J-S17027-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

JUSTIN EDWARD THOMAS,

                            Appellant                  No. 1006 WDA 2014


              Appeal from the PCRA Order Entered May 24, 2014
            In the Court of Common Pleas of Westmoreland County
              Criminal Division at No(s): CP-65-CR-0004562-2009


BEFORE: GANTMAN, P.J., SHOGAN, and FITZGERALD,* JJ.

MEMORANDUM BY SHOGAN, J.:                               FILED APRIL 10, 2015

       Justin Edward Thomas (“Appellant”) appeals from the order dismissing

his petition for collateral relief filed pursuant to the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S. §§ 9541–9546. We affirm.

       We have gleaned the relevant facts and procedural history of this case

from the record as follows: Appellant and Nicole Keppler (“Ms. Keppler”) are

the parents of a daughter, S.T. Appellant was alone with then three-week-

old S.T. during the afternoon hours of September 21, 2009.              When Ms.

Keppler left Appellant and S.T. around noon that day, S.T. was in good

health and was drinking from a bottle.          Several hours later, Appellant
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
J-S17027-15


telephoned Ms. Keppler and stated that S.T. would not wake up. When Ms.

Keppler returned home, S.T. was unresponsive. Appellant and Ms. Keppler

took S.T. to Conemaugh Hospital in Johnstown.          From there, S.T. was

transferred to Children’s Hospital of Pittsburgh. S.T. was diagnosed with a

subdural hematoma and retinal bleeding resulting from physical abuse. As a

result of her severe brain injuries, S.T. requires a feeding tube and is unable

to speak or sit by herself. Appellant was twenty years old at the time of the

incident.

       When questioned by Detective Robert Weaver of the Westmoreland

County Detective Bureau, Appellant stated that he had been playing a game

with S.T. while she was lying on his lap; the game involved pumping S.T.’s

arms up and down while saying, “choo choo.”          Appellant told Detective

Weaver that he may have shaken S.T. too hard during the game.             As a

result of Detective Weaver’s investigation, Appellant was charged on October

8, 2009, with aggravated assault, endangering the welfare of children, and

recklessly endangering another person.

       While waiting for discovery from the Commonwealth, appointed trial

counsel began searching for a pediatric radiologist to serve as an expert but

encountered difficulty in finding a suitable candidate. In the meantime, trial

counsel reached out to an acquaintance, forensic pathologist Dr. Karl

Williams, Chief Medical Examiner of Allegheny County, who provided pro

bono    assistance   to   Appellant’s   defense.   Based   on   Dr.   Williams’


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recommendation, trial counsel contacted Dr. James Smith, Chief Medical

Examiner of Beaver and Lawrence Counties. Dr. Smith was familiar with the

Commonwealth’s expert, Dr. Janice Squires. After speaking with Dr. Smith,

trial counsel petitioned for and received fees to hire him as an expert.

Order, 9/22/10.        Based on their review of S.T.’s medical records, Drs.

Williams and Smith suggested that trial counsel contact Dr. Patrick Barnes, a

pediatric radiologist from Stanford Hospital, because of his expertise in

“shaken baby syndrome.”1           To enlist Dr. Barnes’ expertise, trial counsel

again requested fees from the trial court. Following a hearing, the trial court

denied trial counsel’s request. Order, 4/23/12.

       Appellant entered a negotiated guilty plea on June 5, 2012, to all three

charges. At the guilty plea hearing, the trial court heard testimony from Ms.

Keppler, Detective Weaver, and Appellant. The trial court conducted an oral

guilty plea colloquy, and Appellant completed a written guilty plea colloquy.

Appellant was sentenced the same day to incarceration for a term of six to




____________________________________________


1
   “A diagnosis of Shaken Baby Syndrome . . . indicates that a child found
with the type of injuries described above has not suffered those injuries by
accidental means. Thus, . . . expert testimony shows that the child was
intentionally, rather than accidentally injured.” Commonwealth v. Smith,
956 A.2d 1029, 1038 n.5 (Pa. Super. 2008) (quoting Commonwealth v.
Passarelli, 789 A.2d 708, 715 (Pa. Super. 2001)) (internal quotation marks
and brackets omitted).


