J-A17031-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    LINDA SHERRELL JONES,                      :
                                               :
                       Appellant               :      No. 1359 WDA 2017

            Appeal from the Judgment of Sentence August 10, 2017
              in the Court of Common Pleas of Allegheny County,
             Criminal Division at No(s): CP-02-CR-0013820-2015

BEFORE: OTT, J., KUNSELMAN, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                         FILED NOVEMBER 20, 2018

        Linda Sherrell Jones (“Jones”) appeals from the judgment of sentence

imposed following her conviction of aggravated assault of a victim less than

six years of age, and endangering the welfare of a child.1 We affirm.

        In 2014, Allegheny County Children, Youth, and Families (“CYF”)

became involved with Jones, her husband, Devlin Jones, and six of their

children, including five-year-old D.T. (“Child”). CYF was alerted to investigate

the family based on a tip that they were having trouble with housing. On a

routine home visit in April 2015, CYF observed unexplainable injuries to Child.

After Child was taken to a hospital to be evaluated, physicians observed linear

marks on Child’s back, buttocks, and legs that were indicative of physical

abuse. Subsequently, CYF reported the suspected abuse to Allegheny County


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1   See 18 Pa.C.S.A. §§ 2702(a)(8), 4304(a)(1).
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Police. On August 7, 2015, Jones was charged with aggravated assault of a

victim less than six years of age, and endangering the welfare of a child.

       In September 2015, CYF observed injuries to one of Child’s siblings.

Following a physical examination, CYF submitted a request for emergency

custody authorization (“ECA”)2 of Child and his siblings, which was granted.

Prior to placement in a foster home, Child was examined by physicians for

signs of physical abuse.       Physicians observed on Child healed wounds and

scars, which were previously visible during the April 2015 examination.

       After a non-jury trial on May 26, 2017, Jones was convicted of the

above-described charges. The trial court deferred sentencing and ordered a

pre-sentence investigation report (“PSI”).       Subsequently, the trial court

sentenced Jones to an aggregate term of nine to 18 months in prison, followed

by five years of probation. Thereafter, Jones filed a Post-Sentence Motion,

which the trial court denied. Jones filed a timely Notice of Appeal and a court-

ordered Pa.R.A.P. 1925(b) Concise Statement of matters complained of on

appeal.

       On appeal, Jones raises the following questions for our review:

       1. To prove that [Jones]’s use of corporal punishment with [Child]
       was not justifiable, the Commonwealth had to establish that the
       force [Jones] used was, among other things, designed to cause
       extreme pain or mental distress. It failed to do so. Did the trial
       court err in convicting [Jones] of [a]ggravated [a]ssault and

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2 An ECA is a procedure whereby CYF requests permission from a judge to
remove children from their home of origin and place the children in available
and appropriate foster homes.

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      [e]ndangering welfare of children stemming from her use of
      corporal punishment?

      2. In criminal trials[,] the proof offered by the Commonwealth
      must measure up to the charge made in the indictment. Here,
      the Information specifically alleged that the crime occurred
      between March 1 and April 30 of 2015. At trial, however, the
      Commonwealth failed to prove that the alleged crime occurred
      during this timeframe. Thus, the proof failed to measure up to
      the charge made in the indictment. Did the court err in convicting
      [] Jones?

Brief for Appellant at 4 (quotation marks omitted).

      In her first claim, Jones alleges that the Commonwealth failed to prove,

beyond a reasonable doubt, that her use of force was not justifiable. See id.

at 16-23. Jones concedes that she struck Child, but claims she justifiably did

so to punish misconduct. Id. at 19-20, 22-23. Jones claims that her use of

force was not designed to cause, or known to cause, a substantial risk of

causing death, serious bodily injury, disfigurement, extreme pain or mental

distress, or gross degradation. Id. Jones points out that Child did not sustain

serious bodily injury or injuries that could have resulted in a substantial risk

of death; Child did not testify that Jones’s use of force caused him extreme

pain or extreme mental distress; an examining doctor did not testify that Child

actually experienced extreme pain; and there was no evidence that Child

experienced psychological issues that could be tied to Jones’s use of force.

Id.; see also id. at 23 (arguing that the evidence failed to establish that the

scars on Child’s body are a result of Jones’s discipline).




