning.
accidental
compelling
mother’s testimo-
lieve under the
circumstances
ny was not
credibility
contradicted and her
child abuse
liberal evaluation of this
Moreover,
was a matter for the trial judge
exception
employed.
to resolve.'
should be
persuaded
I am not
that contact with vari-
I
special
note that
circumstance at-
personnel
ous medical
in any
could have
tendant
to child abuse victims and wit-
way caused the
recognized by
statement to emanate from nesses has also been
our
the child’s reflective
I am
legislature’s
faculties.
satis-
enactment of the Child Vic-
ample
fied that there is
evidence here to tims and
Act. 42
Witnesses
Pa.C.S.A.
support
§§
the trial court’s conclusion that
5981-5988.7
(a)
years exception
hearsay
7. The tender
General
rule.—An out-of-court state-
witness,
provides:
rule
ment made
a child victim or
§
Admissibility
made
5985.1.
state-
who at the time
statement was
certain
years
age
younger, describing
ments
was 12
or
in
Meyers my esti-
to Doctor
final
is that
statement
distinction raised
7 The
response obviously
in
leading
to a
mation was made
responded
victim
instant
question.
But in
opposed
general
of the doctor.
question
questions
to the
you” does not
“who burnt
that the
question
there’s no indication
my mind
answer,
I fail to see how
thus
suggest
made
this child
that were
statements
any
In
event the form of
leading.
it is
premeditation
of some
were the result
or
question
does not bear
whether
the child or
and consideration
an “excited utterance.”
not a statement
is
I do believe
design
part.
on her
some
Pronkoskie,
in
v.
As noted Commonwealth
of the statement
spontaneity
(1978),
858, 862
477 Pa.
they
though
were
even
was maintained
held
Supreme
repeatedly
Court has
our
of the doc-
questions
response
fact that a statement
“that
mere
there is
previously,
I indicated
tor. As
does not
response
question
to a
made
period
as to the time
no clear-cut rule
gestae
as a res
state
prevent its admission
such statement
pass before
that must
Banks,
v.
(citing
ment.”
I
And as
or must be excluded.
should
(1973)
and Com
stances are 2/7-19/97, II, at 968-970. N.T. Volume are listed other factors that those that the It to remember important 9 is in an of themselves [sic] law are not case is a matter ad- admissibility of evidence consider are factors to dispositive but of the trial sound discretion dressed to the Obviously else. everything with along reverse rul- court, may only and that we mind was made in this case the victim’s upon showing admissibility on ings emotion subject overpowering to the clearly its discretion. the trial court abused and unexpected that was caused 430, Weber, 701 v. being burned. The Commonwealth shocking event of abuse, of relia- provide sufficient indicia any statement contact or physical indecent bility; Ch. enumerated in 18 Pa.C.S. the offenses offenses) (2) performed the child either: (relating to sexual 31 another, (i) proceeding; or at the testifies not other- with or on the child (ii) as a witness. of evi- is unavailable by statute or rule wise admissible dence, added). provision was (Emphasis This any evidence in admissible in applicable to to make it amended in 1996 proceeding if: criminal finds, sexual abuse. (1) physical as well as cases of in an in camera hear- the court However, start of the instant at the tithe of the and that ing, evidence is relevant that the time, yet effective. trial it had not become and circumstances content
327 Keeping A.2d 531 this standard
mind, fully I with the UNION MORTGAGE agree trial court’s FIRST CORP., Appellee, analysis of this issue and can find no abuse of discretion. FREMPONG, Appellant.
¶ Therefore, Steven judg- 10 I would affirm the Vining. ment of sentence as to Wanda Pennsylvania. Superior Court of Jones, join majori I As to Lee 25, Oct. 1999. Submitted ty’s determination to reverse to counts 31, Filed Dec. 1999. 3, 6, 8, 9, 1, 12 and 13 of the information. Reargument/Reconsideration However, as to the on reversal counts 3, March 2000. Denied 7, I merely would vacate convic tions and remand for a new trial for the
following Majority’s reason. Applying the
analysis respect endangering
the welfare of a child charges at counts 10, I likewise would find that there
was sufficient evidence con to sustain the 7,
victions at counts relating endangerment
reckless 18 Pa.C.S.A.
§ upon based the failure to seek
prompt medical attention. In Common Cottam,
wealth v. (1992),
A.2d 988 this Court held that crimi liability
nal for the offense of reckless en
dangering person another can be based omission, if omission where a
duty to act recognized, created a sub great
stantial risk of death or harm. bodily
However, theory since this was not
charged and a jury permitted is not
base its verdict theory charged, on a not Taylor,
see Commonwealth v. 324 Pa.Su (1984),
per. I would
merely vacate these convictions and re
mand for a trial. new
¶12 HUDOCK, JOYCE, EAKIN and
JJ., join in dissenting concurring this
opinion.