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twelve years, followed by five years of probation.2        Appellant did not file

post-sentence motions or a direct appeal.

       On June 3, 2013, Appellant filed a timely pro se PCRA petition, raising

claims of an invalid guilty plea allegedly caused by trial counsel’s ineffective

assistance. Counsel filed an amended petition on November 12, 2013. The

PCRA court held an evidentiary hearing on February 27, 2014, at which trial

counsel testified regarding his unsuccessful search for a pediatric radiologist,

consultation with Dr. Williams, and his retention of Dr. Smith as a medical

expert.   N.T. (PCRA), 2/27/14, at 10–30.        According to trial counsel, both

Drs. Williams and Smith advised him to contact Dr. Barnes. Id. at 15–16.

Trial counsel stated that Dr. Smith would be able to provide a “good

defense,” but Dr. Barnes could have testified “beyond reproach” to

diagnostic tests that could have been conducted to rule out other possible

causes of S.T.’s injuries, such as a genetic condition. Id. at 20–21. Trial

counsel explained that his defense strategy was to argue that Appellant did

not hurt S.T. intentionally or negligently. Id. at 34–36. When his motions

to exclude Appellant’s damaging statements to Detective Weaver were

denied, trial counsel believed a plea was advisable. Id. at 43.



____________________________________________


2
  If convicted, Appellant faced possible incarceration for twelve and one-half
to twenty-five years. N.T. (Motion), 4/23/12, at 9; N.T. (Plea), 6/5/12, at
36–38.


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      The PCRA court denied Appellant’s petition, concluding that “the

colloquy between the Court and [Appellant] more than satisfies the

requirement that the defendant was freely, knowingly, intelligently and

voluntarily entering his plea of guilty to the charges” and that trial counsel

was not ineffective.      PCRA Court Opinion, 5/24/14, at 9.     This appeal

followed.

      Appellant states two questions for our consideration:

      I.    Was Appellant’s plea counsel constitutionally ineffective
            because he initially retained the wrong type of medical
            expert to properly defend the case?

      II.   Was Appellant’s plea counsel constitutionally ineffective
            because he failed to counsel Appellant at the plea hearing
            that his plea lacked a sufficient factual basis?

Appellant’s Brief at 3.

      Our standard of review of an order denying PCRA relief is whether the

record supports the PCRA court’s determination and whether the PCRA

court’s determination is free of legal error. Commonwealth v. Phillips, 31

A.3d 317, 319 (Pa. Super. 2011) (citing Commonwealth v. Berry, 877

A.2d 479, 482 (Pa. Super. 2005)).      The PCRA court’s findings will not be

disturbed unless there is no support for the findings in the certified record.

Id. (citing Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super.

2001)).     Where supported by the record, a PCRA court’s credibility

determinations are binding on a reviewing court.         Commonwealth v.

Mitchell, 105 A.3d 1257, 1277 (Pa. 2014) (citation omitted).


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       Both of Appellant’s questions challenge trial counsel’s representation.

In order to succeed on a claim of ineffective assistance of counsel (“IAC”),

an appellant must demonstrate (1) that the underlying claim is of arguable

merit; (2) that counsel’s performance lacked a reasonable basis; and (3)

that   the   ineffectiveness   of   counsel   caused   the   appellant   prejudice.

Commonwealth v. Pierce, 786 A.2d 203, 213 (Pa. 2001).                “A failure to

satisfy any prong of the ineffectiveness test requires rejection of the claim of

ineffectiveness.”   Commonwealth v. Daniels, 963 A.2d 409, 419 (Pa.

2009) (citing Commonwealth v. Sneed, 899 A.2d 1067 (Pa. 2006)). We

have explained that trial counsel cannot be deemed ineffective for failing to

pursue a meritless claim.      Commonwealth v. Loner, 836 A.2d 125, 132

(Pa. Super. 2003) (en banc).        It is presumed that the petitioner’s counsel

was effective, unless the petitioner proves otherwise.       Commonwealth v.

