Com. v. Wallace

• Citation: 2002 PA Super 367,817 A.2d 485
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. John WALLACE, Appellant.
• Decision Date: 21 November 2002
• Court: Superior Court of Pennsylvania

817 A.2d 485

2002 PA Super 367

COMMONWEALTH of Pennsylvania, Appellee, v. John WALLACE, Appellant.

Superior Court of Pennsylvania.

Submitted July 22, 2002.

Filed November 21, 2002.

Reargument Denied December 30, 2002.

Charles A. Banta, Easton, for appellant.

James B. Martin, Assistant District Attorney, Allentown, for Commonwealth, appllee.

Before: LALLY-GREEN, BENDER and CAVANAUGH, JJ.

BENDER, J.:

¶ 1 John Wallace (Appellant) appeals from the judgment of sentence entered following his conviction at a bench trial of eight counts of endangering the welfare of children (EWOC). We affirm.

¶ 2 Based on the evidence presented, the trial court set forth the following recitation of the facts:

A review of the testimony presented at trial reveals that on November 30, 2000, Officer Ramon Rivera of the Allentown Police Department responded to 1714 West Tremont Street for a reported domestic disturbance. When he arrived, Officer Rivera encountered Faith Wallace, one of the defendant's teenage children, standing outside the home with a younger child, claiming that her mother, Margaret, would not stop spanking the child. Because it was windy and cold outside, Officer Rivera asked Faith if they could talk inside, and they entered the residence. Officer Rivera testified that he "was in for a surprise" when he entered the home, and said that he observed a very dirty home with young children everywhere, open containers of food, fleas, and flies. There was a foul odor in the air and the deteriorated roof, which was covered with a tarp had resulted in leaks that had caused most of the kitchen floor to rot away. Officer Rivera said that Mr. Wallace told him the roof had been leaking for five years. Because of the conditions he observed, Officer Rivera called Children and Youth Services¹ and a Housing Code Inspector to respond to the scene, and then continued to go through the house.

Officer Rivera testified that he went through the entire house, but that he had to go outside to get fresh air a few times because he "felt like vomiting" because of the foul odor. There were food and dirt stains on the walls and fleas and flies in the air. Officer Rivera indicated that "[t]here was food on the walls. Food on the ceilings. The kitchen was totally destroyed. The ceilings were gone. The floor was gone." Boxes were piled in all the rooms, and "[t]he stove had things stacked on top of it. The food inside [the refrigerator] was in a spoiled condition. The freezer was open. There was no door on it."

Joseph Holler, a Code Inspector for two years who had inspected hundreds of houses, responded to the scene and spent eight hours in the home on November 30, 2000 to determine if it was habitable. After working through a code checklist on that day and returning a few days later to follow up, Mr. Holler condemned the home, finding it uninhabitable. Mr. Holler testified that he based this decision on the residence's lack of a heating system, the poor structural condition of the home, and the unsanitary conditions.

Mr. Holler testified that the City of Allentown requires that the heating facility in a home "shall be capable of heating all habitable rooms and bathrooms to a temperature of 68 degrees." The furnace in the home was not working, and although the defendant had four or five portable heaters, the [C]ity of Allentown does not recognize space heaters as a means of heating a home. The defendant testified that the home was also equipped with electric baseboard heating, but Mr. Holler indicated that "because of the condition of the house, the way they had things stored in the house and boxes through the home... the baseboard heating would have been ineffectual in any case, most likely a fire hazard in my opinion." Mr. Holler also stated that the home did not have any smoke detectors, which the [C]ity of Allentown requires in the cellar and on each floor. There were also several plumbing fixtures in the home that did not work, including the kitchen faucet and a bathroom faucet.

Mr. Holler also testified that the [C]ity Code requires all walls to be in sound, smooth condition. He testified that the walls needed to be redone since they were cracked and covered with food. Pieces of the walls were also missing due to the water damage from the leaking roof. One quarter of the roof was missing "[a]nd everything had leaked down through the roof in the ceiling in the kitchen." There was also a water leak running into an electrical box in the basement, which Mr. Holler testified was a potential danger. The ceiling in the kitchen was almost totally gone, and there was also water damage in the living room and on the second floor in the children's bedroom. The floor was missing in the kitchen and "went down to the rafters of the ceiling in the basement." Mr. Holler testified that "[y]ou're essentially walking on [ ] the bottom half of a piece of plywood."