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     When considering a challenge to the sufficiency of the evidence, we

ascertain

     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. In applying the above test, we may not weigh
     the evidence and substitute our judgment for the fact-finder. In
     addition, we note that the facts and circumstances established by
     the Commonwealth need not preclude every possibility of
     innocence. Any doubts regarding a defendant’s guilt may be
     resolved by the fact-finder unless the evidence is so weak and
     inconclusive that as a matter of law no probability of fact may be
     drawn from the combined circumstances. The Commonwealth
     may sustain its burden of proving every element of the crime
     beyond a reasonable doubt by means of wholly circumstantial
     evidence. Moreover, in applying the above test, the entire record
     must be evaluated and all evidence actually received must be
     considered. Finally, the finder of fact[,] while passing upon the
     credibility of witnesses and the weight of the evidence produced,
     is free to believe all, or part or none of the evidence.

Commonwealth v. Melvin, 103 A.3d 1, 39-40 (Pa. Super. 2014) (citation

omitted).

     18 Pa.C.S.A. § 509 states, in relevant part, as follows:

     § 509. Use of force by persons with special responsibility
     for care, discipline or safety of others

     The use of force upon or toward the person of another is justifiable
     if:

        (1) The actor is the parent or guardian or other person similarly
        responsible for the general care and supervision of a minor or
        a person acting at the request of such parent, guardian or other
        responsible person and:

            (i) the force is used for the purpose of safeguarding or
            promoting the welfare of the minor, including the preventing
            or punishment of his misconduct; and



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            (ii) the force used is not designed to cause or known to
            create a substantial risk of causing death, serious bodily
            injury, disfigurement, extreme pain or mental distress or
            gross degradation.

18 Pa.C.S.A. § 509(1); see also Commonwealth v. Ogin, 540 A.2d 549,

554 (Pa. Super. 1988) (stating that Section 509 represents a compromise

between a parent’s right to use corporal punishment and the need for “limits

regarding the type and severity of the corporal punishment which a parent

may impose.”). Additionally, “Section 509(1)(i) and (ii) involve independent

requirements and appellants are not entitled to a justification defense unless

they complied with both standards.” Ogin, 540 A.2d at 554.

      For purposes of Section 509, “[t]he term ‘extreme’ is synonymous with

excessive. [Therefore, Section 509] simply says pain inflicted as a result of

discipline must not be excessive. The punishment must be justifiable and fit

the misconduct. Excessive discipline is contrary to the welfare of the child,

even when discipline is justifiable.” Commonwealth v. Douglass, 588 A.2d

53, 56 (Pa. Super. 1991); see also Ogin, 540 A.2d at 555 (stating that “a

defendant’s actions are not legally justified simply because he may sincerely

believe that the best way of safeguarding or promoting a child’s welfare is to

inflict a cruel and patently excessive punishment.”). “[W]hen applying the

justification statute, the court should focus not only on the degree of force

exerted by the parent but also on the age and the physical and mental

condition of the child who has been disciplined.” Ogin, 540 A.2d at 555. The

Commonwealth bears the burden of proof to show, beyond a reasonable

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doubt, that the defendant is not entitled to a justification defense.      See

Douglass, 588 A.2d at 56; see also 18 Pa.C.S.A. § 502 (stating that “[i]n

any prosecution based on conduct which is justifiable under this chapter,

justification is a defense.”).

       Here, Child testified that on multiple occasions, Jones beat him on his

buttocks and legs with an electrical cord and a clothes hanger.      See N.T.,

5/26/17, at 22-23, 34, 39, 41, 44. Child stated that the lashings were painful

and left “scratches.”3 Id. at 23-24; see also id. at 41 (wherein Child indicated

he was hit with his shirt off). Child stated that he was hit because he would

get food out of the refrigerator without permission. Id. at 30-31.

       Adelaide Eichman, M.D. (“Dr. Eichman”), a pediatrician and child

advocacy physician, testified that she reviewed photographs from Child’s April

2015 hospital visit and, in September 2015, conducted a physical examination

of Child. See N.T., 3/31/17, at 15-16, 39-40. Regarding her review of the

April 2015 photographs, Dr. Eichman stated that Child had “multiple inflicted

marks on his body,” including linear marks on his back, a healed scar on his

left buttock, and a scar on his upper left arm.” Id. at 41. Dr. Eichman opined

that “there is [no] accidental way to get” the type of linear marks made on

the Child. Id. at 12. Dr. Eichman concluded that Child “had been physically

abused multiple times,” through the use of an implement.        Id. at 12, 41,


____________________________________________


3 Child stated that although his dad also hit him, it did not leave marks. Id.
at 41.

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48-49; see also id. at 16 (wherein Dr. Eichman stated that Child had been

“a victim of physical abuse on more than one occasion.”).

