Com. v. Thomas, J. ( 2015 )

J-S17027-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JUSTIN EDWARD THOMAS,
Appellant No. 1006 WDA 2014
Appeal from the PCRA Order Entered May 24, 2014
In the Court of Common Pleas of Westmoreland County
Criminal Division at No(s): CP-65-CR-0004562-2009
BEFORE: GANTMAN, P.J., SHOGAN, and FITZGERALD,* JJ.
MEMORANDUM BY SHOGAN, J.: FILED APRIL 10, 2015
Justin Edward Thomas (“Appellant”) appeals from the order dismissing
his petition for collateral relief filed pursuant to the Post Conviction Relief Act
(“PCRA”), 42 Pa.C.S. §§ 9541–9546. We affirm.
We have gleaned the relevant facts and procedural history of this case
from the record as follows: Appellant and Nicole Keppler (“Ms. Keppler”) are
the parents of a daughter, S.T. Appellant was alone with then three-week-
old S.T. during the afternoon hours of September 21, 2009. When Ms.
Keppler left Appellant and S.T. around noon that day, S.T. was in good
health and was drinking from a bottle. Several hours later, Appellant
____________________________________________
*
Former Justice specially assigned to the Superior Court.
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telephoned Ms. Keppler and stated that S.T. would not wake up. When Ms.
Keppler returned home, S.T. was unresponsive. Appellant and Ms. Keppler
took S.T. to Conemaugh Hospital in Johnstown. From there, S.T. was
transferred to Children’s Hospital of Pittsburgh. S.T. was diagnosed with a
subdural hematoma and retinal bleeding resulting from physical abuse. As a
result of her severe brain injuries, S.T. requires a feeding tube and is unable
to speak or sit by herself. Appellant was twenty years old at the time of the
incident.
When questioned by Detective Robert Weaver of the Westmoreland
County Detective Bureau, Appellant stated that he had been playing a game
with S.T. while she was lying on his lap; the game involved pumping S.T.’s
arms up and down while saying, “choo choo.” Appellant told Detective
Weaver that he may have shaken S.T. too hard during the game. As a
result of Detective Weaver’s investigation, Appellant was charged on October
8, 2009, with aggravated assault, endangering the welfare of children, and
recklessly endangering another person.
While waiting for discovery from the Commonwealth, appointed trial
counsel began searching for a pediatric radiologist to serve as an expert but
encountered difficulty in finding a suitable candidate. In the meantime, trial
counsel reached out to an acquaintance, forensic pathologist Dr. Karl
Williams, Chief Medical Examiner of Allegheny County, who provided pro
bono assistance to Appellant’s defense. Based on Dr. Williams’
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recommendation, trial counsel contacted Dr. James Smith, Chief Medical
Examiner of Beaver and Lawrence Counties. Dr. Smith was familiar with the
Commonwealth’s expert, Dr. Janice Squires. After speaking with Dr. Smith,
trial counsel petitioned for and received fees to hire him as an expert.
Order, 9/22/10. Based on their review of S.T.’s medical records, Drs.
Williams and Smith suggested that trial counsel contact Dr. Patrick Barnes, a
pediatric radiologist from Stanford Hospital, because of his expertise in
“shaken baby syndrome.”1 To enlist Dr. Barnes’ expertise, trial counsel
again requested fees from the trial court. Following a hearing, the trial court
denied trial counsel’s request. Order, 4/23/12.
Appellant entered a negotiated guilty plea on June 5, 2012, to all three
charges. At the guilty plea hearing, the trial court heard testimony from Ms.
Keppler, Detective Weaver, and Appellant. The trial court conducted an oral
guilty plea colloquy, and Appellant completed a written guilty plea colloquy.
