Com. v. Dasburg, M.

J-S79039-14

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
MICHAEL SCOTT DASBURG, :
:
Appellant : No. 1858 EDA 2014

Appeal from the Judgment of Sentence Entered January 14, 2014,
in the Court of Common Pleas of Bucks County,
Criminal Division, at No(s): CP-09-CR-0005890-2013

BEFORE: ALLEN, OLSON, and STRASSBURGER, JJ.*

MEMORANDUM BY: STRASSBURGER, J.: FILED JANUARY 13, 2015

Michael Scott Dasburg (Appellant) appeals from the January 14, 2014

judgment of sentence of eight to twenty years of incarceration imposed

following his conviction for one count of aggravated assault, 18 Pa.C.S.

§ 2702(a)(1). We affirm.

The trial court summarized the facts underlying Appellant’s conviction

as follows.

On November 4, 2012, the victim, then seven weeks old,
had developed a fever and was brought to Grand View Hospital
by his family. Dr. Elizabeth Jamme, M.D., an in-patient pediatric
hospitalist who worked at Grand View Hospital that day, testified
that as part of the standard of care for infants with high fevers, a
spinal tap procedure was performed on the victim by Dr. Sheila
Knerr. The procedure was simple and a typical spinal tap.

Immediately following the procedure, Dr. Jamme evaluated
the victim and noticed nothing out of the ordinary. After
approximately two hours, Dr. Jamme was summoned to evaluate
the victim due to concerns that the victim’s left leg was swollen.

*Retired Senior Judge assigned to the Superior Court.
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X-rays were immediately ordered, and the results showed that
the victim suffered from a displaced fracture of his left femur.
Alexandra Ries, a nurse who assisted in the spinal tap
procedure, testified that in her opinion, nothing was done during
the spinal tap that could have caused such a fracture, the
fracture was likely present prior to the procedure, and the spinal
tap may have displaced the fracture. The victim also had
subconjunctival hemorrhages, which are essentially patches of
blood on the surface of the eyeball that can be caused by trauma
or excessive crying. Dr. Jamme was concerned that the leg
injury could require immediate surgery due to potential bleeding
in the region of the leg.

Amongst the individuals present at Grand View on behalf
of the victim were [Mother] and the Appellant.[1] Upon hearing
of the displaced fracture, Appellant vocalized that he thought
that it had to have occurred during the spinal tap procedure. Dr.
Jamme testified at trial that she had performed one hundred or
more spinal taps and that she had never heard of a displaced
fracture occurring during a routine spinal tap. Like Ries, she also
testified that most likely the fracture in the femur was already
present at the time of the spinal tap, and it was just displaced
because of the way the victim had to be held during the spinal
tap. After additional x-rays were performed, she discovered an
additional fracture on the other side of the leg, called a
metaphyseal or bucket fracture, on the very [corner] of one of
the lower bones. Dr. Jamme testified that this type of fracture is
pathognominic, meaning there is no cause for it other than a
traumatic abuse situation. She arranged for transport of the
victim from Grand View to Children’s Hospital of Philadelphia
(“CHOP”). The victim was transported by helicopter to CHOP.

Dr. Samantha Schilling, M.D., a pediatrician at CHOP, was
working as a part of the child abuse team at CHOP and assisted
in the care of the victim when he was brought in on November 4,
2012 until November 8, 2012. After Dr. Schilling and her team
reviewed all of the testing, some of which came back months
later, they determined that the diagnosis was child physical
abuse. The first of two skeletal surveys performed on the victim

1
Appellant is Mother’s boyfriend and not the victim’s biological father.

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at CHOP revealed three types of fractures. First, the victim had
the displaced fracture of his left femur, which is the biggest bone
in the body, yet it was broken all the way through. Secondly, he
had approximately four different fractures to his ribs, in
particular the posterior or back of the ribs and side of his ribs.
Dr. Schilling explained that posterior fractures of the ribs are
more concerning for child abuse as they are likely to be caused
by some compression of the chest such as squeezing or stepping
on. Finally, the skeletal survey revealed several metaphyseal
fractures, which were present on the femur and tibia of his right
leg, the femur of his left leg, the humerus of his right arm, and
the radius of his left arm.

Subsequently, a second skeletal survey was performed
approximately two to three weeks later, which confirmed the
fractures described above and also showed additional injuries
that were previously present, but not detected. These included
two more posterior rib fractures, a metaphyseal chip fracture, a
fracture of the right clavicle, and a fracture in the middle of the
femur of his right leg. Dr. Schilling testified that the fractures to
the right clavicle and right femur, as they were through the
middle of the bone, are likely to be caused from blunt force
trauma. The skeletal surveys revealed that the fractures were
also in multiple stages of healing, which Dr. Schilling testified
was a sign that the victim experienced multiple traumas over
time, not just one terrible trauma, and these injuries were
unlikely to have occurred due to an accident. The major femur
fracture was determined to be newer and the rib fractures were
older, approximately two to four weeks old when discovered in
the first skeletal survey.