Williams, 732 A.2d 1167, 1177 (Pa. 1999).          We are bound by the PCRA

court’s credibility determinations where there is support for them in the

record. Commonwealth v. Battle, 883 A.2d 641, 648 (Pa. Super. 2005)

(citing Commonwealth v. Abu-Jamal, 720 A.2d 79 (Pa. 1998)).

       With regard to the second IAC prong, we have reiterated that trial

counsel’s approach must be “so unreasonable that no competent lawyer

would have chosen it.” Commonwealth v. Ervin, 766 A.2d 859, 862-863

(Pa. Super. 2000) (quoting Commonwealth v. Miller, 431 A.2d 233 (Pa.

1981)). Our Supreme Court has long defined “reasonableness” as follows:


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             Our inquiry ceases and counsel’s assistance is deemed
      constitutionally effective once we are able to conclude that the
      particular course chosen by counsel had some reasonable basis
      designed to effectuate his client’s interests. The test is not
      whether other alternatives were more reasonable, employing a
      hindsight evaluation of the record.        Although weigh the
      alternatives we must, the balance tips in favor of a finding of
      effective assistance as soon as it is determined that trial
      counsel’s decision had any reasonable basis.

Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa. 1987) (quoting

Commonwealth ex rel. Washington v. Maroney, 235 A.2d 349 (Pa.

1967)) (emphasis in original).

      Appellant first claims that trial counsel was ineffective in hiring the

wrong medical expert. Appellant’s Brief at 9. According to Appellant, “[a]

defense expert with specialized knowledge, like Dr. Patrick Barnes, could

have argued to the jury one of the many differential explanations for the

appearance    of   a   subdural   hematoma     including   accidents,   prenatal

conditions, genetic conditions, metabolic disorders and infectious disease.”

Appellant’s Brief at 13 (footnote omitted).     The Commonwealth responds

that trial counsel “exercised a reasonable defense strategy in retaining Dr.

Smith as the defense expert, but also managed to secure qualified experts

as resources for the defense at no cost.” Commonwealth’s Brief at 15.

      The PCRA court recounted trial counsel’s testimony regarding selection

of an expert as follows:

            [Trial counsel] testified that he received full discovery from
      the District Attorney’s Office in this case and his estimate was
      that the medical records were at least a banker box full of said
      records.

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           [Trial counsel] further testified that he went through all of
     the discovery materials that he had been provided and that he
     subsequently retained an expert for possible testimony at trial.

            [Trial counsel] testified that while he was waiting for the
     complete discovery in this matter he began to approach and
     correspond with numerous experts to determine what their level
     of interest would be in testifying as an expert in the instant case.

           [Trial counsel] testified that because the Commonwealth’s
     expert was a doctor from UPMC that many doctors in the
     Pittsburgh area would not be willing to testify at trial.

           [Trial counsel] then testified that he looked for a pediatric
     radiologist outside of the UPMC network but someone who was
     within a reasonable distance.

           [Trial counsel] indicated that he had spoken with doctors
     from [The] Johns Hopkins [Hospital], Hershey, NYU and Ohio
     State, however they all wished to have a retainer of $10,000
     upfront before they would begin looking at the records in this
     case.

            Prior to [trial counsel] talking with the pediatric
     radiologists . . ., he indicated that he had hired a Dr. Smith who
     had testified in these types of cases in the past. Also, [trial
     counsel] testified that he had spoken to another doctor in the
     Pittsburgh area who was very familiar with “shaken baby
     syndrome.”      The name of that doctor would be Dr. [K]arl
     Williams and it was Dr. [K]arl Williams who suggested that
     [defense counsel] contact Dr. Smith as a possible expert witness
     in this case.

                                   ** *

            [Trial counsel] indicated that Dr. Smith then agreed to do
     a file review and said file review was done . . . .

           [Trial counsel] testified that Dr. Smith was the Chief
     Medical Examiner of Beaver County and that when [trial counsel]
     asked Dr. Smith if he had handled any previous shaken baby
     cases, he had indicated that Dr. Smith had told him that he had
     handled several.


