Opinion
2900 EDA 2022
01-11-2024
COMMONWEALTH OF PENNSYLVANIA v. MICHAEL E. COOPER Appellant
Benjamin D. Kohler, Esq.
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
Appeal from the Judgment of Sentence Entered December 21, 2016 In the Court of Common Pleas of Montgomery County Criminal Division at No(s): CP-46-CR-0007139-2015
Benjamin D. Kohler, Esq.
BEFORE: BENDER, P.J.E., LAZARUS, J., and SULLIVAN, J.
MEMORANDUM
SULLIVAN, J.
Michael E. Cooper ("Cooper") appeals nunc pro tunc from the judgment of sentence imposed after a jury found him guilty of aggravated assault, endangering the welfare of a child ("EWOC"), and related offenses. We affirm.
The trial court has summarized the evidence underlying Cooper's convictions, as well as the procedures leading to the reinstatement of Cooper's direct appeal rights, none of which are in dispute. See Trial Court Opinion, 1/26/23, at 2-5; see also Cooper's Brief at 9-11 (adopting the trial court's summary of the facts). We add that the trial evidence established that Cooper and A.H. and her three children, including E.M., were staying at Cooper's apartment. In an afternoon of January 12, 2015, A.H. arranged for Cooper's neighbors, Averia Johnson ("Johnson") and Pralor Newman ("Newman"), to babysit E.M., who was three years old at the time, and his two siblings, while A.H. went to work. See N.T. 7/5/16 at 142, 163-64. E.M. appeared to be acting normally throughout the day, lying on the couch and watching television, and Johnson and Newman denied shaking or striking E.M. or seeing anyone else do so. See id. at 144-45, 163-65. Cooper picked up the children at around 11:00 p.m. and took them to his apartment. See id. 165. Although there was contradictory evidence concerning the specifics of what occurred in the overnight hours between January 12 and 13, 2015, it was undisputed that E.M. became unresponsive while in Cooper's care and Cooper did not immediately seek aid for E.M. See N.T., 7/6/16, at 344-48. Rather, Cooper called A.H. and either waited for A.H. to return from work, or went to pick up A.H. from work, before they both brought E.M. to Abington Hospital ("Abington") at 3:24 a.m. on January 13, 2015. See id. at 348-49 (indicating Cooper's testimony that A.H. returned to the apartment); but see N.T., 7/5/16, at 33 (indicating A.H. was waiting for someone to pick her up at work); N.T., 7/6/16 at 289-94 (discussing cell tower location data suggesting Cooper went to A.H.'s workplace before going to Abington). The evidence indicated that at least one hour, possibly more than three hours, passed between the time E.M. became unresponsive and Cooper and A.H. brought E.M. to Abington.
Cooper lived with his high-school-aged son.
The medical team at Abington determined that E.M. was suffering from "catastrophic" subdural hematoma, or bleeding around the brain, which required immediate emergency surgery to save his life and stabilize his condition for a transfer. See N.T., 7/6/19, at 224-26, 262. Cooper told medical personnel that E.M. had fallen in his apartment but gave different people different versions of how and where E.M. fell. See id. at 229. Following surgery, E.M. was transferred to Children's Hospital of Philadelphia, where a suspected child abuse and neglect team determined that E.M. suffered physical abuse. See id. at 236, 242. One of the team's physicians, Dr. Carla Parkin-Joseph, noted that E.M. had "old" blood around his brain indicating prior injuries, but the "new" injuries and "fresh" bleeding caused E.M.'s unresponsive condition. See id. at 255-56. E.M. also had severe retinal hemorrhages and ligament damage in his neck. See id. at 260, 262-263. The doctor ruled out a fall, the prior injuries, and other medical conditions as the cause of E.M.'s unresponsive condition. See id. at 266-67. The doctor concluded that E.M. suffered abusive head trauma "in close proximity" to the time of the "new" injuries. See id. at 264. Dr. Parkin-Joseph opined that E.M. likely suffered the injuries that caused his unresponsive condition after 11:00 p.m., when other evidence showed E.M. was in Cooper's care. See id. at 266.
Cooper, through cross-examination of the Commonwealth's witnesses, highlighted the possibility that E.M.'s prior injuries could have occurred when E.M.'s biological father cared for E.M. in November and December 2014. Cooper emphasized that when E.M. returned to A.H.'s care in December 2014, E.M. was vomiting and lethargic and had lost his appetite, and A.H. took him to the hospital. Cooper testified at trial and stated that during the night in question, E.M. fell after Cooper woke him up for potty training, and E.M. became unresponsive and had a seizure. See id. at 344-45. Cooper called A.H., and A.H. returned to the apartment fifteen to twenty minutes later, and he and A.H. took E.M. to Abington. See id. at 351-53.