The victim, being only seven weeks old, and therefore,
dependent on adult caregivers for everything, could not have
done something to cause an accident and injure himself.
Numerous tests were done to determine whether the injuries
were a result of some other condition such as vitamin D
deficiency or genetic disorders. Ultimately, it was determined
that the victim did not have any such condition, and Dr. Schilling
diagnosed the victim’s injuries as a result of child physical abuse.

The Hilltown Township Police Department investigated
Appellant and the other family members who cared for the victim

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to determine who caused the victim’s injuries.[2] [Mother]
attended college approximately two days per weeks and in this
time, left the victim in Appellant’s care. On one particular
morning, after Appellant had watched the victim for the night,
[Mother] noticed a small bruise right below the victim’s eye, and
Appellant denied knowledge of its cause. [Mother] also testified
that she observed Appellant get angry with the victim for crying,
because of the victim’s picky eating habits, and the victim’s
resemblance to his biological father. Further, whenever
Appellant held the victim, whether to change his diapers or to
feed him, the victim would always cry. When Appellant would
change the victim’s diapers, Appellant would take the victim to
his nursery and shut the door behind him. If [Mother]
attempted to assist as a result of the victim crying, Appellant
would shut the door or tell [Mother] to trust him and that he
knew what he was doing. In one instance, Appellant slammed
the door in [Mother’s] face. On a few occasions, Appellant
became aggravated that [Mother] kept walking in and left the
victim on the changing table and told [Mother] to finish. On
another occasion, Appellant was angry after changing the
victim’s diaper and thrust the victim aggressively into [Mother’s]
hands.

[Mother] also testified to other instances where Appellant
inappropriately handled the victim. For instance, Appellant
would hold the victim up in the air like an airplane when the
victim was only a few days old. Appellant would also have the
victim stand on his legs and Appellant would hold the victim up
by his arms, which prompted [Mother] and [Maternal
Grandmother] to tell Appellant to stop as the victim was too
young for that type of handling.

Additionally, when [Mother] wanted to take the victim to
the hospital for the high fever, Appellant became angry and gave
the reason that the insurance had run out and they would have
to pay for it out of pocket. Subsequent to the victim’s
hospitalization, Appellant stated that he may have handled the

2
Mother, Appellant, and the victim lived in the finished basement of a home
owned and lived in by Maternal Grandmother and Maternal Grandmother’s
husband. Also living at the home were Mother’s fifteen-year-old sister and
two-year-old brother.

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victim too roughly, and that he did not know his own strength.
Appellant also became angry when CHOP wanted to perform
additional tests on the victim to determine whether there were
more injuries. Furthermore, when questioned by detectives,
Appellant distanced himself from having cared for the victim.
Appellant stated that he did not really take care of the victim
and that he did not trust himself with a baby after working 12 to
14 hours. He also explained that when [Mother] went to school,
it was [Maternal Grandmother] who cared for the victim.
Appellant also blamed Grand View Hospital for the victim’s
fractured left femur.

Trial Court Opinion, 7/14/2014, at 2-6 (citations to the record omitted;

footnotes added).

Having heard this evidence, a jury convicted Appellant of aggravated

assault on January 14, 2014. Appellant was immediately sentenced as

outlined above.3 Appellant timely filed a post-sentence motion, which was

denied, after a hearing, on March 31, 2014. Appellant timely filed a notice

of appeal, and both Appellant and the trial court complied with Pa.R.A.P.

1925.

Appellant presents one question on appeal: “Was the evidence

sufficient to support the guilty verdicts?” Appellant’s Brief at 4.

3
During the same sentencing proceeding, Appellant was sentenced for
burglary, at CP-09-CR-0003949-2013, to a consecutive term of two to four
years’ incarceration. He was also sentenced for burglary and criminal
conspiracy, at CP-09-CR-0005894-2013, to 20 years’ probation to be served
concurrently with the previously imposed sentence. Finally, at CP-09-CR-
0002826-2013, Appellant was sentenced to five years’ probation to run
concurrently with the other sentences.

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We consider a challenge to the sufficiency of the evidence pursuant to

the following standard.

[O]ur standard of review of sufficiency claims requires that we
evaluate the record in the light most favorable to the verdict
winner giving the prosecution the benefit of all reasonable
inferences to be drawn from the evidence. Evidence will be
deemed sufficient to support the verdict when it establishes each
material element of the crime charged and the commission
thereof by the accused, beyond a reasonable doubt.
Nevertheless, the Commonwealth need not establish guilt to a
mathematical certainty. Any doubt about the defendant’s guilt is
to be resolved by the fact finder unless the evidence is so weak
and inconclusive that, as a matter of law, no probability of fact
can be drawn from the combined circumstances.

