Com. v. Booher, J. ( 2022 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.0.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
JOSHUA TYLER BOOHER
Appellant : No. 1426 MDA 2021
Appeal from the Judgment of Sentence Entered May 21, 2021
In the Court of Common Pleas of Lebanon County
Criminal Division at No: CP-38-CR-0000970-2018
BEFORE: STABILE, J., KING, J., and STEVENS, P.J.E.*
MEMORANDUM BY STABILE, J.: FILED: JUNE 16, 2022
Appellant, Joshua Tyler Booher, appeals from the judgment of sentence
imposed on May 21, 2021 in the Court of Common Pleas of Lebanon County
after a jury convicted him of, inter alia, aggravated assault relating to burn
injuries sustained by two-and-a-half-year-old L.B. on April 21, 2018.
Appellant contends that the evidence was insufficient to convict him of
aggravated assault, that the verdict was against the weight of the evidence,
and that the trial court erred by imposing a sentence in the aggravated range
for his aggravated assault conviction. Following review, we affirm.
The trial court provided a detailed recitation of the facts elicited at
Appellant’s trial, complete with citations to the notes of testimony. See Trial
“ Former Justice specially assigned to the Superior Court.
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Court Opinion, 9/23/21, at 2-13. We hereby incorporate the trial court’s
factual summary as if fully set forth herein. For purposes of this
Memorandum, we provide the following abridged version, focusing on trial
testimony from L.B.’s father, from Appellant, and from the Commonwealth’s
medical expert.
As of April 21, 2018, Appellant was residing with L.B.’s father, Seth Buck
(“Buck”). The two had been in a romantic relationship since November 2017
and had been residing together since January 2018. Buck and L.B.’s mother,
Katrina Tulos, had a week-on/week-off custody arrangement for their son,
L.B. On the date L.B. sustained burns, Buck had custody of the child.
On the night of April 21, 2018, Buck gave his son a bath and put him to
bed wearing a clean diaper, t-shirt, and pants. As Buck dried L.B. off, he did
not notice any marks, bruises, or other injuries on L.B.
Buck left the apartment to buy some hair products at Walmart, an
errand that took approximately 30 to 40 minutes, including travel time. L.B.
was asleep when Buck left. Video from the store, along with receipts for his
purchases, confirmed the time and purchases Buck made.
When Buck returned from Walmart, he saw Appellant running toward
the laundry facility across the street from the apartment. When Appellant
returned to the apartment, the two were talking when they heard L.B.
“fussing.” Buck believed L.B. simply woke up and would go back to sleep.
Shortly thereafter, however, L.B. began to make louder noises, prompting
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Buck to check on him. When Buck entered L.B.’s room, L.B. was holding his
hands out to Buck while saying, “Dada, look.” Notes of Testimony, Trial,
2/23/21, at 71-72. Buck “just remember[ed] his skin — his skin being really
red and loose. It was just dripping off his arms, his hands. He was just
shaking.” Id. at 72.
Buck said that he panicked, tearing through things in L.B.’s room, trying
to figure out what L.B. got into. He checked the burners on the stove in the
kitchen and checked the radiators, but they were cold. He got frozen
vegetables from the freezer to put on L.B.’s arms and called his own mother.
Meanwhile, he kept asking Appellant what happened. Appellant kept saying
he did not know, but he also told Buck to calm down and said, “[WJe just need
to get our stories straight[,]” a comment Buck acknowledged went “way over
my head” at the time. Id. at 72-73.
L.B. was taken to a nearby hospital but was subsequently transferred to
Lehigh Valley Reilly Children’s Hospital (‘Lehigh Valley”) for treatment of
second- and third- degree burns to his hands and forearms. The medical
records also documented bruising on his right shoulder, on his mid-back on
the left and right sides, above his left eyebrow, above his left and right eyelids,
on both cheeks, on his earlobe, and on his left leg. Buck’s mother explained
that the bruises began to appear when they were at the hospital and had not
been visible when they were still at the apartment. It also was noted that dirt
and pine needles were found in L.B.’s diaper.
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L.B. remained hospitalized at Lehigh Valley for three weeks. His medical
treatment was extensive and involved several surgeries and multiple therapy
sessions. The treatment was ongoing at the time of trial and was anticipated
to continue for years to come.
Appellant eventually was arrested and charged with, jnter alia,
aggravated assault, endangering the welfare of children, simple assault, and
recklessly endangering another person (“REAP”).! At his February 2021 trial,
the Commonwealth presented the expert testimony of Debra Esernio-Jenssen,
M.D., Chief of Child Protection Medicine at Lehigh Valley, who is board certified
in both general pediatrics and child abuse pediatrics. Dr. Esernio-Jenssen
explained that the burns sustained by L.B. were bilateral immersion burns,
which involve “a child being forcibly held in scalding water. So their hands—
and in this case, up to the forearms—is immersed and we see what we call
splash marks because they’re being held, so they’re not moving.” Id. at 153.
