J-S62006-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

CHRISTOPHER LYNN SCHENCK

                            Appellant                No. 1702 MDA 2015


             Appeal from the Judgment of Sentence June 30, 2015
               In the Court of Common Pleas of Lycoming County
              Criminal Division at No(s): CP-41-CR-0000452-2010
                                         CP-41-CR-0001148-2013
                                          CP-41-CR-0001294-2010


BEFORE: GANTMAN, P.J., DUBOW, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                          FILED AUGUST 30, 2016

       A jury found Christopher Schenck guilty of aggravated assault on a

three-year-old child, graded as a first degree felony, and endangering the

welfare of a child, graded as a third degree felony.1 On June 30, 2015, the

trial court sentenced Schenck to an aggregate term of 11-27 years’

imprisonment. Schenck filed timely post-sentence motions, which the court

denied on September 3, 2015. On October 2, 2015, Schenck filed a timely

notice of direct appeal.       Both Schenck and the trial court complied with

Pa.R.A.P. 1925. We affirm.
____________________________________________


1
  18 Pa.C.S. §§ 2702(a)(1) and 4304(a)(1), respectively. The jury also
found Schenck guilty of simple assault and reckless endangerment, but the
court merged Schenck’s sentences on these charges with his sentences for
aggravated assault and endangering the welfare of a child.
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      Schenck raises three issues in this appeal:

      1. Whether the evidence presented at trial was sufficient to
      prove beyond a reasonable doubt that [Schenck] caused the
      injuries to the victim, to wit, extensive bruising and a subdural
      hematoma?

      2. Whether the evidence presented at trial was sufficient to
      prove beyond a reasonable doubt that the injuries to the victim
      occurred during the period of time wherein the victim was
      alleged to be in the sole custody of [Schenck]?

      3. Whether the jury's verdict of guilty beyond a reasonable doubt
      as to count 1 (aggravated assault), count 2 (endangering the
      welfare of children), count 3 (simple assault of a child), and
      count 4 (recklessly endangering another person), was contrary
      to the weight of evidence presented at trial?

Brief For Appellant, at 6.

      Schenck’s first two arguments challenge the sufficiency of the

evidence. When examining a challenge to the sufficiency of evidence, our

standard of review is as follows:

         The standard we apply in reviewing the sufficiency of the
         evidence is whether viewing all the evidence admitted at
         trial in the light most favorable to the verdict winner, there
         is sufficient evidence to enable the fact-finder to find every
         element of the crime beyond a reasonable doubt. 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


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        record must be evaluated and all evidence actually
        received must be considered. Finally, the [trier] of fact
        while passing upon the credibility of witnesses and the
        weight of the evidence produced, is free to believe all, part
        or none of the evidence.

Commonwealth v. Hansley, 24 A.3d 410, 416 (Pa.Super.2011).

     The trial court accurately summarized the evidence of record in its

opinion denying post-sentence motions:

     There were no eyewitnesses to the assault on the minor victim.
     The Commonwealth’s entire case was based on circumstantial
     evidence.

     On June 2, 2013, Officer Brian Fioretti of the Tiadaghton Police
     Department responded to an apartment in Jersey Shore for an
     unresponsive three year old male. Upon the officer’s arrival to
     the scene, he found the victim unresponsive on the floor with no
     clothes on. The officer observed multiple bruises all over the
     victim’s body including his legs, thighs, face, buttocks, back,
     arms and neck. He also observed fresh bruises on the child’s
     right cheek and eye.

     Officer Fioretti was advised by [Schenck], who was the caretaker
     of the child, that approximately an hour and a half earlier, the
     child was in the tub and had slipped and had hit his head.
     [Schenck] explained that this incident is what caused the bruises
     to the eye and face. The other bruises, according to [Schenck],
     were caused when the child fell while engaged in other activities
     such as fishing. The mother of the child, who was living with
     [Schenck] and the victim, had left the apartment for work earlier
     that morning at approximately 5:30 a.m. The child was sleeping
     soundly and the evening before when she gave him a bath, he
     did not have nearly as many of the bruises that were found on
     his back, face, shoulders, legs, thighs and head on June 2, 2013.

