Com. v. Ogin

• Decision Date: 11 April 1988
• Citation: 373 Pa.Super. 116,540 A.2d 549
• Parties: COMMONWEALTH of Pennsylvania v. Debby OGIN, Appellant. COMMONWEALTH of Pennsylvania v. Glynn WILDONER, Appellant.
• Court: Pennsylvania Superior Court

Page 549

540 A.2d 549

373 Pa.Super. 116

COMMONWEALTH of Pennsylvania v. Debby OGIN, Appellant.

COMMONWEALTH of Pennsylvania v. Glynn WILDONER, Appellant.

Superior Court of Pennsylvania.

Argued Nov. 9, 1987.

Filed April 11, 1988.

Albert J. Flora, Jr., Wilkes-Barre, for appellants.

Joseph C. Giebus, Asst. Dist. Atty., Wilkes-Barre, for Com., appellee.

Before CIRILLO, P.J., and CAVANAUGH, BROSKY, ROWLEY, WIEAND, McEWEN, BECK, TAMILIA and POPOVICH, JJ.

BECK, Judge:

This is a consolidated appeal by a mother and father who were convicted by a jury and sentenced for using excessive force against their baby daughter. The issue is whether the evidence adduced at trial supports the jury verdict that appellants are guilty of simple assault ¹ and endangering the welfare of children. ² We find that the evidence is sufficient to establish appellants guilt, and we affirm.

Appellants' convictions were based on three separate incidents involving their daughter April. Viewed in the light most favorable to the Commonwealth as verdict winner, the facts are as follows.

One day during the summer of 1983, Commonwealth witness Ann Marie Blaine observed appellants' children April and Glynn Jr. playing outside the building where the family lived. At this time, Glynn Jr. was three years old and April was approximately seventeen months old. Glynn Jr. rode his Big Wheel down to the end of the block and April followed him. Appellant Debby Ogin ran after the children, told them to stay in front of the building, and slapped April on the rear end. Soon afterward, Glynn Jr. rode down an alley and April again followed him. Debby ran after the children and grabbed April. Blaine testified on direct examination:

A. Debby was dragging April.

Q. You say dragging. Can you describe for the jury what you mean by that?

A. She had her by the one arm and was dragging her. Her feet were touching the ground. She was stumbling to try to walk. And she flung her like an old rag doll against the building. She said, I told you to sit there.

Q. When you say she flung her against the building, please, describe to the jury exactly what Debby Ogin did to her daughter.

A. She had her by the arm. She come around the building with the child by the arm and she threw her up against the building by one arm.

Q. What part of April's body hit that building?

A. The whole back of her. And she--when she hit the building, she kind of stumbled over and hit the steps. And they're cement steps there.

....

Q. What happened after April had been thrown against the wall?

A. The child was screaming for quite a few minutes, and then Debby took her and put her inside the stairway and shut the door.

R. at 25-27. The witness also stated that she observed a small red mark that resembled a brushburn on the side of April's face.

The second incident occurred the following winter. On December 20, 1983, Debby Ogin took her children to see a Santa Claus at the local firehouse. They were accompanied by Audrey Wampole, a neighbor, and by Ann Marie Blaine. Wampole held April for the first hour they waited and then set her down. April approached her mother and gestured that she wanted to be picked up. Debby Ogin responded by slapping April with the back of her hand causing April to stumble. Ten minutes later, April approached her mother and reached out her arms to be picked up. Debby Ogin again hit April in the face with the back of her hand, this time with "extreme force". R. 34. April fell and hit her back against a brick wall. Afterward, Blaine noticed a lump on the back of the child's head.

The third incident took place in February, 1984, and involved Glynn Wildoner, April's father. Doris Whitmire, Mr. Wildoner's cousin, testified that she was with his family one evening at dinner time. She saw Debby Ogin take spaghetti off the stove and place it on a plate on the kitchen table. Glynn Wildoner moved the plate in front of April. When April did not eat it, Wildoner reached out, put his hand under the plate, and pushed the hot food up into the child's face. April began crying. Her face swelled and she sustained small burn marks which dissipated after a few days.

Appellants were tried by a jury empaneled by the Court of Common Pleas of Luzerne County. Ogin was convicted of two counts of simple assault and two counts of endangering the welfare of children, and was sentenced to two years probation. ³ Wildoner was convicted of one count of simple assault and one count of endangering the welfare of children and was sentenced to two years special probation consecutive to a sentence he was then serving for unrelated criminal conduct. This appeal followed.

