Commonwealth v. Tharp

• Decision Date: 02 July 2003
• Citation: 574 Pa. 202,830 A.2d 519
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Michelle Sue THARP, Appellant.
• Court: Pennsylvania Supreme Court

830 A.2d 519

574 Pa. 202

COMMONWEALTH of Pennsylvania, Appellee, v. Michelle Sue THARP, Appellant.

Supreme Court of Pennsylvania.

Submitted February 22, 2002.

Decided July 2, 2003.

Reargument Denied September 4, 2003.

Glenn Alterio, for Michelle Sue Tharp.

John C. Pettit, Washington, Amy Zapp, Harrisburg, for Commonwealth of Pennsylvania,

Before CAPPY, C.J., and CASTILLE, NIGRO, NEWMAN, SAYLOR, EAKIN and LAMB, JJ.

OPINION

Justice CASTILLE.

This is a direct appeal from the sentence of death imposed on appellant by the Court of Common Pleas of Washington County.¹ We affirm.

Appellant's trial was originally listed for June 14, 1999. Approximately one week prior to the commencement of jury selection, however, appellant and her then-co-defendant Douglas Bittinger, Sr., filed requests to waive their rights to a jury trial. In response, the Commonwealth requested a jury trial pursuant to the 1998 amendment to Article I, Section 6 of the Pennsylvania Constitution.² The trial court granted the Commonwealth's request. Appellant and Bittinger appealed to this Court, which affirmed the trial court's order in a unanimous opinion. Commonwealth v. Tharp, 562 Pa. 231, 754 A.2d 1251, 1255 (2000) (holding that amendment to Article I, Section 6 was constitutional and that there was no impediment, constitutional or otherwise, to applying it in this case). Upon remand, appellant's case was severed from that of Bittinger, who testified against appellant at trial.³

On November 13, 2000, following a jury trial, appellant was convicted of first-degree murder,⁴ endangering the welfare of a child,⁵ and abuse of a corpse,⁶ arising from the starvation death of her dependent seven-year-old daughter, Tausha Lee Lanham. At the penalty phase, the jury found one aggravating circumstance: the victim was a child under twelve years of age.⁷ The jury also found two mitigating circumstances: that appellant had no significant history of prior criminal convictions,⁸ and the "catchall mitigator," i.e., any other evidence of mitigation concerning the character and record of appellant and the circumstances of her offense.⁹ The jury determined that the aggravating circumstance outweighed the mitigating circumstances and, accordingly, returned a sentence of death.¹⁰

Thereafter, the trial court formally imposed the sentence of death. In addition, the trial court sentenced appellant to a consecutive term of one to two years' imprisonment on the charge of abuse of a corpse. The trial court imposed no additional sentence for endangering the welfare of a child as that sentence merged for sentencing purposes with first-degree murder. Appellant filed post-sentence motions, which were denied by the trial court on June 13, 2001. This direct appeal followed, in which appellant raises six claims for relief.

Appellant first asserts that the evidence was insufficient to support a guilty verdict on the charge of first-degree murder. Specifically, appellant claims that the Commonwealth failed to prove that the starvation death of Tausha Lee Lanham resulted from a specific intent to kill. Even in the absence of a sufficiency challenge, this Court performs a self-imposed duty to review the sufficiency of the evidence underlying the first-degree murder conviction in all capital cases. See Commonwealth v. Zettlemoyer, 500 Pa. 16, 454 A.2d 937, 942 n. 3 (1982),

cert. denied, 461 U.S. 970, 103 S.Ct. 2444, 77 L.Ed.2d 1327 (1983). In reviewing the sufficiency of the evidence, the Court must determine whether the evidence admitted at trial, and all reasonable inferences drawn from the evidence in favor of the Commonwealth as verdict winner, supports the jury's finding of all of the elements of the offense beyond a reasonable doubt. Commonwealth v. Widmer, 560 Pa. 308, 744 A.2d 745, 751 (2000)

(citing Commonwealth v. Chambers, 528 Pa. 558, 599 A.2d 630 (1991)).

Evidence is sufficient to sustain a conviction for first-degree murder where the Commonwealth establishes that a human being was unlawfully killed; that the accused is responsible for the killing; and that the accused acted with specific intent. 18 Pa.C.S. § 2502(a); Commonwealth v. Spotz, 563 Pa. 269, 759 A.2d 1280, 1283 (2000). An intentional killing is a "[k]illing by means of poison, or by lying in wait, or any other kind of willful, deliberate and premeditated killing." 18 Pa.C.S. § 2502(d). The Commonwealth can prove this specific intent to kill from circumstantial evidence. Commonwealth v. Brown, 551 Pa. 465, 711 A.2d 444 (1998).

