Commonwealth v. Morrison
| Decision Date | 19 April 1979 |
| Citation | 401 A.2d 1348,265 Pa.Super. 363 |
| Parties | COMMONWEALTH of Pennsylvania v. Richard G. MORRISON, Appellant. COMMONWEALTH of Pennsylvania v. Florence MORRISON, Appellant. |
| Court | Pennsylvania Superior Court |
Submitted April 10, 1978. [Copyrighted Material Omitted]
Wilbert H. Beachy, III, Chief Public Defender Somerset, for appellant Richard G. Morrison.
Sandra W. Upor, Somerset, for appellant Florence Morrison.
Frederick F. Coffroth, Dist. Atty., Somerset, for Commonwealth appellee.
Before JACOBS, President Judge, and HOFFMAN, CERCONE, PRICE, VAN der VOORT, SPAETH and HESTER, JJ.
Appellants, Florence and Richard Morrison, were convicted of aggravated assault, [1] recklessly endangering another person, [2] and endangering the welfare of children, [3] at a non-jury trial in Somerset County. Appellants' motion for arrest of judgment was granted on the aggravated assault conviction. Additional motions for new trial were denied. Appellants were sentenced to undergo imprisonment for not less than nine months nor more than two years on the recklessly endangering charge, and not less than six months nor more than two years on the charge of endangering the welfare of children. The sentences are to run consecutively. It is from these judgments of sentence that appellants appeal. We affirm.
The appellants were married in 1974 and had six children residing in their home. Four of the children were Florence's by a prior marriage and two, including John, six years of age and the victim in this suit, were Richard's by his prior marriage. Richard's two children had resided with their maternal grandparents but were removed from that home when appellants heard John had been mistreated there. John came to live with appellants in February, 1976, with the other child following in April, 1976.
The day after appellants obtained custody of John, Florence Morrison took him for a physical examination. The doctor reported John was in general good health, slightly anemic and underweight, and getting over the chicken pox.
On May 31, 1976, appellants and all six children attended a Memorial Day picnic. John was playing under or near a picnic table when a ball struck some hot coffee that spilled on him. John's abdomen, penis, and part of his leg were burned by the hot liquid. A doctor examined John on June 2 and prescribed a salve to be applied to the burns. On June 7, after a return visit to the doctor, John's condition was found to be improving and required no further treatment. Some of the burns were second degree with scarring and scabbing, but there were no open wounds.
From the testimony presented, John developed a wetting problem about the time appellants obtained custody of his sister in April, 1976. Florence kept John in diapers in order to help with this situation. The diapering continued after the Memorial Day incident until July 28, 1976 when John was taken to the hospital for an elbow injury. During this time, Florence admitted putting table salt in John's diaper in an attempt to cure the wetting. She also applied the prescribed salve to the penis area with gauze on top, and on at least one occasion, secured the gauze by a rubber band for want of adhesive tape. One witness testified Florence had done this to prevent wetting which Florence denied. Mr. Morrison admitted he had diapered John several times during this period.
The physicians who testified concerning John's condition when he entered the hospital said John's penis was ulcerated and swollen with only a narrow opening, was scabbed and had been denuded of skin. According to the doctor, the cause of the condition was either from a second burn to the penis or from all the irritation from the diapers, salt, clothing, and John's scratching the area. The doctor testified that the incident involving the rubber band could also have aggravated the situation, and if tight enough, could have cut off the circulation. John was hospitalized for seven weeks [4] and the infection required surgery to remove the scabbing and clean the tissues. The urologist estimated that the infection had taken three to six weeks to develop and that death or loss of the organ could have ensued if John had not received medical attention. At the time of the trial, John had recovered from the infection but it could not be definitely stated whether there had been any permanent injury to the underlying erectile tissues. Appellants denied that they inflicted any type of injury upon John, but Mrs. Morrison admitted to a social worker that she had neglected the child by not taking him to a doctor sooner.
