J. S61008/14
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
ROXANNE TAYLOR, : No. 1641 WDA 2013
:
Appellant :
Appeal from the Judgment of Sentence, September 13, 2013,
in the Court of Common Pleas of Washington County
Criminal Division at No. CP-63-CR-0000827-2012
BEFORE: FORD ELLIOTT, P.J.E., WECHT AND STRASSBURGER,* JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED FEBRUARY 09, 2015
Appellant appeals the judgment of sentence imposed following her
conviction on numerous charges related to her criminal neglect of her two
six-year-old boy and girl twins. Finding no error, we affirm.
Appellant came to the attention of authorities on February 15, 2012,
when a stranger found the male child wandering along Seventh Avenue in
New Eagle wearing only a diaper and T-shirt. The child’s arms and legs were
purple, and he was covered with feces. At the hospital, the child was
determined to be suffering from hypothermia. A subsequent police
investigation uncovered appellant’s squalid home, and discovered the twin
sister in equally poor condition. Both children were suffering from
malnutrition.
* Retired Senior Judge assigned to the Superior Court.
J. S61008/14
On July 16, 2013, appellant was convicted of two counts each of
aggravated assault, simple assault, unlawful restraint, false imprisonment,
endangering the welfare of children, and recklessly endangering another
person.1 On September 13, 2013, appellant was sentenced to an aggregate
term of 14 to 50 years’ imprisonment. This timely appeal followed.
Appellant raises the following issues on appeal:
1. Whether the evidence presented during trial
lack [sic] sufficient elements of the charges of
Aggravated Assault to render a guilty verdict.
2. Whether the Court erred and/or abused its
discretion in granting the Commonwealths’
[sic] objection to the introduction of a
preliminary transcript of an unavailable
witness?
3. Whether the Court erred and/or abused its
discretion during Jury Voir Dire and selection?
Appellant’s brief at 6-7.
We find no error with the trial court’s analysis. After a thorough
review of the record, the briefs of the parties, the applicable law, and the
well-reasoned opinion of the trial court, it is our determination that there is
no merit to the questions raised on appeal. The trial court’s meticulous,
16-page opinion, filed on February 26, 2014, comprehensively discusses and
properly disposes of the questions presented. We will adopt it as our own
and affirm on that basis.
1
18 Pa.C.S.A. §§ 2702(a)(1), 2701(a)(1), 2902(a)(1), 2903(a), 4304(a)(1), and
2705, respectively.
-2-
J. S61008/14
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/9/2015
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Copies: Molly Maguire Gaussa. Esq.; Troci McDonald, Esq.
IN THE COURT OF COMMON PLEAS OF WASHINGTON COUNTY, PENNSYLVANIA
CRIMINAL DIVlSION
COMMONWEALTIl OF PENNSYLVANIA )
)
vs. )
) NO. 827 of 201 2
ROXANNE TAYLOR, ) ....
,- '
Defendant ) J ..;n
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-· ~1
.;: :JJ
- ~
TRIAL OPINION PURSUANT TO PA.IU.P. 1925
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The Defendant, Roxanne Taylor, was tried before this Court and aji!& of·."
her peers from July 9, 2012 through July 15, 2013. She was found guilty of Aggravated
,
Assault, Unlawful Restraint, Endangering the Welfare of a Child, Simple Assault. and
Recklessly Endangering Another Person, two counts for each charge. On September 13,
2013, the Defendant was sentenced to a total period of incarceration of not less than
fourteen (14) years, to not more than fifty (50) years.
FACTS
The victims of the crimes committed by the Defendant are Ms. Taylor'S two
children, E.B. and A.B .. six year old twins. The crimina1 investigation involving the
Defendaot's conduct began on February IS, 2012. On that day, a man on his way to
work at 6:00 a.m. noticed a small child along on the side of the road clad only in a diaper
and at-shirt. (T.T. p. 67) The mao, Edward Dennont, stopped immediately, picked up
the child and asked him where he lived.' The child pointed to the house in front of him.
I Throughout Mr. Dennont's encounter with the child, he thought £.S. was a girl.