The unsanitary conditions of the home also led Mr. Holler to conclude that the home was unsafe and uninhabitable. He testified that there was food on the walls and ceilings, and tea bags were hanging from the ceilings. "[T]he home had an odor of stale and rotting food and a smell of being unclean. Bacteria in the air. That type of thing." Mr. Holler also indicated that there were flies, fleas and hundreds of mice in the home. The mice were "[a]ll through the house. Mainly in the living room and basement. There were nests all over the place."

Joshua Wallace, the defendant's fourteen year old son, testified that the residence at 1714 West Tremont Street was "Nasty. And really, really disgusting." Joshua said that not only were there flies, fleas and mice, but maggots were crawling on the ceiling. He also testified that there were mice in his bedroom, but they did not crawl on him since his bed was up high. Joshua's sister Faith slept in a "cubbyhole" under the stairs where she placed a board at the bottom of her door in an attempt to keep the mice out. Joshua testified that they set mice traps, but that his father said an exterminator would be too much money.

John Wallace, the defendant, took the stand and testified that the residence deteriorated because they had no money when their public assistance was denied on June 7, 2000. He indicated that there was a three-year waiting list for public housing and that he could not get HUD housing because his family was too large. Mrs. Wallace worked outside the home eighty (80) to one hundred (100) hours a week, but the defendant had not been employed since August or September of 1998 because of his health problems. Specifically, the defendant stated that he had "lyphadenopathy," a chronic-fatigue type condition which he has self-diagnosed. The defendant also indicated that he was not being treated by a doctor and had not ever received disability because of the condition. The defendant claimed that because of his health problems he could not resume his work as an inventor of high technology products for companies. The defendant testified that because of his condition, he spends most of his time lying in bed trying to get his energy back. He also testified that he spends time working at his computer defending himself in cases brought by the Allentown School District. He testified that he has two (2) Hewlitt [sic] Packard computers, two (2) ink jet color printers, two (2) color scanners, a fax machine and a laser printer, which he uses for his work related activities. Joshua Wallace indicated that his father would stay on the computer from 5 p.m. to 4 or 5 a.m.

The defendant stated that most of the damage to the home occurred in the spring of 2000 because of the condition of the roof. The landlord came to look at the home three to four times a year, but refused to repair the roof and the defendant couldn't afford to fix it. The defendant claimed that the leaks caused the mold growths in the bathrooms, and that they just couldn't keep up with the cleaning. He also testified that the mice came in through the broken basement windows that they could not afford to replace.

The defendant indicated that there was food on the walls because his children were "experimenting." He said that the children started flipping tea bags on to the ceiling and "they had a contest to see whose wet tea bag would stay there the longest." They ate in the living room, and the tea bag contest developed into throwing spoonfuls of food onto the ceiling. The defendant testified that he could not clean the messes up and that it was the children's responsibility to clean up after themselves. He also stated that cleaning tasks were assigned to the children, and that it was their responsibility to clean.

The defendant also testified that Mrs. Wallace cleaned the home, but that she was also taking care of the kids, home schooling them, doing five (5) loads of laundry a day, and working outside the home. Mrs. Wallace testified that she worked three jobs and cleaned all the time. The defendant drove her to work in a 1989 van they bought for $2000 with their tax return money to replace their former vehicle that did not have headlights. The defendant's cellular phone rang in the middle of his testimony, which he claimed to have in order for Mrs. Wallace to receive work related calls from her temporary agency.

Trial Court Opinion (T.C.O.), 4/23/02, at 1-7 (footnotes omitted)².

¶ 3 Based upon the above recitation of the facts and the rejection of Appellant's testimony regarding his disability,³ the trial court found Appellant guilty of eight counts of EWOC, and sentenced him to 36 months' probation.

¶ 4 On appeal to this Court, Appellant raises the following three issues for our review:

I. Was the evidence sufficient to sustain the guilty verdict to endangering the welfare of a child?

II. Did the Court err in entering inconsistent verdicts against two similarly situated defendants?

III. Did the Court err in allowing the opinion testimony of a trial witness without having first had the

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