Commonwealth v. Pettyjohn, 64 A.3d 1072, 1074 (Pa. Super. 2013)

(internal quotations and citations omitted). The Commonwealth may sustain

its burden by means of wholly circumstantial evidence, and we must

evaluate the entire trial record and consider all evidence received against the

defendant. Commonwealth v. Markman, 916 A.2d 586, 598 (Pa. 2007).

Appellant was convicted of violating subsection 2702(a)(1) of the

crimes code, which provides in relevant part: “A person is guilty of

aggravated assault if he … attempts to cause serious bodily injury to

another, or causes such injury intentionally, knowingly or recklessly under

circumstances manifesting extreme indifference to the value of human

life[.]” 18 Pa.C.S. § 2702(a)(1).

Appellant acknowledges that the victim suffered “serious bodily

injury;” however, Appellant asserts that he did not cause those injuries.

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Appellant’s Brief at 11. Specifically, Appellant contends the evidence

presented by the Commonwealth showed that Mother was the victim’s

abuser and “[n]o evidence was presented that definitively pointed to

Appellant.” Id. at 12. Appellant argues that Mother spent 23 out of 24

hours a day with the victim; she was his primary caregiver; and she was

interviewed by police accompanied by a criminal defense attorney.

Appellant suggests the evidence “pointed to [Mother]” and “the jury was

required to guess to convict Appellant” because it “is quite clear that the fact

finder wanted someone to be held accountable.” Id.

The trial court responded to Appellant’s argument as follows.

First, evidence at trial supported that the victim had only
been cared for by three individuals up to that point: Appellant,
[Mother], and [Maternal Grandmother]. Both [Mother] and
[Maternal Grandmother] testified and denied causing the injuries
to the victim. The jury ultimately determined their testimony to
be honest and credible in finding Appellant guilty of the crime
charged. Further, testimony was presented regarding
Appellant’s anger towards the victim, an infant, for various
issues such as the victim’s crying, picky eating habits, and
resemblance to his biological father. Appellant exhibited this
anger outwardly by improperly handling the newborn victim.
Further, the victim constantly cried around the Appellant, the
only outward sign of distress the victim could communicate at
such a young age. In addition, when interviewed by police,
Appellant distanced himself from care of the victim, stating that
when [Mother] was at school, it was [Maternal Grandmother]
who only cared for the victim. Evidence was presented to refute
these statements. Finally, after the victim was treated for the
injuries, Appellant stated that he may have handled the victim
too roughly and that he did not know his own strength. This
evidence, when viewed in the light most favorable to the

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Commonwealth, supports the finding that Appellant was the
cause of the victim’s injuries.

Trial Court Opinion, 7/14/2014, at 10.

In concluding that the trial court’s findings are supported by the

record, “we must keep in mind that ‘[t]he credibility of witnesses and the

weight to be accorded the evidence produced are matters within the

province of the trier of fact, who is free to believe all, some or none of the

evidence.’” Commonwealth v. Vining, 744 A.2d 310, 320 (Pa. Super.

1999) (quoting Commonwealth v. Perez, 698 A.2d 640, 645 (Pa. Super.

1997)). “We are cognizant of the difficulties often facing the prosecution in

cases of child abuse. Typically in such cases one finds, as here, the only

witnesses to the events that transpired are a young victim and the alleged

perpetrators.” Vining, 744 A.2d at 320.

In this case, the victim, being only seven weeks old at the time, could

not speak for himself. Nonetheless, Mother and Maternal Grandmother both

testified about the victim being upset around Appellant, as well as

Appellant’s rough handling of the victim. For example, Mother testified that

one morning, after Appellant had gotten up with the victim during the night,

Mother noticed a small bruise on the victim’s face under his eye. N.T.,

1/13/2014, at 101. Mother also testified that one time after Appellant

changed the victim’s diaper, the victim was crying and Appellant “thrusted

him very aggressively into [her] hands.” Id. at 105. Maternal Grandmother

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testified that when Appellant was alone caring for the victim, he would be

crying inconsolably. Id. at 204. Maternal Grandmother would then go into

the basement to get the victim. Maternal Grandmother further testified that

Appellant handled the victim inappropriately. Id. at 206.

Based on this testimony, a jury could reasonably infer that Appellant

was the perpetrator of the victim’s child abuse. It is clear that the jury

believed the testimony of Mother and Maternal Grandmother that it was

Appellant that caused the victim’s injuries. See Pettyjohn, supra (“Any

doubt about the defendant’s guilt is to be resolved by the fact finder…”).

Accordingly, we hold the evidence was sufficient to sustain Appellant’s

conviction for aggravated assault.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/13/2015

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