Appellant was sentenced the same day to incarceration for a term of six to
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1
“A diagnosis of Shaken Baby Syndrome . . . indicates that a child found
with the type of injuries described above has not suffered those injuries by
accidental means. Thus, . . . expert testimony shows that the child was
intentionally, rather than accidentally injured.” Commonwealth v. Smith,
956 A.2d 1029, 1038 n.5 (Pa. Super. 2008) (quoting Commonwealth v.
Passarelli, 789 A.2d 708, 715 (Pa. Super. 2001)) (internal quotation marks
and brackets omitted).
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twelve years, followed by five years of probation.2 Appellant did not file
post-sentence motions or a direct appeal.
On June 3, 2013, Appellant filed a timely pro se PCRA petition, raising
claims of an invalid guilty plea allegedly caused by trial counsel’s ineffective
assistance. Counsel filed an amended petition on November 12, 2013. The
PCRA court held an evidentiary hearing on February 27, 2014, at which trial
counsel testified regarding his unsuccessful search for a pediatric radiologist,
consultation with Dr. Williams, and his retention of Dr. Smith as a medical
expert. N.T. (PCRA), 2/27/14, at 10–30. According to trial counsel, both
Drs. Williams and Smith advised him to contact Dr. Barnes. Id. at 15–16.
Trial counsel stated that Dr. Smith would be able to provide a “good
defense,” but Dr. Barnes could have testified “beyond reproach” to
diagnostic tests that could have been conducted to rule out other possible
causes of S.T.’s injuries, such as a genetic condition. Id. at 20–21. Trial
counsel explained that his defense strategy was to argue that Appellant did
not hurt S.T. intentionally or negligently. Id. at 34–36. When his motions
to exclude Appellant’s damaging statements to Detective Weaver were
denied, trial counsel believed a plea was advisable. Id. at 43.
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2
If convicted, Appellant faced possible incarceration for twelve and one-half
to twenty-five years. N.T. (Motion), 4/23/12, at 9; N.T. (Plea), 6/5/12, at
36–38.
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The PCRA court denied Appellant’s petition, concluding that “the
colloquy between the Court and [Appellant] more than satisfies the
requirement that the defendant was freely, knowingly, intelligently and
voluntarily entering his plea of guilty to the charges” and that trial counsel
was not ineffective. PCRA Court Opinion, 5/24/14, at 9. This appeal
followed.
Appellant states two questions for our consideration:
I. Was Appellant’s plea counsel constitutionally ineffective
because he initially retained the wrong type of medical
expert to properly defend the case?
II. Was Appellant’s plea counsel constitutionally ineffective
because he failed to counsel Appellant at the plea hearing
that his plea lacked a sufficient factual basis?
Appellant’s Brief at 3.
Our standard of review of an order denying PCRA relief is whether the
record supports the PCRA court’s determination and whether the PCRA
court’s determination is free of legal error. Commonwealth v. Phillips, 31
A.3d 317, 319 (Pa. Super. 2011) (citing Commonwealth v. Berry, 877
A.2d 479, 482 (Pa. Super. 2005)). The PCRA court’s findings will not be
disturbed unless there is no support for the findings in the certified record.
Id. (citing Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super.
2001)). Where supported by the record, a PCRA court’s credibility
determinations are binding on a reviewing court. Commonwealth v.
Mitchell, 105 A.3d 1257, 1277 (Pa. 2014) (citation omitted).
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Both of Appellant’s questions challenge trial counsel’s representation.
In order to succeed on a claim of ineffective assistance of counsel (“IAC”),
an appellant must demonstrate (1) that the underlying claim is of arguable
merit; (2) that counsel’s performance lacked a reasonable basis; and (3)
that the ineffectiveness of counsel caused the appellant prejudice.
Commonwealth v. Pierce, 786 A.2d 203, 213 (Pa. 2001). “A failure to
satisfy any prong of the ineffectiveness test requires rejection of the claim of
ineffectiveness.” Commonwealth v. Daniels, 963 A.2d 409, 419 (Pa.