      Kaitlyn Leo (“Leo”), a caseworker with CYF, testified that she observed

injuries indicative of abuse on Child when CYF removed Child from Jones’s

home on September 22, 2015. See N.T., 5/26/17, at 88. Leo also stated

that Child exhibited signs of being underfed. See id. at 93 (stating that after

being removed from Jones’s care, “[Child and his siblings] were gorging and

binging on food, stealing food and hiding it in their beds and in their

pillows[.]”); see also id. at 64-65 (stating that during one of CYF’s visits to

Jones’s home, “[t]here was little to no food in the home.”).

      Viewing the evidence in the light most favorable to the Commonwealth,

there was sufficient evidence to establish that the force exerted by Jones was

not undertaken for the purpose of safeguarding Child.            See 18 Pa.C.S.A.

§ 509(1)(i). Further, the punishment employed by Jones, striking Child, a

five-year-old boy, with an electrical cord and a hanger, was designed to cause

extreme pain, mental distress or gross degradation.          See id. § 509(1)(ii).

Therefore,   viewing   the   evidence    in   a   light   most   favorable   to   the

Commonwealth, we conclude that the Commonwealth introduced sufficient

evidence to reject Jones’s justification defense.

      In her second claim, Jones alleges that the evidence was insufficient to

prove that the alleged abuse occurred between the dates set forth in the

Information, March 1, 2015, to April 30, 2015. See Brief for Appellant at 24-


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33. Jones argues that the inaccuracy of the dates deprived her of sufficient

notice to prepare a defense, in violation of her right to due process as set forth

in the Sixth Amendment of the United States Constitution. Id. at 24-25, 29-

32. Jones claims that Child never gave dates for when he was abused; Dr.

Eichman did not identify an exact time period when the abuse occurred; and

Leo’s testimony, that Child told her he was abused in that time period, was

inadmissible hearsay, preserved by a proper objection on the record. Id. at

30-32.

            It is the duty of the prosecution to fix the date when an
      alleged offense occurred with reasonable certainty. The purpose
      of so advising a defendant of the date when an offense is alleged
      to have been committed is to provide him with sufficient notice to
      meet the charges and prepare a defense.

             However, due process is not reducible to a mathematical
      formula, and the Commonwealth does not always need to prove a
      specific date of an alleged crime. Additionally, indictments must
      be read in a common sense manner and are not to be construed
      in an overly technical sense. Permissible leeway regarding the
      date provided varies with, inter alia, the nature of the crime and
      the rights of the accused. …

            [T]he Commonwealth is not required to prove the single
      specific date of a crime in every instance, instead, any leeway
      would vary with the nature of the crime and the age and condition
      of the victim balanced against the rights of the accused.

Commonwealth v. Brooks, 7 A.3d 852, 858–59 (Pa. Super. 2010)

(citations, quotation marks, brackets, and ellipses omitted).

      Here, Child testified to continuous physical abuse. See N.T., 5/26/17,

at 22-24, 34, 39, 41, 44. Dr. Eichman testified that when Child was taken to

the hospital on April 17, 2015, “there were marks on his body that were

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suggestive of inflictive marks at that time.” N.T., 3/31/17, at 43. Leo testified

that Child had unexplained injuries in April 2015, and that she witnessed

injuries to Child in September 2015.        See N.T., 5/26/17, at 66-67, 88.

Viewing the evidence in the light most favorable to the Commonwealth, this

evidence established that the alleged crimes occurred between March 1 and

April 30, 2015. See Brooks, supra; see also Commonwealth v. Riggle,

119 A.3d 1058, 1070 (Pa. Super. 2015) (stating that the Commonwealth is

entitled to “broad latitude when attempting to fix the date of offenses which

involve a continuous course of criminal conduct.”). Further, Jones has not

specified how the alleged inaccuracy of the dates in the Information rendered

her unable to prepare a defense. See Brooks, 7 A.3d at 859 (stating that

“since the crimes allegedly occurred over a continuous period … [a]ppellant’s

ability to defend himself was less seriously encroached upon than it might

have been otherwise.” (brackets and citation omitted)). Accordingly, Jones’s

second claim is without merit.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/20/2018



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