Opinion
J-S42022-16 No. 1411 WDA 2015
10-13-2016
COMMONWEALTH OF PENNSYLVANIA Appellee v. ELIZABETH MAE FAIR Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence March 19, 2015
In the Court of Common Pleas of Westmoreland County
Criminal Division at No(s): CP-65-CR-0000587-2013 BEFORE: SHOGAN, J., OTT, J., and FITZGERALD, J. MEMORANDUM BY OTT, J.:
Former Justice specially assigned to the Superior Court.
Elizabeth Mae Fair brings this appeal from the judgment of sentence, imposed on March 19, 2015, in the Court of Common Pleas of Westmoreland County. Fair was sentenced to serve an aggregate term of five to 10 years' imprisonment followed by a five year probationary term, after she was convicted by a jury of conspiracy to commit aggravated assault and endangering the welfare of children, and endangering the welfare of children. The victim in this case is the infant daughter of Fair and her co-defendant, Christopher Lawrence Peterman. Fair challenges the sufficiency of the evidence, the weight of the evidence, and the discretionary aspects of her sentence — all with regard solely to her conviction for conspiracy to commit aggravated assault. Based upon the following, we affirm on the basis of the trial court's sound opinion.
See 18 Pa.C.S. §§ 903(a)(1) and 4303, respectively.
Peterman was tried with Fair and convicted of aggravated assault, conspiracy to commit aggravated assault and endangering the welfare of children, and endangering the welfare of children. See 18 Pa.C.S. §§ 2702(a)(1), 903(a)(1) and 4303, respectively. Peterman has filed an appeal which is listed consecutively to this appeal. Commonwealth v. Peterman , 1412 WDA 2015, J-S42023-16.
The trial court did not order Fair to file a concise statement of errors complained of on appeal, pursuant to Pennsylvania Rule of Appellate Procedure 1925(b). On September 30, 2015, the trial court filed a Rule 1925(a) statement, relying on its opinion filed August 17, 2015, which accompanied the order denying Fair's post-sentence motions.
The Honorable Meagan Bilik-DeFazio has set forth the procedural history and an extensive discussion of the facts of this case and, therefore, we need not restate them here. See Trial Court Opinion, 8/17/2015, at 1-15. Briefly, the three-month old victim suffered numerous severe injuries while under the care of Peterson and Fair. The injuries were discovered after Peterson and Fair brought the victim to Westmoreland Hospital on October 20, 2012. An emergency room doctor called Dr. Rachel Berger, a pediatrician and Division Chief for the Division of Child Advocacy at Children's Hospital of Pittsburgh, who was on-call for the Child Protection Team, for consultation regarding child abuse concerns. The charges against Fair arose following an investigation by state police upon receiving a report from Westmoreland County Children's Bureau regarding suspected child abuse by Peterman and Fair.
On July 20, 2012, the victim was born prematurely, and was hospitalized after her birth. Fair and Peterman learned how to perform CPR and use the oxygen and monitor the victim required. On September 24, 2012, the victim was discharged from the hospital with a pulse oximeter, which kept track of her oxygen levels, and an A&B monitor, which kept track of her heart rate and breaths. See Trial Court Opinion, 8/17/2015, at 2 n.1.
Judge Bilik-DeFazio has provided a 24-page opinion that fully addresses the issues raised in this appeal. See Trial Court Opinion, 8/17/2015, (explaining: (1) There was sufficient evidence that Fair entered into an agreement with Peterman to commit aggravated assault, where forcible trauma was inflicted upon the victim, where Fair and Peterman always maintained they were always the victim's only caretakers and the victim was a healthy and fracture-free infant when she left the hospital, where Fair and Peterman were aware the victim was having multiple "medical episodes" that required CPR between October 17-20, 2012, and told each other about the episodes but decided not to seek medical care, and where Dr. Berger testified that the victim's multiple rib fractures could not have been the result of CPR performed on her, that the history of the fall from the bassinet could not account for all the victim's injuries, and that it would not have been possible for Fair and Peterman to be unaware that the victim's forearms and femur were fractured or that the victim was in a tremendous amount of pain; (2) Fair's acquittal on the aggravated assault charge did not preclude a conviction for conspiracy to commit aggravated assault, and the court does not believe the jury's verdict is so contrary as to shock the court's sense of justice, and (3) Fair's sentence of 5-10 years' imprisonment on Count 2, conspiracy to commit aggravated assault, which falls above the aggravated range, is warranted under the facts and circumstances of this case, and the reasons were set forth on the record at the time of sentencing.)
Dr. Rachel Berger, a pediatrician and Division Chief for the Division of Child Advocacy at Children's Hospital of Pittsburgh, testified as an expert in pediatrics and child abuse. Trial Court Opinion, 8/17/2015, at 4.
Fair had a prior record score of zero, and the applicable offense gravity score is ten: The standard range is 22-36 months, minus or plus 12 months for the mitigated and aggravated ranges. The statutory maximum was 20 years' imprisonment. See 18 Pa.C.S. § 1103.
Based on our review, we find no error of law or abuse of discretion by the trial court. Furthermore, in light of the trial court's thorough and cogent discussion, no further elaboration is warranted by this Court. Accordingly, we adopt the trial court's opinion authored in support of its decision to deny Fair's post-sentence motions as dispositive of the issues raised in this appeal.
In the event of further proceedings, parties are directed to attach a copy of the trial court's opinion to this memorandum.
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 10/13/2016
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