Com. v. Berrena

• Decision Date: 16 November 1992
• Citation: 421 Pa.Super. 247,617 A.2d 1278
• Parties: COMMONWEALTH of Pennsylvania v. Timothy S. BERRENA, Appellant.
• Court: Pennsylvania Superior Court

Page 1278

617 A.2d 1278

421 Pa.Super. 247

COMMONWEALTH of Pennsylvania v. Timothy S. BERRENA, Appellant.

Superior Court of Pennsylvania.

Argued June 4, 1992.

Filed Nov. 16, 1992.

Edward S. Blanarik, Jr., State College, for appellant.

Mark S. Smith, Asst. Dist. Atty., Bellefonte, for Com., appellee.

Before MONTEMURO, KELLY and CERCONE, JJ.

MONTEMURO, Judge.

This is an appeal from judgments of sentence entered following appellant's conviction on several counts of simple assault ¹ and recklessly endangering another person. ² On appeal, appellant, Timothy Berrena, raises the following nine issues for our review:

1. Should the criminal informations have been dismissed for failure to specify the dates and times of the alleged offenses?

2. Should the court have granted a change of venue or venire?

3. Did the court err by permitting Commonwealth witnesses to testify concerning statements allegedly made by appellant?

4. Did the court err by permitting the cumulative testimony of a Commonwealth witness?

5. Was the Commonwealth's expert witness qualified to offer expert testimony and opinion relative to the causing of serious bodily injury by the ingestion of either vomit or urine?

6. Did the court err by denying appellant's demurrers to the charges of recklessly endangering another person?

7. Were the verdicts contrary to the evidence and to the weight of the evidence?

8. Does the offense of simple assault merge with the offense of recklessly endangering another person for the purpose of sentencing?

9. Did imposition of the maximum sentence provided by law constitute an abuse of discretion?

After a thorough review of the record, we affirm in part and vacate in part the judgments of sentence.

The criminal charges filed against appellant arose out of his reprehensible treatment of various residents of the State College Manor Nursing Home ("Home"). According to testimony presented at trial, appellant was employed by the Home as a nurse's aide. As one of his responsibilities, appellant assisted in the feeding of the Home's debilitated residents. Unfortunately, appellant violated his position by abusing the individuals entrusted into his care.

At some point during an evening meal, one of residents became ill and vomited into a basin. Appellant removed a spoonful of vomit from the basin and fed it to a feeble elderly woman. During another meal, appellant offered a resident a cupful of her own infected urine. Only the intervention of another staff member prevented the women from drinking the urine.

On two separate occasions, appellant fed jalopena peppers to a resident afflicted with Alzheimer's disease. On the second occasion, appellant used physical force to keep the resident from disgorging the peppers. In addition to these acts, appellant threatened a co-worker with a knife. Appellant was subsequently arrested and charged with numerous counts of aggravated assault ³, simple assault, recklessly endangering another person, and harassment. ⁴

After a jury trial, appellant was found guilty on four counts of simple assault and four counts of recklessly endangering another person. Motions for a new trial and in arrest of judgment were filed and denied by the trial court. Appellant was then sentenced to a minimum period of incarceration of four years and a maximum period of eight years. ⁵ This appeal followed.

Upon review of the trial court's opinion and order of August 14, 1990, we find that the trial court's opinion adequately addresses the first four issues and the sixth and seventh issues raised by appellant. Therefore, these issues do not warrant review by this court and we affirm those issues on the basis of the trial court's opinion. ⁶

The fifth issue raised by appellant challenges the trial court's decision to allow a doctor, who is certified in the fields of psychiatry and neurology, to testify as an expert on the effects of ingesting vomit and urine. When we review such a challenge, we are bound by several well established principles.

"The determination of whether a person is qualified as an expert in this particular field is left to the discretion of the trial judge. Furthermore, that determination is based solely on whether their opinion will aid the trier of fact in finding the truth of the issues involved." Commonwealth v. Young, 524 Pa. 373, 389, 572 A.2d 1217, 1225 (1990) (citations omitted). And, we will not reverse such a determination absent a clear abuse of discretion. Commonwealth v. Echevarria, 394 Pa.Super. 261, 266, 575 A.2d 620, 623 (1990).