2009) (citing Commonwealth v. Sneed, 899 A.2d 1067 (Pa. 2006)). We
have explained that trial counsel cannot be deemed ineffective for failing to
pursue a meritless claim. Commonwealth v. Loner, 836 A.2d 125, 132
(Pa. Super. 2003) (en banc). It is presumed that the petitioner’s counsel
was effective, unless the petitioner proves otherwise. Commonwealth v.
Williams, 732 A.2d 1167, 1177 (Pa. 1999). We are bound by the PCRA
court’s credibility determinations where there is support for them in the
record. Commonwealth v. Battle, 883 A.2d 641, 648 (Pa. Super. 2005)
(citing Commonwealth v. Abu-Jamal, 720 A.2d 79 (Pa. 1998)).
With regard to the second IAC prong, we have reiterated that trial
counsel’s approach must be “so unreasonable that no competent lawyer
would have chosen it.” Commonwealth v. Ervin, 766 A.2d 859, 862-863
(Pa. Super. 2000) (quoting Commonwealth v. Miller, 431 A.2d 233 (Pa.
1981)). Our Supreme Court has long defined “reasonableness” as follows:
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Our inquiry ceases and counsel’s assistance is deemed
constitutionally effective once we are able to conclude that the
particular course chosen by counsel had some reasonable basis
designed to effectuate his client’s interests. The test is not
whether other alternatives were more reasonable, employing a
hindsight evaluation of the record. Although weigh the
alternatives we must, the balance tips in favor of a finding of
effective assistance as soon as it is determined that trial
counsel’s decision had any reasonable basis.
Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa. 1987) (quoting
Commonwealth ex rel. Washington v. Maroney, 235 A.2d 349 (Pa.
1967)) (emphasis in original).
Appellant first claims that trial counsel was ineffective in hiring the
wrong medical expert. Appellant’s Brief at 9. According to Appellant, “[a]
defense expert with specialized knowledge, like Dr. Patrick Barnes, could
have argued to the jury one of the many differential explanations for the
appearance of a subdural hematoma including accidents, prenatal
conditions, genetic conditions, metabolic disorders and infectious disease.”
Appellant’s Brief at 13 (footnote omitted). The Commonwealth responds
that trial counsel “exercised a reasonable defense strategy in retaining Dr.
Smith as the defense expert, but also managed to secure qualified experts
as resources for the defense at no cost.” Commonwealth’s Brief at 15.
The PCRA court recounted trial counsel’s testimony regarding selection
of an expert as follows:
[Trial counsel] testified that he received full discovery from
the District Attorney’s Office in this case and his estimate was
that the medical records were at least a banker box full of said
records.
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[Trial counsel] further testified that he went through all of
the discovery materials that he had been provided and that he
subsequently retained an expert for possible testimony at trial.
[Trial counsel] testified that while he was waiting for the
complete discovery in this matter he began to approach and
correspond with numerous experts to determine what their level
of interest would be in testifying as an expert in the instant case.
[Trial counsel] testified that because the Commonwealth’s
expert was a doctor from UPMC that many doctors in the
Pittsburgh area would not be willing to testify at trial.
[Trial counsel] then testified that he looked for a pediatric
radiologist outside of the UPMC network but someone who was
within a reasonable distance.
[Trial counsel] indicated that he had spoken with doctors
from [The] Johns Hopkins [Hospital], Hershey, NYU and Ohio
State, however they all wished to have a retainer of $10,000
upfront before they would begin looking at the records in this
case.
Prior to [trial counsel] talking with the pediatric
radiologists . . ., he indicated that he had hired a Dr. Smith who
had testified in these types of cases in the past. Also, [trial
counsel] testified that he had spoken to another doctor in the
Pittsburgh area who was very familiar with “shaken baby
syndrome.” The name of that doctor would be Dr. [K]arl
Williams and it was Dr. [K]arl Williams who suggested that
[defense counsel] contact Dr. Smith as a possible expert witness
in this case.
** *
[Trial counsel] indicated that Dr. Smith then agreed to do
a file review and said file review was done . . . .