     According to the mother, [Schenck] was the sole caretaker of
     her son. They did not use physical discipline on him. On the
     morning of the incident, [Schenck] contacted her and told her
     that her son had fallen in the tub and hit his cheek. [Schenck]
     explained that the child had placed a cup in the kitchen sink and
     was running from the kitchen into the living room when he


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      tripped and fell over the threshold strip onto his face. Initially,
      the child was okay but shortly afterwards he became
      unconscious and unresponsive.

      On the morning of the incident, the downstairs neighbors heard
      noises at approximately 7:00 a.m. which woke them up. The
      noises went on for approximately one and a half hours at
      different intervals. Eventually, they heard a loud ‘thud’ like a
      ‘refrigerator’ falling. After that, they heard some whimpering and
      then ‘nothing else.’

      The child was eventually flown from Jersey Shore Hospital to
      Geisinger Medical Center in Danville, Pennsylvania. He was
      examined by numerous physicians and eventually placed in the
      Intensive Care Unit. Dr. Paul Bellino of the Pediatric Intensive
      Care Unit and a specialist in child abuse testified that the injuries
      were not consistent with the mechanisms which [Schenck]
      indicated and that they were consistent with physical abuse. He
      observed countless contusions on the victim with the majority of
      the contusions being new along with some older contusions. He
      testified that there was swelling on the victim’s brain from a
      subdural hematoma, which most likely caused him to be
      unconscious, if not immediately, shortly after the injury
      occurred. He testified that the majority of the contusions were
      fresh contusions and not old contusions. He testified that these
      injuries are ‘definitely consistent with that of physical abuse.’ He
      ruled out any other type of condition which could have caused
      these injuries. He also ruled out that the injuries could have
      been self-inflicted by the victim or caused by the falling on the
      carpet as apparently explained by [Schenck].

Opinion and Order Denying Post-Sentence Motions, at 2-4. The trial court

provided additional details about the evidence in its Pa.R.A.P. 1925 opinion:

      Leigh McCarty, the victim’s mother, testified that during the date
      in question, she was living in her second floor apartment with
      [Schenck] and her son. When she was at work, her son was
      watched by [Schenck].

      On Saturday night, the night before the victim was taken to the
      hospital and his very serious injuries were discovered, she gave
      him a bath and put him to bed at approximately 10 or 10:30
      p.m. The next morning she got up at around 5:00 a.m. and left

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      the apartment to go to work. When she left, the only two people
      in the apartment were [Schenck] and her son.

      Ms. McCarty was shown numerous photographs of injuries to the
      child. She testified that the vast majority of them, and all of the
      very serious injuries, did not appear on her son when she gave
      them the bath the night before but were present when she next
      saw him in the hospital late Sunday afternoon or early evening.
      While she was at work, [Schenck] was ‘watching’ the minor
      child. [Schenck] had been doing this a while after he initially
      offered to take care of the child.

      Following her becoming aware of the injuries to her son, she
      confronted [Schenck]. [Schenck] specifically stated that the
      child suffered the injuries because he tripped coming from the
      kitchen into the living room and fell and hit his head. In fact,
      [Schenck] spoke with Brian Fioretti of the Tiadaghton Valley
      Regional Police Department admitting that he was watching the
      minor child and explained that the bruising and injuries were
      either caused by some sort of medical condition or when the
      child went out to the kitchen, came back and tripped through the
      doorway.

      [Schenck] told somewhat of a different story to Brady Breon, a
      paramedic. [Schenck] told Mr. Breon that he was watching the
      child and that the child had fallen earlier in the day in the
      bathtub and most recently tripped over the carpet strip and fell
      and stuck his head. This history was also provided by the
      [Schenck] to medical personnel at Geisinger Medical Center.

Pa.R.A.P. 1925 Opinion, at 3-4.

      In his first argument, Schenck contends that the evidence is

insufficient to demonstrate that he caused the victim’s injuries.           We

disagree. Construed in the light most favorable to the Commonwealth, the

evidence clearly demonstrated that Schenck caused the victim’s injuries.