Here, the trial court allowed a psychiatrist to give expert testimony as to the effects of ingesting vomit or urine. Although the expert was not certified in either internal medicine or gastroenterology, he did have an understanding of these areas, as would any other physician. Under Pennsylvania law, a physician is competent to testify as an expert in a field outside of his own specialty. Commonwealth v. Owens, 321 Pa.Super. 122, 127, 467 A.2d 1159, 1162 (1983). Thus, once the Commonwealth's expert attested to his specialized knowledge, the trial court acted within its discretion when it found that the witness was qualified to testify. Accordingly, we affirm the trial court's determination.

The eighth issue raised by appellant asserts that the offenses of recklessly endangering another person and simple assault merge for sentencing purposes. After a review of the relevant caselaw, we agree.

The doctrine of merger applies when one crime 'necessarily involves' another. Commonwealth ex. rel. Moszczynski v. Ashe, 343 Pa. 102, 21 A.2d 920 (1941), Commonwealth v. Olsen, 247 Pa.Super. 513, 372 A.2d 1207 (1977). It is also well settled that for one crime to necessarily involve another, the essential elements of one must be the essential elements of the other. Commonwealth v. Olsen, supra, Commonwealth v. Farmer, 244 Pa.Super. 334, 368 A.2d 748 (1976). That is, if no additional facts are needed to prove the additional offense, it merges into the primary offense for sentencing purposes. Only one sentence may thereafter be imposed. See Commonwealth v. Nelson, 452 Pa. 275, 305 A.2d 369 (1973), Commonwealth v. Cox, 209 Pa.Super. 457, 228 A.2d 30 (1967), Commonwealth v. Turner, 265 Pa.Super. 486, 402 A.2d 542 (1979).

Commonwealth v. Eberts, 282 Pa.Super. 354, 357-358, 422 A.2d 1154, 1155-56 (1980).

After applying the appropriate analysis, this court has found that the crimes reckless endangering another person and simple assault merge. Commonwealth v. Cavanaugh, 278 Pa.Super. 542, 546, 420 A.2d 674, 676 (1980). See also Commonwealth v. Channell, 335 Pa.Super. 438, 445, 484 A.2d 783, 786 (1984). The Commonwealth does not attempt to distinguish Cavanaugh, supra, but rather requests that we simply ignore its holding. This panel does not have the power to ignore controlling authority.

Appellant claims that because the sentences merge, he is entitled to have the case remanded for resentencing. However, "[w]here a case requires a correction of sentence, this court has the option of either remanding for resentencing, or amending the sentence directly." See Commonwealth v. Eberts, 282 Pa.Super. at 359, 422 A.2d at 1156. As appellant concedes, all of the sentences for reckless endangerment run concurrently with the sentences for simple assault. Thus, the aggregate sentence is not changed by merging the sentences. As such, a remand is not necessary. Instead we will vacated the concurrent sentences for reckless endangering another person. ⁷

Finally, appellant asserts that under the facts of this case, the sentencing court's imposition of the maximum sentence provided by law constitutes an abuse of discretion. ⁸ Appellant asserts that the sentencing court failed to consider all mitigating circumstances and did not provide on the record a sufficient reason to justify the sentence. This issue implicates the discretionary aspects of sentencing and we will only address the merits of this claim if a review of the record and the trial court's opinion convinces this court that a substantial question exists as to whether appellant's sentence is inappropriate. Commonwealth v. Dotzman, 403 Pa.Super. 325, 588 A.2d 1312 (1991). The trial court had the benefit of a presentence report and did articulate reasons, on the record, explaining the sentence imposed. Commonwealth v. Devers, 519 Pa. 88, 546 A.2d 12 (1988) (presumes trial court was aware of and considered contents of presentence report). Specifically, the trial court stated:

I've considered the presentence report and incorporate the same into the record as part of the reason for my sentence in your case. I considered materials submitted by your counsel, statements made by your counsel, the letters of reference submitted by your counsel, plus the additional two or three that I received ...

I've considered your education, character, background, your prior criminal record. Although it is minimal, it is for a simple assault...