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Mr. Dermant knocked on the door but no one answered. The child was shivering
uncontrollably. Mr. Dermont took the child to his truck, wrapped him in a coat and
called his wife, who called the police. Mr. Dennont then drove to his own home located
a few minutes away. Both Mr. Dermont and his wife observed that the child's anns and
legs were purple, that he was shaking from the cold and was covered in feces . (T.T. pp.
34-8, 40, 67). They wrapped him in an afghan and put a heating pad on him in an effort
to warm him. Mrs. Dennont fed him Rice Krispies, toast and hot chocolate, which he
readily ate. (T.T. p. 69)
The police arrived within a few minutes and the paramedics arrived and took the
child to the emergency room at the Mon Valley Hospital. The paramedic, Kenneth
Prunty, observed that the child's hands and feet were purple and mottled and that the
child was emaciated and thought he (he also believad the child was a girl) was two or
three years old. (T .T. pp. 134, 136-7) Mr. Prunty testified that the child was the worst
case of neglect he had seen in his thirty-one years of being a paramedic. (T.T. p. 153).
In the meantime, the police arrived at the defendant's home and tried to rouse the
residents therein. Officer Rocco banged on the door and went around the house knocking
on windows, hitting the glass with a flashlight to make noise. The officer observed an
open window on the side of the house about ten feet off the ground and that the side yard
underneath the window was full of dog feces. (T.T. p. 85) After at least one half of an
hour, an hour after the child was found, the Defendant Ms. Taylor came to the door.
(T.T. p. 89) The officer asked her if she had children and to check on them. The
Defendant led Officer Rocco through the house to the children's bedroom. She unlocked
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a dead bolt on the bedroom door and opened the door. (T.T. p. 9J) One child was asleep
on a mattress and the window was open; the Defendant stated to the officer that E.B.
must have climbed out the window. Another inhabitant of the house, Edward Buckholtz,
appeared from another bedroom. Mr. Buckholtz is the biological father of the children'
As the officers went in the home on February 15,2012, they noticed a terrible
stench of urine and feces throughout the home . (T.T. pp. 90, 161) The Defendant kept a
large menagerie of animals in the house. There were at least six dogs in the basement,
five cats throughout the house and two rabbits in cages. (1',T. pp. 1044-5) When Officer
Rocco awoke the child, he noticed that she was very thin and bad some feces caked on
her. (1'T p. 91) He noted there were no toy, but there was a potty chair full of feces and
wine on the floor of the room. Another officer then transported the Defendant, Mr.
Buckholtz and A,S. to the emergency room where ER was being treated, (1',T. p. 1019)
ER arrived at the emergency room by ambulance at 7:00 ILm, He had a
temperature of94.5 degrees. considered to be hypothermic, (T,T p, 168). The
emergency room nurse, Janice Varley, observed that E.B. had a distended belly, that his
limbs were extremely thin and that he had bruising on his body, (Exhibits 12, 14-18,21 ),
The child's diaper was clean but he was covered in feces, allover his feet and most of his
body. (T.T. p. 170, Exhibit 22). The child could speakonJy a few words, His hair Was
thin and brittle and he had a low potassium level , signs of malnutrition. (T.T. p.p. 173.
178-9).
A.R was observed to have a distended abdomen and her legs were bowed and
thin, (T,T p. 231), Her hair was thin and matted with urine; she had. feces on her body.
1Mr. Buckholtz wu also cbarged with the same crimes 8l Case No. 826-12. He pled guilty to Aggravated
Assaul~ two counts, and received a negotiated .entence of two to four years.
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The children were showered and fed and transported to Children's Hospital of Pittsburgh
for further treatment. (T.T. p. 188)
At Children's Ho>-pitol, a full medical cheCK-up was completed and a full medical
background was obtained. The children were born on January 27, 2006 at full term. At
birth, E.B. weighed eight pounds, seven ounces and A.a. weighed seven pounds and six
ounces. (T.T. p. 553). Those weights were considered '''robust'' and were in the 75%
per<:entile. The children's medical care provider was Mon Valley Community Health
Service. The children were seen at age three months, at which time they were noted to be
progressing normally. They were not seen again until age twenty-three months. By that
time, the children had not received the requiSite immunizations and had fallen off the
chans, in weight and height, and were by then below the fifth percentile. They were
diagnosed as failure to thrive. (T.T. p. 555). They were sent to an endocrinologist; no
medical condition was found to be the cause of their poor growth. Social Services were
contacted and became involved with the family. Washington County Children and Youth
Social Service Agency was involved on and offfi'om 2008 until February 2011. In-home
parenting was provided and the children were referred to Head Start and speech therapy.