Appellants allege that the jury verdict was based on insufficient evidence and was against the weight of the evidence in three respects. They contend that the evidence does not establish that they performed acts prohibited by the simple assault statute. They contend that the evidence does not establish that they knowingly violated the endangering the welfare of children statute. And they contend that the evidence does not establish that the force directed at April was anything other than a justifiable form of corporal punishment.

As we noted in Commonwealth v. Taylor:

... In reviewing the sufficiency of the evidence, we must view the evidence presented and all reasonable inferences taken therefrom in the light most favorable to the Commonwealth, as verdict winner. The test is whether the evidence, thus viewed, is sufficient to prove guilt beyond a reasonable doubt. The credibility of witnesses and the weight to be accorded the evidence produced are matters within the province of the trier of fact; the fact finder is free to believe all, some, or none of the evidence.

A motion for new trial on grounds that the verdict is contrary to the weight of the evidence concedes that there is sufficient evidence to sustain the verdict but contends, nevertheless, that the verdict is against the weight of the evidence. Whether a new trial should be granted on grounds that the verdict is against the weight of the evidence is addressed to the sound discretion of the trial judge, and his decision will not be reversed on appeal unless there has been an abuse of discretion. The test is not whether the court would have decided the case in the same way but whether the verdict is so contrary to the evidence as to make the award of a new trial imperative so that right may be given another opportunity to prevail.

324 Pa.Super. 420, 424-25, 471 A.2d 1228, 1229-30 (1984) (citations omitted). See also Commonwealth v. Pearsall, 368 Pa.Super. 327, ---, 534 A.2d 106, 108 (1987).

With this standard in mind, we review appellants' claims.

I.

We begin by considering appellants' challenge to their convictions for simple assault. Section 2701 of the Crimes Code provides that a person is guilty of assault if he "attempts to cause or intentionally, knowingly, or recklessly causes bodily injury to another...." Section 2301 of the Crimes Code defines bodily injury as "[i]mpairment of physical condition or substantial pain." Appellants argue that April's injuries were not sufficiently serious to support an inference that appellants either impaired her physical condition or caused her substantial pain. We disagree.

The existence of substantial pain may be inferred from the circumstances surrounding the use of physical force even in the absence of a significant injury. See Commonwealth v. Jorgenson, 341 Pa.Super. 550, 492 A.2d 2 (1985), rev'd on other grounds, 512 Pa. 601, 517 A.2d 1287 (1986). In Jorgenson, this court found that the act of twice striking the victim across the face was sufficient to support a conviction for simple assault. See also Commonwealth v. Bryant, 282 Pa.Super. 600, 608, 423 A.2d 407, 411 (simple assault occurred when assailant threw victim to the ground).

In the case sub judice, the jury was free to believe all of the testimony of Commonwealth witnesses Blaine and Whitmire. This testimony was internally consistent and there is no special reason to believe that it was particularly unreliable. In light of this testimony, one can infer that April suffered substantial pain from the fact: 1) that she was grabbed by the arm and flung against a building and then screamed for several minutes; 2) that she was struck in the face with extreme force causing her to fall against a wall; and 3) that she cried after having hot food shoved in her face. These incidents are serious matters; we are not dealing here with "temporary hurts resulting from trivial contacts which are a customary part of modern day living." Commonwealth v. Kirkwood, 360 Pa.Super. 270, 275, 520 A.2d 451, 454 (1987). Accordingly, appellants' argument that the Commonwealth failed to establish the elements of simple assault is without merit. Compare In re J.L., 327 Pa. Super. 175, 475 A.2d 156 (1984) (finding insufficient evidence of simple assault where sixteen year-old defendant pushed two-year-old nephew with elbow and nephew neither cried nor sustained any injury).

II.

Appellants also allege that they were improperly convicted of endangering the welfare of children. Section 4304 of the Crimes Code provides:

A parent, guardian, or other person supervising the welfare of a child under 18 years of age commits a misdemeanor of the second degree if he knowingly endangers the welfare of the child by violating a duty of care, protection or support.

Appellants contend that they did not fail to provide a duty of protection. We conclude that this argument is without merit. Section 4304 is a comprehensive provision designed to penalize those who knowingly breach a legal duty to protect the well-being of children who are entrusted to their care. See Commonwealth v. Cardwell, 357 Pa.Super. 38, 515 A.2d 311 (1986); Commonwealth v. Taylor. As we noted in Taylor:

The [Pennsylvania] Supreme Court has said that Section 4304 was drawn broadly to cover a wide range of conduct in order...