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            Also, [trial counsel] testified that it was important to him
     ([trial counsel]) that every time Dr. Smith had handled a case
     like the present case, the Commonwealth’s witness was Dr.
     Janice Squire from UPMC Children’s Hospital and this was the
     witness that the Commonwealth intended to call as an expert in
     their case-in-chief.

            [Trial counsel] indicated that initially he was satisfied with
     Dr. Smith, however, as more medical records were delivered to
     [trial counsel] it was suggested to him [by Dr. Williams who was
     acting pro bono and Dr. Smith] that one Dr. Patrick Barnes
     should be consulted in this matter.

                                    * * *

           [Trial counsel] testified that because Dr. Barnes was a
     professional acquaintance of Dr. Williams, [the latter] contacted
     Dr. Barnes and Dr. Barnes agreed to review the medical records
     and write an opinion as to what he thought. At this time, Dr.
     Williams selected the necessary medical records from the
     banker’s box and those records were mailed to Dr. Barnes. Dr.
     Barnes wrote a report and sent it back to [trial counsel].

                                    * * *

          [Trial counsel] testified that after he had reviewed Dr.
     Smith’s report [he believed] that Dr. Smith had provided [trial
     counsel] and his client with a defense.

           [Trial counsel] testified that he thought it was a good
     defense[;] however, for other reasons outside of that, it was a
     bad idea to go to trial but there was a defense that was a viable
     option in this case.

           [Trial counsel] testified that Dr. Barnes had provided to
     him a report and that the conclusion of his report was that there
     were a series of diagnostic tests that need to have been
     performed to rule out other possible causes relative to the injury
     to the child. Some of those causes could have been genetic and
     it was possible that a certain genetic disorder may have caused
     the injury in question.

                                    * * *


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            When [trial counsel] was asked by the [PCRA] court
     [whether] one of the biggest problems that he would face as a
     defense attorney in the instant case was the fact that [Appellant]
     made a statement saying that he was in sole custody of the child
     and that the mother had related that when the child was placed
     in [Appellant’s] custody, the child was perfectly fine and when
     the mother had returned home, the child was in a very damaged
     condition. [Trial counsel] answered that question by indicating
     that the Court’s question was 100% accurate. [Trial counsel]
     testified that he filed motions to try to keep that type of
     information out[;] however motions filed by [trial counsel] were
     denied by the [trial court]. [Trial counsel] further testified that
     [Appellant] had made admissions in Children’s Hospital which
     Detective Weaver had put in his report. When asked by counsel
     for [Appellant] if it was [of] utmost importance in this case to
     hire the right expert, [trial counsel] answered by saying that he
     believed he did have the correct expert.

           [Trial counsel] testified that he did go to Judge Hathaway
     for a second expert and had requested that Judge Hathaway . . .
     hire Dr. Barnes.     [Trial counsel] testified that there was a
     hearing held before Judge Hathaway and that after hearing on
     the matter, [Judge Hathaway] felt that Dr. Smith first of all was
     more competent to testify and second, she indicated that there
     was not any more money available for experts in this case.

           [Trial counsel] was asked why he did not hire Dr. Barnes
     as his expert first and [trial counsel] responded by saying that
     he was not aware of Dr. Barnes until he had already hired Dr.
     Smith and had consulted with Dr. Williams.

PCRA Court Opinion, 5/24/14, at 11–14. Based on trial counsel’s testimony,

the PCRA court concluded as follows:

     The Court finds [trial counsel’s] testimony credible and
     encompassing as to the efforts he made in representing
     [Appellant].

                                   * * *

          It is clear from the record that [trial counsel] spent a great
     deal of time discussing the medical records and a possible
     defense with his client between the time of the Preliminary

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J-S17027-15


      Hearing and the time that the case was called to trial at which
      time a plea of guilty was entered by [Appellant].