[Trial counsel] testified that Dr. Smith was the Chief
Medical Examiner of Beaver County and that when [trial counsel]
asked Dr. Smith if he had handled any previous shaken baby
cases, he had indicated that Dr. Smith had told him that he had
handled several.
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Also, [trial counsel] testified that it was important to him
([trial counsel]) that every time Dr. Smith had handled a case
like the present case, the Commonwealth’s witness was Dr.
Janice Squire from UPMC Children’s Hospital and this was the
witness that the Commonwealth intended to call as an expert in
their case-in-chief.
[Trial counsel] indicated that initially he was satisfied with
Dr. Smith, however, as more medical records were delivered to
[trial counsel] it was suggested to him [by Dr. Williams who was
acting pro bono and Dr. Smith] that one Dr. Patrick Barnes
should be consulted in this matter.
* * *
[Trial counsel] testified that because Dr. Barnes was a
professional acquaintance of Dr. Williams, [the latter] contacted
Dr. Barnes and Dr. Barnes agreed to review the medical records
and write an opinion as to what he thought. At this time, Dr.
Williams selected the necessary medical records from the
banker’s box and those records were mailed to Dr. Barnes. Dr.
Barnes wrote a report and sent it back to [trial counsel].
* * *
[Trial counsel] testified that after he had reviewed Dr.
Smith’s report [he believed] that Dr. Smith had provided [trial
counsel] and his client with a defense.
[Trial counsel] testified that he thought it was a good
defense[;] however, for other reasons outside of that, it was a
bad idea to go to trial but there was a defense that was a viable
option in this case.
[Trial counsel] testified that Dr. Barnes had provided to
him a report and that the conclusion of his report was that there
were a series of diagnostic tests that need to have been
performed to rule out other possible causes relative to the injury
to the child. Some of those causes could have been genetic and
it was possible that a certain genetic disorder may have caused
the injury in question.
* * *
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When [trial counsel] was asked by the [PCRA] court
[whether] one of the biggest problems that he would face as a
defense attorney in the instant case was the fact that [Appellant]
made a statement saying that he was in sole custody of the child
and that the mother had related that when the child was placed
in [Appellant’s] custody, the child was perfectly fine and when
the mother had returned home, the child was in a very damaged
condition. [Trial counsel] answered that question by indicating
that the Court’s question was 100% accurate. [Trial counsel]
testified that he filed motions to try to keep that type of
information out[;] however motions filed by [trial counsel] were
denied by the [trial court]. [Trial counsel] further testified that
[Appellant] had made admissions in Children’s Hospital which
Detective Weaver had put in his report. When asked by counsel
for [Appellant] if it was [of] utmost importance in this case to
hire the right expert, [trial counsel] answered by saying that he
believed he did have the correct expert.
[Trial counsel] testified that he did go to Judge Hathaway
for a second expert and had requested that Judge Hathaway . . .
hire Dr. Barnes. [Trial counsel] testified that there was a
hearing held before Judge Hathaway and that after hearing on
the matter, [Judge Hathaway] felt that Dr. Smith first of all was
more competent to testify and second, she indicated that there
was not any more money available for experts in this case.
[Trial counsel] was asked why he did not hire Dr. Barnes
as his expert first and [trial counsel] responded by saying that
he was not aware of Dr. Barnes until he had already hired Dr.
Smith and had consulted with Dr. Williams.
PCRA Court Opinion, 5/24/14, at 11–14. Based on trial counsel’s testimony,
the PCRA court concluded as follows:
The Court finds [trial counsel’s] testimony credible and
encompassing as to the efforts he made in representing
[Appellant].
* * *
It is clear from the record that [trial counsel] spent a great
deal of time discussing the medical records and a possible
defense with his client between the time of the Preliminary
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Hearing and the time that the case was called to trial at which
time a plea of guilty was entered by [Appellant].