The trial court correctly reasoned:

      [T]here was clearly sufficient evidence to prove that it was
      [Schenck] who caused the injuries to the minor child. The minor

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     child did not have the injuries prior to being in [Schenck]’s sole
     care. The downstairs neighbors heard activity in the apartment
     consistent with an assault of the minor child. [Schenck]’s
     explanation as to how the injuries occurred was inconsistent
     and, in fact, contrary to the physical findings, and the expert
     testimony regarding the mechanism of the injuries was that of
     physical abuse. Indeed, the evidence was overwhelming against
     [Schenck]. The child certainly did not inflict the injuries on
     himself, and the child did not have any medical condition that
     could have explained the injuries. The child was in the sole care
     of [Schenck]. The child was fine when the mother left. When the
     police arrived, however, the child was unconscious, had suffered
     a subdural hematoma, and had fresh bruising all over his body.

Opinion and Order Denying Post-Sentence Motions, at 5.

     In his second argument, Schenck contends that there was insufficient

evidence to demonstrate that the injuries to the victim occurred during the

period of time wherein the victim was in his sole custody.     We disagree.

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

clearly demonstrated that the victim’s injuries took place while he was in

Schenck’s sole custody. The evidence demonstrates that the victim was fine

when the mother departed for work and left the victim in Schenck’s sole

custody. When the police arrived later that day, the victim was unconscious,

had suffered a subdural hematoma, and had fresh bruising all over his body.

     In his final argument, Schenck contends that the verdicts on all counts

was contrary to the weight of the evidence. We disagree.

     The denial of a new trial based on a lower court’s determination that

the verdict was not against the weight of the evidence is one of the least

assailable reasons for granting or denying a new trial. Commonwealth v.


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Clay, 64 A.3d 1049, 1055 (Pa.2013).              This Court reviews weight of the

evidence claims pursuant to the following standard:

       A motion for new trial on the grounds that the verdict is contrary
       to the weight of the evidence, concedes that there is sufficient
       evidence to sustain the verdict. Thus, the trial court is under no
       obligation to view the evidence in the light most favorable to the
       verdict winner. An allegation that the verdict is against the
       weight of the evidence is addressed to the discretion of the trial
       court. A new trial should not be granted because of a mere
       conflict in the testimony or because the judge on the same facts
       would have arrived at a different conclusion. A trial judge must
       do more than reassess the credibility of the witnesses and allege
       that he would not have assented to the verdict if he were a
       juror. Trial judges, in reviewing a claim that the verdict is
       against the weight of the evidence do not sit as the thirteenth
       juror. Rather, the role of the trial judge is to determine that
       notwithstanding all the facts, certain facts are so clearly of
       greater weight that to ignore them or to give them equal weight
       with all the facts is to deny justice.

Commonwealth v. Widmer, 744 A.2d 745, 751-52 (Pa.2000) (internal

citations, quotations, and footnote omitted).

       Stated differently, a court may award a new trial because the verdict is

against the weight of the evidence only when the verdict is so contrary to

the evidence as to shock one’s sense of justice,2 “such that right must be

____________________________________________


2
 This Court has explained the notion of “shocking to one’s sense of justice”
as follows:

       When the figure of Justice totters on her pedestal, or when the
       jury’s verdict, at the time of its rendition, causes the trial judge
       to lose his breath, temporarily, and causes him to almost fall
       from the bench, then it is truly shocking to the judicial
       conscience.

(Footnote Continued Next Page)


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given another opportunity to prevail.” Commonwealth v. Goodwine, 692

A.2d 233, 236 (Pa.Super.1997).             Moreover, appellate review of a weight

claim consists of a review of the trial court’s exercise of discretion, not a

review of the underlying question of whether the verdict is against the

weight of the evidence.         Widmer, 744 A.2d at 753.          When reviewing the

trial court’s determination, this Court gives the gravest deference to the

findings of the court below. We review the court’s actions for an abuse of

discretion. Id.

      Schenck insists that the evidence was contradictory because the

Commonwealth’s expert testified              that the   “colors   were   off”   on the

photographs that he used to identify the victim’s bruises. Schenck ignores

the overwhelming evidence marshaled against him which proves that he

assaulted the three-year-old victim and caused injuries so severe that the

victim nearly died. The trial court properly rejected Schenck’s challenge to

the weight of the evidence.

      Judgment of sentence affirmed.




                       _______________________
(Footnote Continued)

Commonwealth v. Davidson, 860 A.2d 575, 581 (Pa.Super.2004)
(internal citations and quotations omitted).



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/30/2016




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