During a jury instruction conference, Cooper requested a missing witness jury instruction with respect to A.H., whom the Commonwealth had charged as a co-defendant, but who pleaded guilty before trial. The trial court denied the requested instruction. See N.T., 7/7/16, at 427-28. During Cooper's closing argument to the jury, counsel stated to the jury that the investigation into who caused E.M.'s injuries was incomplete and investigations failed to consider that someone else, such as E.M.'s biological father, had caused E.M.'s injuries, which became critical after E.M. fell at Cooper's apartment.
After a jury found Cooper guilty of the above listed offenses, the trial court, in December 2016, sentenced him to six-and-a-half to thirteen years of imprisonment. Cooper filed a post-sentence motion. Lengthy proceedings and delays ensued, which are not relevant to the issues in this appeal, and the lower court reinstated Cooper's direct appeal rights in October 2022. Cooper timely appealed, and both he and the trial court complied with Pa.R.A.P. 1925.
Cooper raises the following issues for our review:
I. Did the trial court err in denying [Cooper's] post-sentence motions as to the sufficiency of the evidence used to convict him of two charges; specifically, that no evidence was produced that [Cooper] caused any actual harm to the child victim, thus committing any sort of assault, or that [Cooper] failed to render aid to the child victim in delaying treatment for the child, thus endangering the welfare of the child?
II. Did the trial court err when it failed to give a defense-requested jury instruction as to the co-defendant in this case, A.H., when this witness gave statements to investigators that were used in the joint preliminary hearing for both [Cooper] and [A.H.] and when that statement was relied upon by investigators in the case against [A.H.]?Cooper's Brief at 5 (some capitalization omitted).
Cooper's first issue challenges the sufficiency of the evidence supporting his conviction for aggravated assault and EWOC. Our standard of review is as follows:
In reviewing the sufficiency of the evidence, we must determine whether the evidence admitted at trial, and all reasonable inferences drawn from that evidence, when viewed in the light most favorable to the Commonwealth as verdict winner, was sufficient to enable the fact finder to conclude that the Commonwealth established all of the elements of the offense beyond a reasonable doubt. The Commonwealth may sustain its burden by means of wholly circumstantial evidence. Further, the trier of fact is free to believe all, part, or none of the evidence.Commonwealth v. Woodard, 129 A.3d 480, 489-90 (Pa. 2015) (citations and quotations omitted). The facts and circumstances established by the Commonwealth need not preclude every possibility of innocence. See Commonwealth v. Golphin, 161 A.3d 1009, 1018 (Pa. Super. 2017). The jury may resolve any doubts regarding the defendant's guilt unless the evidence is so weak and inconclusive that as a matter of law no probability of fact may be drawn from the combined circumstances. See id.
To sustain a conviction for aggravated assault, the Commonwealth must prove the defendant "attempt[ed] to cause serious bodily injury to another, or cause[d] such injury intentionally, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life [.]" 18 Pa.C.S.A. § 2702(a)(1). To establish EWOC, the Commonwealth must prove the defendant "knowingly endanger[ed] the welfare of the child by violating a duty of care, protection or support." 18 Pa.C.S.A. § 4304(a)(1).
Cooper's arguments as to both offenses focus on the evidence and his trial theory that E.M. had suffered prior head injuries before the incident in question. With respect to aggravated assault, Cooper alleges the evidence established only that "some person" severely injured E.M. Cooper's Brief at 18-21. He notes there was no testimony that he ever hit E.M., A.H. had concerns leaving E.M. with him, or he did anything in the overnight hours between January 12 and 13, 2015 to cause E.M.'s injuries. Cooper emphasizes that E.M. showed symptoms of head injuries after spending time with his biological father at the end of 2014, and E.M. was under the care of other people, such as Johnson and Newman, and possibly A.H.'s sister, immediately before he took custody of E.M. on the night of January 12, 2015. As to EWOC, Cooper summarily concludes he "is not and should not be solely responsible for the child's well-being" because there were multiple caregivers who saw the symptoms of E.M.'s prior head injuries. Id. at 21.
The trial court rejected Cooper's claims, stating that it was clear Cooper had physically assaulted E.M. See Trial Court Opinion, 1/26/23, at 9. The court reasoned that Dr. Parkin-Joseph classified E.M.'s injuries as abusive head trauma which occurred in the immediate hours before E.M. arrived at Abington. See id. The court noted that the doctor's testimony that (1) the injuries responsible for E.M.'s unresponsive condition likely occurred after 11:00 p.m., when E.M. was in Cooper's apartment and (2) E.M.'s prior injuries would not have caused E.M.'s unresponsive condition. See id. With respect to EWOC, the court concluded that Cooper knowingly endangered E.M.'s health and safety by waiting for A.H. and delaying emergency medical care while E.M. was unresponsive and seizing. See id. at 10-11.