The Defendant signed up for the WIC program which included nutrition counseling.
Generally, the Defendant WIIS cooperative with in-home services but did not follow
through with appoinbnents and therapies provided outside of the home. The last visit to
the pediatrician with the Defendant was in January 2011 . (T.T. p. 565) E.B. weighed
thirty-five pOWJds and WIIS 39.5 inches and A.B. WIIS thirty-six pounds and 40.5 inches.
(T.T. pp. 565, 587) These reflected fairly normal data, above the 25" percentile. By
February 15, 2012, a year later, the day E..B. was found outside, the children had lost
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weight over the year. a very alarming occum:nce In children this age . A child at age nvc
and six average. eight to ten pounds a year in weight gain. (T.T. p. 360). Dr. Squire. of
Children', Hospital observed both children', developmental del.ys to be at a level of
eighteen to twenty-four months behind and because no medical condition was present,
the doctor concl uded that the developmcnta1 delays were caused by an inadequate home
environment. (T.T. p.p. 364. 370) Dr. Squires~ medical assessment was that the children
were subjected to neglect. (T.T. p. 367). Upon discharge from Children's Hospital, the
children were placed in foster care. They both quickly gained weight. At the time of
trial, fifteen months later, E.B. weighed fifty-nine pounds and A.B. weighed fifty-six
pounds, a gain of approximately twenty pounds within a year, (T.T. p.p. 471,486)
Dr. Wolford of the Child Advocacy Center of Children's Hospital, an expert in
the field of child abuse and neglect, reviewed this case and testified that the children were
the subject of child abuse and neglect. (T.T. p.p. 370). Dr. Walford quantified their
condition as moderate malnutrition. (T.T. p. 371) PhysiCian Assistant Aislynn Jenkins
testified that chronic malnutrition impairs long-term brain and organ development (T.T.
p. 602).
The Defendant testified that she did not work and was home with the children.
She also lOok care of her disabled brother on a daily basis. (T.T. p. 990) The Defendant
took morphine for back pain. (T. T. p. 1064) She explained that she failed to hear Officer
Rocco on February 15,2012 because the air conditioning was so loud. (T.T. p. 1093)
The temperllture on that day was 35 degrees. (T.T. p. 137) The Defendant also testified
that on February 15, 2012, the children were not malnourished and their physical
condition as depicted in Exhibits 21 and 29 were normal and appropriate and th.tthe
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children's condition as depicted in Exhibits 46 and 47 show the children to be
overweight. (T.T. p. 1101 )
ISSUES ON APPEAL
The Appellant raises three issues in her concise State of Matters Complained of
on Appeal:
I. SUFFICIENCY OF THE EVIDENCE FOR ACCRA VATED ASSAULT
The evidence and testimony presented at the time of the Defendant's trial was
insufficient to establish Defendant's guilt regarding the charges of Aggravated
Assault beyond a "'8Sonable doubt. The elements of Aggravated Assault we'"
not establiShed or proven as the injury was as a result of Aggravated Assault is
to be a pennanent serious bodily injury. (Statement of Matters Complained of on
Appeal, No. 1)
In evaluating a challenge to the sufficiency afthe evidence, the Court must
determine whether the evidence edmitted at trial and all ",",onable infe",nce. drawn
therefrom, when viewed in light most favorable to the Commonwealth as the verdict
wiMer, is sufficient to permit the trier of fact to find that each element of the crimes
'Charged were proven beyond a reasonable doubt. Commonwealth y. Hopkins. 741 A.2d
910 (Pa. Super. 2000). If the trier of fact ",asonable could have determined from the
evidence presented that each element was established, the evidence is deemed sufficient
to support a guilty verdict. Id. at 914. The jury has sole responsibility of determining
whether to believe or disbelieve a witness. l!l. "This standard is equally applicable to
cases where the evidence is circumstantial rather than direct so long as the combination
of the evidence Iinks the accused to the crime beyond a reasonable doubt."