                                     * * *

             At the date set for trial [trial counsel] faced an extremely
      difficult and complicated situation. [Trial counsel] had a client
      who maintained that he had not injured the infant child in any
      manner, however, there was scientific evidence to be presented
      by the Commonwealth that showed that [Appellant] was the sole
      custodian of the child in question when the child received
      massive traumatic brain injuries. Also, [trial counsel] knew that
      his client has made additional inculpatory statements to
      Detective Weaver and that his client could face an extremely
      long period of time of incarceration if he were convicted of the
      crimes facing him in this case. . . .

             In reviewing this case, this Court finds that every effort
      that [trial counsel] made in this case was designed to effectuate
      the best interest of [his] client. [Trial counsel] requested and
      received discovery, he attempted to find various medical experts
      that would be a benefit to his client in this matter and in fact he
      located two (2) doctors who had experience in “shaken baby
      syndrome” cases and had retained one of those doctors to testify
      at trial. Further, [trial counsel] had a second doctor advising
      him about a possible defense in this matter. [Trial counsel] also
      attempted to receive additional funds from the Court of
      Westmoreland County through The Honorable Rita D. Hathaway
      and after a hearing she determined that Westmoreland County
      was not in a position to pay additional monies for additional
      experts in this matter.

             In reading the records it becomes clear to this Court that
      [trial counsel] did everything possible that he could as a defense
      attorney to protect the best interests of [Appellant] in this case.

                                     * * *

      In point of fact, this Court finds that the handling of [Appellant’s]
      case by [trial counsel] was exemplary because he had taken
      every possible step necessary to protect the best interests of his
      client[.]

Id. at 17, 18, 20, 21.

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       Our review of the record reveals significant support for the PCRA

court’s determination and leads us to conclude that the PCRA court’s

determination is free of legal error.          Trial counsel consulted with three

physicians, all notably employed and experienced with shaken baby cases.

Dr. Williams provided pro bono assistance in the form of consultations and

recommendations.         N.T. (PCRA), 2/27/14, at 15–16, 51.        Trial counsel

learned about Dr. Smith from Dr. Williams four or five months after the

preliminary hearing.       Dr. Smith reviewed the medical records, provided a

written report, and was prepared to testify as an expert at trial. Id. at 12–

13, 17–18. Trial counsel learned about Dr. Barnes six to eight months after

he had hired Dr. Smith.         Dr. Barnes provided pro bono assistance in the

form of consultations, a review of medical records, and a report. Id. at 15,

18–19, 21. Although trial counsel requested funds to hire Dr. Barnes, Judge

Hathaway denied the request because Dr. Smith could provide a good

defense and because no funds were available for a second expert.             N.T.

(Motion), 4/23/12, at 20.3 Moreover, trial counsel testified that, if Appellant

had gone to trial, Dr. Barnes would have been the preferred expert, but Dr.

Smith’s testimony was a “viable option.” N.T. (PCRA), 2/27/14, at 20–21.



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3
     According to Judge Hathaway, trial counsel could not be deemed
ineffective because he, in fact, requested a second medical expert, but she
exercised her discretion in refusing that request. N.T., 4/23/12, at 19.


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      The PCRA court deemed trial counsel’s testimony credible, and we may

not disturb that credibility determination because it is supported by the

record. PCRA Court Opinion, 5/24/14, at 17; Mitchell, 105 A.3d at 1277.

Based on trial counsel’s testimony, we discern nothing in the record even

remotely suggesting that trial counsel’s approach was “so unreasonable that

no competent lawyer would have chosen it.” Ervin, 766 A.2d at 862-863.

Given his training and experience as a forensic pathologist and his familiarity

with the Commonwealth’s expert, who also is a forensic pathologist, Dr.

Smith was qualified to provide expert testimony regarding S.T.’s injuries and

differential causes. Moreover, Dr. Smith would have access to Dr. Barnes’

report in formulating his opinions and presenting testimony to the jury.

Thus, we affirm the PCRA court’s determination that trial counsel was not

ineffective in hiring Dr. Smith as a medical expert.

      Appellant’s second IAC claim is that trial counsel advised him to plead

guilty even though the Commonwealth failed to provide a sufficient factual

basis for the mens rea element of the aggravated assault charge.