Aside from this incident, there was additional medical testimony and evidence of other bodily wounds on John, some old bruises and fractures, and healed body scars. One physician counted between fifty to sixty healed wounds including wounds that appeared to be from cigarette burns, scratches and scabbing. Most of these latter wounds appeared to be old.
Based on this evidence, the trial judge sitting without a jury found appellants guilty of aggravated assault, recklessly endangering another person, and endangering the welfare of children. Subsequently, arrest of judgment was granted on the charge of aggravated assault. On appeal, appellants raise three issues concerning the remaining two convictions: first, whether there is sufficient evidence to support the convictions of recklessly endangering another person and endangering the welfare of children; second, whether certain trial errors require a new trial; and third, whether their sentences are excessive. [5]
In addressing the first issue, the test of the sufficiency and the weight of the evidence is whether, accepting as true all of the Commonwealth's evidence and all reasonable inferences therefrom, the evidence is sufficient to prove beyond a reasonable doubt that the appellants are guilty of the crimes charged. Commonwealth v. Hamm, 474 Pa. 487, 378 A.2d 1219 (1977). Even when applying this test to the evidence, appellants contend there was not sufficient evidence to prove the elements of the crimes for which they were convicted. We disagree.
Appellants were convicted of recklessly endangering another person. The statute reads:
"A person commits a misdemeanor of the second degree if he recklessly engages in conduct which places or may place another person in danger of death or serious bodily injury." 18 Pa. C.S.A. § 2705.
Appellants argue their failure to take John to the doctor sooner was neither a "reckless" act nor did it place him in danger of serious bodily injury. Recklessly is defined in the statute as when an actor:
Appellants' argument that they were not aware of the risk of injury to Johnny's health by the diapering and treating of his wetting problem is unfounded. One does not need a medical expert to diagnose what was clearly a deteriorating physical condition in the child of which appellants were aware through the diapering process. Any reasonable person observing like circumstances could have been expected to seek medical treatment for the child as soon as the burns on his penis were no longer healing but beginning to swell and become infected. The evidence clearly supports a finding that the parents' failure to take the child to a doctor for a two-month period was a gross deviation from what the reasonable person would have done within the meaning of the statute. See Commonwealth v. Aurick, 342 Pa. 282, 19 A.2d 920 (1941); Lloyd v. Noakes, 96 Pa.Super. 164 (1929).
Appellants also contend their inaction did not place John in danger of death or serious bodily injury since he had recovered at the time of the trial. Serious bodily injury is defined as:
"(b)odily injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ." 18 Pa. C.S.A. § 2301.
In the instant case, the urologist testified that death or the loss of the organ could have occurred if the child had not been medically treated in time. Based on this testimony, appellants feel any "serious bodily injury" was merely conjecture. Under these circumstances we cannot agree. In Commonwealth v. Kibe, 258 Pa.Super. 353, 392 A.2d 831 (1978) a majority of our court upheld a conviction for aggravated assault where defendant struck his victim, causing her to fall to the ground and suffer a fractured nose. This, coupled with other actions of the defendant, was held sufficient to find the assailant attempted "serious bodily injury" on the victim. Commonwealth v. Alexander, 477 Pa. 190, 194, 383 A.2d 887, 889 (1978). See also Commonwealth v. Gregory, --- Pa.Super. ---, --- A.2d ---- (J.172/78, filed --/--/79). Also Commonwealth v. Painter, 32 Som. 115 (1976) quotes the comments from the Model Penal Code section from which § 2705 of our Crimes Code is adapted, stating:
" 'It (2705) does not require any particular person to be actually placed in danger, but deals with potential risks, as well as cases where a specific person actually is within the zone of danger.' " 32 Som. at 115.
In Painter as in Kibe, the creation of a potential danger was sufficient to uphold the convictions. Here, the evidence clearly supports such a holding. The complete disregard of the child's worsening condition caused the...
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