Commonwealth v. Thomas, 67 A.2d 594, 597 (pa. Super. 2005).
At the trial, the Defendant moved for Judgment of Acquittal of the charge of
Aggravated Assault, claiming that the Commonwealth failed to establish that the
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Defendant acted recklessly under cucwnstances manifesting extreme lndifference to the
value of buman life and that the Commonwealth fililed to establish that either child victim
,uffered serious bodily injury. (T. T. pp. 751, 760). The Defendant again raised those
issues at the conclusion of the trial. (T.T. p. 1124) The issue on appeal, whether
sufficient evidence was presented to establish serious bodily injury, bas been properly
preserved.
The Defendant was charged with two counts of Aggravated Assault, one for each
child The Criminallnfom1ation charged the Defendant as follows: "The actor did
attempt to cause serious bodily injury to another, namely, six-year old (E.B.) and (A.B.);
or caused such injury intentionally, knowingly, or recklessly under circumstances
manifesting extreme indifference \0 the value of human life, in violation of Section 2702
(a) (1) of the Pa. Crime Code Act of December 6, 1972, 1& Po. C.S.A. §2702 (a) (1), as
amended." See Record, DockelNo. 9.
To substantiate a guilty verdict for the charge of aggravated assault pursuant to
Pa. C.S.A. §2701(a) (1), the Commonwealth must establish beyond a reasonable doubt
that I.) the Defendant caused serious bodily injury to the victim or victims and 2.) that
the Defendant acte d intentionally, knowingly or reckless Iy under circumstances
manifesting extreme indifference to the value of human life OR 1.) that the Defendsnt
attempted to cause serious bodily injury to the victim or victims and engaged in conduct
that constituted' a substantial step toward causing serious bodily injury and 2.) that the
Defendant's conduct was intentional, that it was her conscious object or purpose to cause
serious bodily injury.
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The Commonwealth charged the Defendant with either causing serious bodily
injury or attempting to caUse serious bodily on each child. Causing or attempting to
cause were Dot charged sep81'8tely. The verdict slip did not reflect whether the jury found
that the Defendant actually caused serious bodily injury or attempted to caUSe such
injury.
Th. Defendant contends in her Concise Statement, that the evidence did not
establish that the injury rose to the level of "permanent serious bodily injury" necessary
to find Aggravated Assault. Serious bodily injury is defined as any "bodily injury which
creates a substantial risk of death or which causes serous permanent disfigurement Or
protracted loss or impairment of the function of any bodily member or organ." 18 Po.
C.SA §2301.
What constitutes serious bodily injury must be decided on a case by case basis.
CommQnwealth v. Dailey. 828 A.2d 356 CPa Super. 2003). it is for the jury to decide if
the Commonwealth has proven that serious bodily injury occurred. Here, both children
were severely underweight By all aCCOWlts, they were emaciated, bad distended bellies
and the medical professionals who saw them reported that they looked like children from
a Holocaust camp or a third world country. The evidence. if believed, established that the
children wen: neglected. The lock on the bedroom door and the over flowing potty chair
are facts from which it could be inferTed that the children were left alone for long periods
oftim•. No toys were observed to be available for the children. The children, at age six
years of age, were not potty trained, had very limited verbal skills, did not know basic
raclS and lacked many social skills. The jury could reasonably conclude that they were
the victims of abject neglect. Further, the jury could reasonably conclude that the
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Defendant failed to provide sufficient food to the children. Dr. Wolford of Childn:n's
Hospital opined that the malnutrition impaired the childn:n's growth. E.B. was bow-
legged, which caused him to be clumsy and impai~ his walking. A.B. Was also bow-
legged. A jwy could reasonably conclude that the lack of nutrition provided to the
children slowed their growth, deformed their bones, delayed their language development
and impaired the children' s overall brain development. The jury could reasonably find
that those conditions were .. protracted .... impairment of the function of any bodily
member or organ."