Appellant’s Brief at 16, 20.      Contrarily, the Commonwealth relies on

Appellant’s trial preparation with counsel and the testimony of Ms. Keppler

and Detective Weaver to demonstrate that Appellant was fully aware of the

facts surrounding S.T.’s injury when he pled guilty to aggravated assault.

Commonwealth’s Brief at 17, 20.




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           The right to the constitutionally effective assistance of
     counsel extends to counsel’s role in guiding his client with regard
     to the consequences of entering into a guilty plea.

           Allegations of ineffectiveness in connection with the
           entry of a guilty plea will serve as a basis for relief
           only if the ineffectiveness caused the defendant to
           enter an involuntary or unknowing plea. Where the
           defendant enters his plea on the advice of counsel,
           the voluntariness of the plea depends on whether
           counsel’s advice was within the range of competence
           demanded of attorneys in criminal cases.

     Thus, to establish prejudice, the defendant must show that there
     is a reasonable probability that, but for counsel’s errors, he
     would not have pleaded guilty and would have insisted on going
     to trial. The reasonable probability test is not a stringent one; it
     merely refers to a probability sufficient to undermine confidence
     in the outcome.

Commonwealth v. Barndt, 74 A.3d 185, 192 (Pa. Super. 2013) (internal

quotation marks and citations omitted).

     A factual basis for the plea means:

     the facts acknowledged by the defendant constitute a prohibited
     offense. This salutary requirement is to prevent a plea where in
     fact the legal requirements have not been met; and, to name
     and define the offense, supported by the acts, so the defendant
     will know the legal nature of the guilt to which he wishes to
     plead.

Commonwealth v. Fluharty, 632 A.2d 312, 314 (Pa. Super. 1993)

(quoting Commonwealth v. Anthony, 475 A.2d 1303, 1307 (Pa. 1984)

(footnote omitted)).

     Here, Appellant challenges the factual basis for the offense of

aggravated assault, which is defined as follows:      “A person is guilty of

aggravated assault if he attempts to cause serious bodily injury to another

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or causes such injury intentionally, knowingly or recklessly under the

circumstances manifesting extreme indifference to the value of human life.

18 Pa.C.S.A. § 2702(a)(1).”    Commonwealth v. Smith, 956 A.2d 1029,

1036 (Pa. Super. 2008).

      A person acts recklessly with respect to a material element of an
      offense when he consciously disregards a substantial and
      unjustifiable risk that the material element exists or will result
      from his conduct. The risk must be of such a nature and degree
      that, considering the nature and intent of the actor’s conduct
      and the circumstances known to him, its disregard involves a
      gross deviation from the standard of conduct that a reasonable
      person would observe in the actor’s situation.

18 Pa.C.S. § 302(b)(3). “The circumstances showing intent to cause serious

bodily injury apply with equal force to prove recklessness to a degree that

one would reasonably anticipate serious bodily injury as a likely and logical

result.”   Smith, 956 A.2d at 1037 (citing Commonwealth v. Bruce, 916

A.2d 657, 663–664 (Pa. Super. 2007)).         “Direct proof of [an a]ppellant’s

subjective thought process is unnecessary, because the Commonwealth

may prove its case through circumstantial evidence.”        Id. at 1037–1038

(citation omitted).

      The trial court expressly relied on the testimony of Detective Weaver

and Ms. Keppler “to form a factual basis for the entrance of the guilty plea in

this matter.”   N.T. (Plea), 6/5/12, at 40.   In response to the prosecutor’s

questioning, Ms. Keppler answered affirmatively that Appellant caused

serious bodily injury to S.T.; that S.T. did not have any physical or mental

problems prior to this incident; that S.T. cannot eat or move by herself, and

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she cannot speak; that Appellant endangered S.T.’s welfare by inflicting

serious bodily injury to S.T.; that Appellant acted knowingly or recklessly

when he inflicted the trauma upon S.T., but not intentionally as far as the

consequences of the injuries to S.T.. Id. at 8–13.