We conclude there was sufficient circumstantial evidence proving that Cooper physically assaulted E.M. after picking him up from his neighbors' apartment at 11:00 p.m. The record when read in a light most favorable to the Commonwealth as the verdict winner established that E.M. showed no abnormal symptoms between 2 p.m. and 11 p.m. while staying with Johnson and Newman. See N.T., 7/5/16, at 144-45, 163-65. Johnson and Newman both expressly denied striking or shaking E.M. or seeing anyone else do so. See id. There was no indication that Cooper himself noticed abnormal symptoms when he brought E.M. back to his apartment from Johnson and Newman's apartment. See id. at 337-44.
Significantly, the jury heard expert testimony from Dr. Parkin-Joseph that E.M. suffered a pattern of "new" injuries including bleeding on the brain, severe retinal hemorrhaging, and ligament damage in the neck consistent with physical child abuse, with a level of physical trauma comparable to a "high-speed car accident." N.T., 7/6/16, at 260 (noting that E.M.s retinal hemorrhages could have been caused by an obvious accidental trauma like a high-speed car crash). The doctor opined E.M. suffered his injuries only hours before being taken to the hospital. See id. at 265. As noted by the trial court, Dr. Parkin-Joseph determined that neither a fall nor the prior head injury would have caused E.M.'s new injuries that caused him to become unresponsive while in Cooper's care. See id. at 265-67.
Thus, the evidence demonstrated that E.M. came into Cooper's care in a relatively normal physical condition, but hours later arrived at the hospital in critical condition with fresh injuries consistent with recent physical trauma. Based on the foregoing discussion of the record, there was sufficient evidence for the jury to conclude that Cooper physically assaulted E.M. and thereby caused his serious injuries. Additionally, by failing to respond promptly to E.M.'s unresponsive state, Cooper knowingly violated a duty of care, and thereby EWOC was established. Accordingly, Cooper's sufficiency of the evidence issue merits no relief.
In his next issue, Cooper challenges the trial court's denial of his request for a missing witness instruction concerning A.H.
We initially conclude that Cooper did not preserve this issue for appellate review. To preserve a challenge to the refusal to issue a jury instruction, a party must request and specifically object to the denial of the request before deliberations begin. See Pa.R.Crim.P. 647(C). Simply requesting a jury instruction, without interposing a specific objection to the court's denial of the request, will waive the issue on appeal. See Commonwealth v. Janda, 14 A.3d 147, 163 (Pa. Super. 2011). Here, Cooper requested but did not object to the denial of his request for a missing witness instruction. See N.T., 7/7/16, at 427-28, 450. Cooper points to no other portion of the record memorializing an objection. Thus, this issue is waived. See Janda, 14 A.3d at 163.
We add that during the charging conference at trial, Cooper did not refer to a missing witness instruction, or offer any proof as to what evidence justified issuing the instruction. See N.T., 7/6/16, at 411-20. The trial court only referred to the request the following day when it denied the requested instruction. See N.T., 7/7/16, at 427-28.
Even if Cooper preserved the issue, it would merit no relief. An appellate court will only reverse a trial court's decision denying a request jury instruction if it abused its discretion or committed an error of law. See Commonwealth v. Galvin, 985 A.2d 783, 799 (Pa. 2009). "[T]he relevant inquiry for this Court . . . is whether such charge was warranted by the evidence in the case." Commonwealth v. Baker, 963 A.2d 495, 506 (Pa. Super. 2008) (citations and quotation marks omitted).
A missing witness instruction may be given in limited circumstances where a potential witness is available to only one of the parties to a trial, has special information material to an issue, and the proposed testimony is not cumulative. See Commonwealth v. Miller, 172 A.3d 632, 645-46 (Pa. Super. 2017). In order to determine whether a witness was "available" to a party, the trial court must ascertain whether the witness was "peculiarly within the knowledge and reach" of one party. Commonwealth v. Evans, 664 A.2d 570, 574 (Pa. Super. 1995). Moreover, the missing witness instruction will not be issued when the witness is equally available to both parties. See id. at 573.
On appeal, Cooper notes the trial court erred because A.H. was in prison from July 1 to 7, 2016. He asserts A.H.'s imprisonment placed her under the control of the Commonwealth and rendered her unavailable to the defense. The trial court denied a missing witness instruction because A.H. was available to both the Commonwealth and Cooper. See Trial Court Opinion, 1/26/23, at 11.
Here, Cooper was aware of A.H.'s identity and location and took no steps to seek her attendance at trial. Cooper cites no authority for his assertions that imprisonment places a witness within the exclusive control of the Commonwealth or renders the witness unavailable to the defense. Under these circumstances, we discern no error in the trial court's denial of Cooper's request for a missing witness instruction. Judgment of sentence affirmed.
Judgment Entered.