Evidence adduced at trial revealed that Tausha Lee Lanham was appellant's second child, born prematurely on August 16, 1990. Tausha was hospitalized for the first year of her life due to her premature birth and resulting health problems. The Pennsylvania Department of Public Health provided services for Tausha following her release from the hospital until March 1993. At that time, Tausha was "small" but looked "fine." Trial Transcript ("T.T.") Nov. 7, 2000, at 319.

Tausha's aunt, Rhonda Lanham, lived with appellant and her children during the winter months of 1994 and 1995. While there, Rhonda observed that Tausha was routinely given a small amount of food and then sent away from the table, while the other children stayed at the table and had second helpings. On one occasion, Rhonda picked Tausha up from her crib and found that her diaper was completely soaked through. There were, however, no diapers to be found in the house. In addition, during Tausha's "potty training" phase, food was withheld from her and she was strapped on top of the toilet. Rhonda Lanham was so concerned for the well-being of Tausha that she offered to take Tausha to live with her. Appellant refused this offer.

After her relationship with Tausha's father ended, appellant had a relationship with Robert Skiles, which also produced a child, a daughter born on June 6, 1994. Thereafter, appellant met Douglas Bittinger, Sr., and he moved in with appellant and her now-three children in June of 1996. The couple had a child of their own, a son born on October 17, 1997.

Bittinger testified that during his cohabitation with appellant, the family would eat dinner without Tausha, who was kept trapped in a corner by various pieces of furniture, which she could not easily move. Appellant instructed Bittinger not to feed Tausha while she was away from the apartment. Bittinger testified that he learned never to ignore this instruction because if he fed Tausha the other children would tell their mother and an argument would ensue. Occasionally, Tausha went two or three days without anything to eat or drink. Id. at 417. The deprivation of essential nourishment led Tausha to take extreme measures in an effort to sustain herself. Thus, Tausha would sneak into the pantry at night and eat cake mix or eat out of the dog's bowl. If she caught Tausha fending for herself, appellant would either tie Tausha to her bed or tie her bedroom door shut so as to trap her inside. Bittinger also observed Tausha eat bread that was thrown outside for the birds, pick through the garbage at his sister's house for food, and drink out of the commode. Id. at 413, 417. Bittinger hypothesized that appellant's abuse of Tausha stemmed from appellant blaming Tausha for having to go to work. Id. at 418.¹¹ Others also witnessed appellant neglect and mistreat Tausha during this period. Audrey Bittinger, Douglas Bittinger's sister-in-law, lived in the apartment above appellant's apartment. Audrey visited Tausha and appellant's other children regularly. In addition, Audrey testified that she occasionally observed appellant's family through a hole under her sink that provided a view of their apartment. She witnessed Tausha locked in her room with a string securing the bedroom door, trapped in a kitchen corner by various pieces of furniture, or kept in the pantry while the rest of the family ate dinner. Audrey also noted that when Tausha seemed ill, appellant would not take her to the doctor. Id. at 384. The combination of these observations led Audrey to file a report with Washington County Children and Youth Services (CYS) concerning the abuse and neglect of Tausha. John Hollenbach, the CYS case worker assigned to the case, testified that he attempted to visit appellant's apartment on at least five occasions. These attempts were unsuccessful because appellant removed Tausha from the premises in anticipation of the scheduled visits.

Lisa Camp, appellant's neighborhood friend, testified that she saw Tausha eat "toy food," cat food, and dog food. Camp also witnessed appellant feed Tausha with a spoon that was too large for Tausha's infant-sized mouth. When Tausha inevitably gagged, appellant sent Tausha to her room and stopped feeding her. Camp further testified that when appellant's children were at Camp's home, appellant strictly controlled what Tausha was allowed to eat. Appellant allowed Tausha to eat but a quarter of a sandwich, claiming that half of a sandwich would make her sick. Appellant also would not allow Tausha to have snacks and other "goodies." Camp saw Tausha approximately two months before her death and described her as, "[w]eak, frail, cracked lips, sunken faced, [and] starved for attention." Id. at 501. Just three weeks prior to Tausha's death, Camp saw appellant and asked how Tausha was doing. Appellant responded that, "she belonged six feet under and in a body bag." Id. at 502. The other three children living with appellant and Bittinger were, by all accounts, healthy and well-fed.

On the morning of April 18, 1998, appellant returned home from work. When she went to check on her daughter, appellant found Tausha dead in her bed. At that time, Bittinger was out of the apartment at a local convenience store. When Bittinger returned, appellant informed him that Tausha was dead. Bittinger confirmed Tausha's death and told appellant to call 911. Appellant refused, saying that she was scared that CYS would take her other children away...