* * *
At the date set for trial [trial counsel] faced an extremely
difficult and complicated situation. [Trial counsel] had a client
who maintained that he had not injured the infant child in any
manner, however, there was scientific evidence to be presented
by the Commonwealth that showed that [Appellant] was the sole
custodian of the child in question when the child received
massive traumatic brain injuries. Also, [trial counsel] knew that
his client has made additional inculpatory statements to
Detective Weaver and that his client could face an extremely
long period of time of incarceration if he were convicted of the
crimes facing him in this case. . . .
In reviewing this case, this Court finds that every effort
that [trial counsel] made in this case was designed to effectuate
the best interest of [his] client. [Trial counsel] requested and
received discovery, he attempted to find various medical experts
that would be a benefit to his client in this matter and in fact he
located two (2) doctors who had experience in “shaken baby
syndrome” cases and had retained one of those doctors to testify
at trial. Further, [trial counsel] had a second doctor advising
him about a possible defense in this matter. [Trial counsel] also
attempted to receive additional funds from the Court of
Westmoreland County through The Honorable Rita D. Hathaway
and after a hearing she determined that Westmoreland County
was not in a position to pay additional monies for additional
experts in this matter.
In reading the records it becomes clear to this Court that
[trial counsel] did everything possible that he could as a defense
attorney to protect the best interests of [Appellant] in this case.
* * *
In point of fact, this Court finds that the handling of [Appellant’s]
case by [trial counsel] was exemplary because he had taken
every possible step necessary to protect the best interests of his
client[.]
Id. at 17, 18, 20, 21.
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Our review of the record reveals significant support for the PCRA
court’s determination and leads us to conclude that the PCRA court’s
determination is free of legal error. Trial counsel consulted with three
physicians, all notably employed and experienced with shaken baby cases.
Dr. Williams provided pro bono assistance in the form of consultations and
recommendations. N.T. (PCRA), 2/27/14, at 15–16, 51. Trial counsel
learned about Dr. Smith from Dr. Williams four or five months after the
preliminary hearing. Dr. Smith reviewed the medical records, provided a
written report, and was prepared to testify as an expert at trial. Id. at 12–
13, 17–18. Trial counsel learned about Dr. Barnes six to eight months after
he had hired Dr. Smith. Dr. Barnes provided pro bono assistance in the
form of consultations, a review of medical records, and a report. Id. at 15,
18–19, 21. Although trial counsel requested funds to hire Dr. Barnes, Judge
Hathaway denied the request because Dr. Smith could provide a good
defense and because no funds were available for a second expert. N.T.
(Motion), 4/23/12, at 20.3 Moreover, trial counsel testified that, if Appellant
had gone to trial, Dr. Barnes would have been the preferred expert, but Dr.
Smith’s testimony was a “viable option.” N.T. (PCRA), 2/27/14, at 20–21.
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3
According to Judge Hathaway, trial counsel could not be deemed
ineffective because he, in fact, requested a second medical expert, but she
exercised her discretion in refusing that request. N.T., 4/23/12, at 19.
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The PCRA court deemed trial counsel’s testimony credible, and we may
not disturb that credibility determination because it is supported by the
record. PCRA Court Opinion, 5/24/14, at 17; Mitchell, 105 A.3d at 1277.
Based on trial counsel’s testimony, we discern nothing in the record even
remotely suggesting that trial counsel’s approach was “so unreasonable that
no competent lawyer would have chosen it.” Ervin, 766 A.2d at 862-863.
Given his training and experience as a forensic pathologist and his familiarity
with the Commonwealth’s expert, who also is a forensic pathologist, Dr.
Smith was qualified to provide expert testimony regarding S.T.’s injuries and
differential causes. Moreover, Dr. Smith would have access to Dr. Barnes’
report in formulating his opinions and presenting testimony to the jury.
Thus, we affirm the PCRA court’s determination that trial counsel was not
ineffective in hiring Dr. Smith as a medical expert.
Appellant’s second IAC claim is that trial counsel advised him to plead
guilty even though the Commonwealth failed to provide a sufficient factual
basis for the mens rea element of the aggravated assault charge.
