Commonwealth v. Tharp
| Decision Date | 24 September 2014 |
| Docket Number | No. 637 CAP,637 CAP |
| Court | Pennsylvania Supreme Court |
| Parties | COMMONWEALTH of Pennsylvania, Appellee v. Michelle Sue THARP, Appellant. |
Angela S. Elleman, Esq., Federal Community Defender Office, Eastern District of PA, Elizabeth Hadaiya, Esq., James Joseph McHugh Jr., Esq., Defender Association of Philadelphia, for Michelle Sue Tharp.
Jerome Anthony Moschetta, Esq., Washington County District Attorney's Office, Amy Zapp, Esq., PA Office of Attorney General, for Commonwealth of Pennsylvania.
BEFORE: CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, STEVENS, JJ.
On November 14, 2000, Appellant Michelle Sue Tharp was convicted of first degree murder and related offenses after she deliberately starved her seven-year-old daughter to death. After her judgment of sentence was affirmed on appeal, Appellant filed a petition pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541 –46. Following several evidentiary hearings, the Washington County Common Pleas Court (“PCRA court”) dismissed Appellant's petition. For the reasons set forth herein, we affirm the PCRA court's denial of relief on Appellant's guilt phase claims, and reverse the PCRA court's denial of relief on the claim that trial counsel was ineffective for failing to present mental health mitigation evidence during the penalty phase of trial.1 Accordingly, we remand for a new penalty hearing.
Evidence presented at Appellant's murder trial established that she was the mother of the victim in this case, Tausha Lee Lanham. Appellant gave birth to Tausha prematurely on August 16, 1990, and, due to health consequences stemming from her premature birth, Tausha spent the first year of her life hospitalized. Tausha was the second born of Appellant's four children, and was the sole target of Appellant's severe neglect and abuse. Appellant did not mistreat or neglect her other children, who were all healthy and well-fed. In 1996, Appellant began living with Douglas Bittinger, Sr., with whom Appellant had her fourth child.
Pursuant to Appellant's direction, the family would eat dinner while Tausha was either kept in the pantry or trapped in a corner of the kitchen by pieces of furniture. Appellant further instructed Bittinger not to feed Tausha while Appellant was away from the apartment. Accordingly, on multiple occasions, two or three days would pass without Tausha getting any food or drink. This led her to sneak and eat cake mix or dog food from the pantry, eat bread thrown outside for birds, eat from the garbage, and drink from the toilet. Appellant also strapped Tausha to the toilet for extended periods of time to “potty-train” her. Additionally, notwithstanding that Tausha suffered from several infirmities due to her premature birth, in the years preceding her death, Appellant did not seek any medical care for Tausha.
Remarkably, several individuals in addition to Douglas Bittinger observed Appellant's abuse and neglect of Tausha, but apparently could not rescue the child from her mother's torment. Bittinger's sister-in-law, Audrey Bittinger, lived in the apartment above Appellant's residence, and observed the aforementioned abuse. She reported the matter to the Washington County Children and Youth Services (“CYS”), and a caseworker made at least five attempts to visit Tausha. However, Appellant removed Tausha from the apartment on each occasion.
Appellant's neighbor, Lisa Camp, witnessed Tausha eating “toy food,” cat food, and dog food. She further saw Appellant withhold food from Tausha, and described the child as weak and frail a few months before she died. When Camp asked Appellant about Tausha's condition three weeks before the child's death, Appellant responded that Tausha “belonged six feet under in a body bag.” Tausha's aunt, Rhonda Lanham, who lived with Appellant and her children for several months, also documented the deplorable abuse that Tausha suffered at the hands of her mother. Lanham had such concern over Appellant's treatment of Tausha that she offered to take the child to live with her, but Appellant refused. Finally, Carrie Tharp, Appellant's step-mother, was a witness to Appellant's abuse of Tausha. After one occasion where Tharp cared for Tausha and fed her, Appellant refused to let Tharp see the child again. Tharp made 25 calls to CYS to report the abuse from 1996 until Tausha's death in 1998.