     Detective Weaver testified as follows:

           Well, my investigation began at Children’s Hospital where
     [S.T.] had been taken. I then interviewed the emergency room
     doctor at Conemaugh Hospital. I interviewed the pediatrician to
     ascertain if there [were] any preexisting conditions. The ER
     doctor at Conemaugh told me he felt it was a child abuse case.

           Then when the child was at Children’s, they ran the tests,
     and due to the findings they found, they agreed that it was a
     physical trauma case, an abuse case, shaken baby case.

            I interviewed the mom, her aunt, another lady that was
     with them on the day that this happened, September 21 st of
     2009. Basically the information I had was about noon they left
     [Appellant] with [S.T.] and when they left, [S.T.] was finishing
     up a bottle. [Appellant] was holding her. And they were taking
     [Ms. Keppler’s] sister back to the airport to fly back home. They
     didn’t return home until about 4:00 in the afternoon. When they
     returned home, [S.T.] was limp. She was unresponsive. And at
     that point they took her to the emergency room at Conemaugh.

            And then the diagnosis began. And due to the fact that
     from the information I received from Children’s Hospital that the
     doctor said that if [S.T.] was drinking a bottle at noon, this
     injury had not occurred yet because she wouldn’t have been able
     to drink a bottle because it was such a severe injury.

           And both [Appellant’s] statement and the statement of
     [Ms. Keppler], [that] he was feeding her a bottle when they left
     [indicate that] . . . she was able to drink the bottle. The doctor
     advised me that . . . the fact they came home at four and she
     was in an unresponsive condition, and the fact that [Appellant]
     told me that he was alone with the baby from noon to four, no
     one else was there, based on these facts I filed the criminal
     charges.

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                                   * * *

           The medical people did not advise me of any preexisting
     conditions.

                                   * * *

           [Appellant] said that he was alone with the baby sitting on
     the couch in the living room. He said that he had finished giving
     [S.T.] her bottle and burped her. Laid down on the couch with
     [S.T.] on top of him laying [sic] on his chest. The baby fell
     asleep and [Appellant] put her in the rocker. About 3:00 p.m.
     she woke up fussy. He changed her diaper and she was still
     fussy. Then he tried to feed her and she was still fussy.
     [Appellant] said that he then put her on his lap and she was
     laying [sic] on her back with her head at his knees and her feet
     at his waist. He said that he plays a game with her and would
     pump her arms up and down and say “choo choo”. He said that
     he started doing this.

           At this point of the interview he began to cry and said, I
     just wanted to wake her up. I was freaking out. He said that he
     grabbed her by her forearms and shook her while she was on his
     lap.   He was just trying to wake her up. [Appellant] said first
     that he shook her too hard, then he said he might have shaken
     her too hard. And then I asked him if her head was moving back
     and forth, and he said, a little but not a lot. He said he never
     picked her up and shook her. He said, I was doing “choo choo,”
     and it was probably too hard.

N.T. (Plea), 6/5/12, at 18–19, 47–48.

     Although the PCRA court did not specifically address Appellant’s

second IAC claim in its decision, it concluded that counsel “did everything

possible that he could as a defense attorney to protect the best interests of

[Appellant]” and “it did everything possible to protect the rights of

[Appellant] and make sure his plea of guilty was freely, knowingly,




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intelligently, and voluntarily made.”     PCRA Court Opinion, 5/24/14, at 20.

We agree.

     Detective    Weaver’s    and   Ms.    Keppler’s   testimony,   along   with

Appellant’s incriminating statements, provide a sufficient factual basis to

support the mens rea element of aggravated assault—that Appellant acted

knowingly or recklessly when he played a game of “choo choo” with his

three-week-old daughter that, by his own admission, was “too hard.” N.T.

(Plea), 6/5/12, at 8–13, 18–19, 47–48. Appellant consciously disregarded a

substantial and unjustifiable risk that his conduct would result in serious

bodily injury to S.T.     Thus, because Appellant’s underlying claim of an

insufficient factual basis lacks merit, we conclude that counsel was not

ineffective in advising Appellant to enter a guilty plea to the charge of

aggravated assault.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary


Date: 4/10/2015




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