Appellant’s Brief at 16, 20. Contrarily, the Commonwealth relies on
Appellant’s trial preparation with counsel and the testimony of Ms. Keppler
and Detective Weaver to demonstrate that Appellant was fully aware of the
facts surrounding S.T.’s injury when he pled guilty to aggravated assault.
Commonwealth’s Brief at 17, 20.
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The right to the constitutionally effective assistance of
counsel extends to counsel’s role in guiding his client with regard
to the consequences of entering into a guilty plea.
Allegations of ineffectiveness in connection with the
entry of a guilty plea will serve as a basis for relief
only if the ineffectiveness caused the defendant to
enter an involuntary or unknowing plea. Where the
defendant enters his plea on the advice of counsel,
the voluntariness of the plea depends on whether
counsel’s advice was within the range of competence
demanded of attorneys in criminal cases.
Thus, to establish prejudice, the defendant must show that there
is a reasonable probability that, but for counsel’s errors, he
would not have pleaded guilty and would have insisted on going
to trial. The reasonable probability test is not a stringent one; it
merely refers to a probability sufficient to undermine confidence
in the outcome.
Commonwealth v. Barndt, 74 A.3d 185, 192 (Pa. Super. 2013) (internal
quotation marks and citations omitted).
A factual basis for the plea means:
the facts acknowledged by the defendant constitute a prohibited
offense. This salutary requirement is to prevent a plea where in
fact the legal requirements have not been met; and, to name
and define the offense, supported by the acts, so the defendant
will know the legal nature of the guilt to which he wishes to
plead.
Commonwealth v. Fluharty, 632 A.2d 312, 314 (Pa. Super. 1993)
(quoting Commonwealth v. Anthony, 475 A.2d 1303, 1307 (Pa. 1984)
(footnote omitted)).
Here, Appellant challenges the factual basis for the offense of
aggravated assault, which is defined as follows: “A person is guilty of
aggravated assault if he attempts to cause serious bodily injury to another
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or causes such injury intentionally, knowingly or recklessly under the
circumstances manifesting extreme indifference to the value of human life.
18 Pa.C.S.A. § 2702(a)(1).” Commonwealth v. Smith, 956 A.2d 1029,
1036 (Pa. Super. 2008).
A person acts recklessly with respect to a material element of an
offense when he consciously disregards a substantial and
unjustifiable risk that the material element exists or will result
from his conduct. The risk must be of such a nature and degree
that, considering the nature and intent of the actor’s conduct
and the circumstances known to him, its disregard involves a
gross deviation from the standard of conduct that a reasonable
person would observe in the actor’s situation.
18 Pa.C.S. § 302(b)(3). “The circumstances showing intent to cause serious
bodily injury apply with equal force to prove recklessness to a degree that
one would reasonably anticipate serious bodily injury as a likely and logical
result.” Smith, 956 A.2d at 1037 (citing Commonwealth v. Bruce, 916
A.2d 657, 663–664 (Pa. Super. 2007)). “Direct proof of [an a]ppellant’s
subjective thought process is unnecessary, because the Commonwealth
may prove its case through circumstantial evidence.” Id. at 1037–1038
(citation omitted).
The trial court expressly relied on the testimony of Detective Weaver
and Ms. Keppler “to form a factual basis for the entrance of the guilty plea in
this matter.” N.T. (Plea), 6/5/12, at 40. In response to the prosecutor’s
questioning, Ms. Keppler answered affirmatively that Appellant caused
serious bodily injury to S.T.; that S.T. did not have any physical or mental
problems prior to this incident; that S.T. cannot eat or move by herself, and
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she cannot speak; that Appellant endangered S.T.’s welfare by inflicting
serious bodily injury to S.T.; that Appellant acted knowingly or recklessly
when he inflicted the trauma upon S.T., but not intentionally as far as the
consequences of the injuries to S.T.. Id. at 8–13.