On the morning of April 18, 1998, Appellant returned home and found seven-year-old Tausha dead in her bed. Bittinger returned to the apartment shortly thereafter, and told Appellant to call 911. Appellant refused, indicating that she was afraid that CYS would take away her other children. Appellant and Bittinger thereafter placed Tausha's body in a car seat in their car, along with the rest of their children, and proceeded to run errands. They ultimately drove to Empire, Ohio, where Appellant and Bittinger purchased garbage bags to dispose of the child's body. Appellant and Bittinger proceeded to Follansbee, West Virginia, where they discarded Tausha's body in garbage bags on the side of the road.
Appellant and Bittinger thereafter returned to a mall in Ohio, shopped for a while, and then reported to mall security that Tausha had been abducted. When questioned by police, both Bittinger and Appellant ultimately confessed that Tausha had died and that they had hidden her body. Bittinger led police to the location where Tausha's body was recovered. An autopsy revealed that Tausha, at seven years of age, weighed only 11.77 pounds and was 31 inches tall. The medical examiner concluded that Tausha had not eaten for several days, that the cause of death was malnutrition due to starvation, and that the manner of death was homicide. The medical examiner based his opinion on the fact that Tausha's body demonstrated various indicators of malnutrition, including no fat at all in parts of the body where fatty tissue normally accumulates, and extreme wear on the grinding surface of Tausha's teeth, which is common in juvenile starvation cases.
Appellant and Bittinger were thereafter charged with criminal homicide and related offenses. Approximately one week prior to the commencement of jury selection, the two defendants filed requests to waive their right 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. Commonwealth v. Tharp, 562 Pa. 231, 754 A.2d 1251 (2000) ().
Upon remand to the trial court, Appellant's case was severed from Bittinger's, and a jury trial was conducted. To establish that Appellant deliberately withheld food from Tausha with the intent to starve her to death, the Commonwealth presented the testimony of several witnesses who had each independently observed Appellant repeatedly deny Tausha food. These witnesses included Douglas Bittinger, Audrey Bittinger, Rhonda Lanham, Carrie Tharp, and Lisa Camp. Additionally, three inmates who had been incarcerated with Appellant after her arrest testified that Appellant was not sorry Tausha had died. Specifically, inmate Juanita Donnelly testified that Appellant told her that she withheld food from Tausha because Tausha was mentally retarded. Inmate Dena Chandler testified that when she asked how Appellant could have committed the offense, Appellant responded that she never loved Tausha and that Tausha interfered with her life. Further, inmate Renee Vogel testified that Appellant told her that she was glad her “little retarded baby” had died. Finally, the medical examiner testified as to the basis for his conclusion that Tausha died as a result of malnutrition due to starvation, and opined that the manner of her death was homicide.
Appellant testified on her own behalf at trial. Her defense was that Tausha suffered from the preexisting medical condition known as “failure to thrive,” and that such condition caused Tausha's deteriorative physical state and, ultimately, her death. Appellant further testified that she had been a victim of physical and emotional abuse at the hands of her own parents, step-parents, and previous boyfriends, including the fathers of her children, who gave her no support in raising the family. Appellant explained that she had felt overwhelmed by the burden of child rearing and may not have been a good mother to Tausha, but that she did not starve her own child to death.
On November 13, 2000, the jury convicted Appellant of first degree murder, endangering the welfare of a child, and abuse of corpse. During the penalty phase of trial, the defense incorporated the guilt phase evidence and presented no other witnesses or documentary evidence in mitigation, with the exception of a stipulation that Appellant had no prior criminal history. Following the penalty hearing, the jury found one aggravating circumstance, that the victim was less than twelve years of age, 42 Pa.C.S. § 9711(d)(16), and two mitigating circumstances, that Appellant had no significant history of prior criminal convictions, id. § 9711(e)(1), and the “catchall mitigator” of any other evidence of mitigation concerning the character and record of Appellant and the circumstances of her offense. Id. § 9711(e) (8).3 Finding that the aggravating circumstance outweighed the two mitigating circumstances, the jury returned a verdict of death. Accordingly, the trial court sentenced Appellant to death for the murder conviction and to a consecutive sentence of one to two years of imprisonment on the charge of abuse of corpse.4
The trial court denied Appellant's post-trial motions. In her direct appeal to this Court, Appellant challenged the...
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