The jury could also, in the alternative, have found that the Defendant failed to
adequately feed the children and neglected them and that the failure created a substantial
risk of serious bodily injury, which proves aggravated assault by attempting to cause
serious bodily injury. In addition to proving that the Defendant caused or attempted to
cause serious bod\ly injury, the Commonwealth must also have proven that the Defendant
possessed the requisite mens rea For the attempt to cause serious bodily injwy. the
Commonwealth must have proven that the Defendant had a strict mens rea, that the
Defendant's conduct was intentional, that it was her purpose to cause serious bodily
injury. The Court recognizes that intent to cause serious bodily injury may be proved
circumstantially. Commonwealth v. Rishtley, 617 A.2d 1289 (Pa. Super. 1999)
However, the case sub judice was devoid of evidence of the Defendant'S intent to hann
the children. There was no evidence of anger or withholding of food for punishment or
retribution. The element of intentionally or knowingly caused the hann was not
established. However, the jury could have reasonably concluded that the Defendant's
actions constituted a recklessness, that she acted recklessly under circumstances
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manifesting extreme indifference to the value ofhwnan life. The children had no
medical conditions that affected the proper absorption or digestion of food. A reasonable
inference could be made that they were not fed sufficiently and properly, resulting in a
weight of only thirty-five pounds at age six. The Defendant's statement that the children
did not appear malnourished upon their admission to the hospital and appear overweight
a year later is very telling. One look at those pictures, Exhibits 21 . 29. 46, 47, shows how
reckless her conduct was and how dangerous the outcome could have been without the
chance encounter between a stranger and E.B. The jwy could reasonably conclude that
the Defendant's treatment and care of her children constiruted reckJess behavior
manifesting an extreme indifference to the well.being and safety of E.B. and A.B.
Thus, the evidence w~ sufficient to establish that the Defendant caused serious
bodily injwy to E.B. and A.B. - by failing to feed them sufficiently and by neglecting
them, ",suiting in malnutrition, slowed growth, defonned legs, language delays and an
overall failure to thrive. The evidence was sufficient to establish that the firilure to
provide food and the overall neglect showed a recklessness manifesting an extreme
indifference to the value of human life. Sufficient evidence was present to support the
jwy's verdict that the Commonwealth proved that the Defendant committed Aggravated
Assault against each of the children.
2. ADMISSIBILITY OF PRlOR TESTIMONY OF DR. HOLEKAMP
The Court erred andlor abused its discretion in granting the Commonwealth's
objection to the introduction of the Preliminary Hearing Transcript of Doctor
Holekamp introduced by Defense COWlsel to Impeach the testifying witness.
(Trial Transcript: 191-196). (Statement of Matters Complained of on Appeal,
No. 2)
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The Defendant avers that the CO\U1 erred by sustaining the Commonwealth's
objection that prior testimony of Dr. Holekamp was inadmissible hearsay. Dr. Holekamp
testified at the preliminary hearing as a witness ror the Commonwealth. but did not testify
attriat.
Hearsay is defined as, ". statement, other than one made by the declarant while
testifying at the mal or hearing. offered in evidence to prove the truth of the maner
asserted. Pa.R.E. 801(c). Hearsay is generally not admissible. Pa.R.E. 802. However,
fanner testimony can be admissible when a declarant is WlBvailable and the party against
whom the testimony is now offered had an adequate opportunity and similar motive to
develop the testimony by dirttt, cross, or redirect examination. Pa.R.E. 804.
At trial, the COlTUJ\onwealth called Jamie Lynn Varley lIS one of its many
witnesses. (T.T. at p.167.) On February 15,2012, she was worldng as registered nurse at
Mon Valley Hospital in the emergency room. Upon arriving 81 the hospital at 7:00 a.m.,
Ms. Varley learned that she would be treating a six~year-old boy who was hypothermic.
(T.T. p. 168). The child's temperature was at 94.5 degrees at his admission.' ld. When
the witness was asked to describe the child's appearance at the emergency room, she
answered:
He looked like a child from a third world country. His
abdomen was distended, his legs looked like little tree
sticks. He just looked broken. I couldn't' believe he was
six years old. He looked like a thiee-year-