Detective Weaver testified as follows:
Well, my investigation began at Children’s Hospital where
[S.T.] had been taken. I then interviewed the emergency room
doctor at Conemaugh Hospital. I interviewed the pediatrician to
ascertain if there [were] any preexisting conditions. The ER
doctor at Conemaugh told me he felt it was a child abuse case.
Then when the child was at Children’s, they ran the tests,
and due to the findings they found, they agreed that it was a
physical trauma case, an abuse case, shaken baby case.
I interviewed the mom, her aunt, another lady that was
with them on the day that this happened, September 21 st of
2009. Basically the information I had was about noon they left
[Appellant] with [S.T.] and when they left, [S.T.] was finishing
up a bottle. [Appellant] was holding her. And they were taking
[Ms. Keppler’s] sister back to the airport to fly back home. They
didn’t return home until about 4:00 in the afternoon. When they
returned home, [S.T.] was limp. She was unresponsive. And at
that point they took her to the emergency room at Conemaugh.
And then the diagnosis began. And due to the fact that
from the information I received from Children’s Hospital that the
doctor said that if [S.T.] was drinking a bottle at noon, this
injury had not occurred yet because she wouldn’t have been able
to drink a bottle because it was such a severe injury.
And both [Appellant’s] statement and the statement of
[Ms. Keppler], [that] he was feeding her a bottle when they left
[indicate that] . . . she was able to drink the bottle. The doctor
advised me that . . . the fact they came home at four and she
was in an unresponsive condition, and the fact that [Appellant]
told me that he was alone with the baby from noon to four, no
one else was there, based on these facts I filed the criminal
charges.
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* * *
The medical people did not advise me of any preexisting
conditions.
* * *
[Appellant] said that he was alone with the baby sitting on
the couch in the living room. He said that he had finished giving
[S.T.] her bottle and burped her. Laid down on the couch with
[S.T.] on top of him laying [sic] on his chest. The baby fell
asleep and [Appellant] put her in the rocker. About 3:00 p.m.
she woke up fussy. He changed her diaper and she was still
fussy. Then he tried to feed her and she was still fussy.
[Appellant] said that he then put her on his lap and she was
laying [sic] on her back with her head at his knees and her feet
at his waist. He said that he plays a game with her and would
pump her arms up and down and say “choo choo”. He said that
he started doing this.
At this point of the interview he began to cry and said, I
just wanted to wake her up. I was freaking out. He said that he
grabbed her by her forearms and shook her while she was on his
lap. He was just trying to wake her up. [Appellant] said first
that he shook her too hard, then he said he might have shaken
her too hard. And then I asked him if her head was moving back
and forth, and he said, a little but not a lot. He said he never
picked her up and shook her. He said, I was doing “choo choo,”
and it was probably too hard.
N.T. (Plea), 6/5/12, at 18–19, 47–48.
Although the PCRA court did not specifically address Appellant’s
second IAC claim in its decision, it concluded that counsel “did everything
possible that he could as a defense attorney to protect the best interests of
[Appellant]” and “it did everything possible to protect the rights of
[Appellant] and make sure his plea of guilty was freely, knowingly,
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intelligently, and voluntarily made.” PCRA Court Opinion, 5/24/14, at 20.
We agree.
Detective Weaver’s and Ms. Keppler’s testimony, along with
Appellant’s incriminating statements, provide a sufficient factual basis to
support the mens rea element of aggravated assault—that Appellant acted
knowingly or recklessly when he played a game of “choo choo” with his
three-week-old daughter that, by his own admission, was “too hard.” N.T.
(Plea), 6/5/12, at 8–13, 18–19, 47–48. Appellant consciously disregarded a
substantial and unjustifiable risk that his conduct would result in serious
bodily injury to S.T. Thus, because Appellant’s underlying claim of an
insufficient factual basis lacks merit, we conclude that counsel was not
ineffective in advising Appellant to enter a guilty plea to the charge of
aggravated assault.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/10/2015
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