It was her “opinion that these were inflicted burns.” Id, at 169. Dr. Esernio-
Jenssen also testified about L.B.’s bruises and explained that several of L.B.’s
bruises had “high specificity for child abuse.” Id. at 156-57. “Other than
[the] bruise on the leg . . . which I think is a typical location that we see
accidental bruises, all the other bruises and the locations are highly suspicious
of physical abuse and something [she] would consider abusive bruising.” Id.
1 18 Pa.C.S.A. §§ 2702(a)(1), 4304(a)(1), 2701(a)(1), and 2705,
respectively.
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at 162. It was her “medical opinion that [L.B.] suffered physical abuse
through bruising and an immersion burn.” Id, at 177.
After the Commonwealth rested, Appellant presented expert testimony
from a plumber who explained that Buck and Appellant’s landlord was using a
furnace to heat the hot water for the apartments in their building. When heat
is generated from a furnace, water temperature can change suddenly and can
easily reach a temperature of 160 degrees with steam visible. By the time
the expert first visited the building in the fall of 2019, the water heater had
been replaced with one installed sometime in 2019, the year after L.B. was
burned. Although the furnace had not been replaced, it was no longer being
used to feed the hot water, as it was when L.B. was burned, as evidenced by
State Police photos taken shortly after the incident. Id. at 199-204, 209.
Appellant testified on his own behalf. Although he pleaded ignorance in
his statements to police on the night of the incident, at trial he testified that
he went into L.B.’s room while Buck was at Walmart and discovered that L.B.
had gotten into chocolate from his Easter basket. Appellant stated that he
was holding L.B. up at the kitchen sink to wash chocolate from his hands and
mouth when “before I knew it, it was just a—there was steam and I—I freaked
out. I jumped back and he took a pretty good fall to the counter ledge and
“a
fell down onto the floor.” Id, at 221. Appellant explained that he was more
concerned about the fall. He noticed L.B.’s hands were red but did not believe
L.B. required medical attention. He picked L.B. up, walked him back to his
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room, and put him in bed with a stuffed animal. He then left the apartment
for the laundry facility.
When Buck returned and discovered L.B.’s condition, Appellant agreed
it was obvious L.B. required medical care. When Buck’s mother arrived at the
apartment, she asked what happened and Appellant “just kept backing myself
into a corner. I—I didn’t want to say what happened. I didn’t think anybody
would believe that my ultimate goal in being with L.B. was I always wanted to
make [Buck] proud and make him happy.” Id. at 224-25. He stated that he
wanted to tell Buck, and tell everybody, what happened but he was scared.
Id. at 225, 228. He claimed his attorney for an unrelated matter told him not
to say anything to anybody. Id. at 227. Appellant testified that when the
investigating officer, Pennsylvania State Police Corporal Miller, left a voice mail
message saying she wanted to meet to talk more about what happened, “I
had ran that by with my prior counsel at that time and counsel told me, no,
we're not—you know, we’re not doing that.” Id. at 228.
Following Appellant’s testimony, the Commonwealth recalled Dr.
Esernio-Jenssen to the stand and asked if her opinion had been altered, having
seen the layout of the kitchen sink and having heard Appellant’s testimony.
She detailed why it did not change her “medical opinion that this was a forced
immersion burn and that the bruising pattern is not consistent with, you know,
hitting or face planting onto this counter.” Id, at 244.
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The jury returned a verdict of guilty on the charges noted above. On
May 19, 2021, the court sentenced Appellant to a term of 66 months to 12
years in prison for aggravated assault and a concurrent term of 18 months to
five years for endangering the welfare of children. The simple assault and
REAP charges merged for sentencing.
Appellant filed a post-sentence motion, which the court denied. This
timely appeal followed. Both Appellant and the trial court complied with
Pa.R.A.P. 1925.2
Appellant asks us to consider three issues in this appeal:
1. Whether the evidence presented by the Commonwealth at trial
was not sufficient to prove the charge of Aggravated Assault
beyond a reasonable doubt?
2. Whether the trial court abused its discretion when it denied
Appellant's Motion for a New Trial based on the weight of the
evidence?
3. Whether [the] trial court abused its discretion when sentencing
[Appellant] to an aggravated range because the trial court
stated that it believed [Appellant] did not act with the required
mental state to cause said injury failing to establish a material
element of the crime and the stated factors relied upon to
aggravate the sentence were elements of the crime itself?
Appellant’s Brief at 7.
2 We remind Appellant that a copy of the Rule 1925(b) statement is to be
appended to an appellant’s brief. See Pa.R.A.P 2111(a)(11) and (d).
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In his first issue, Appellant challenges the sufficiency of the evidence
supporting his conviction of aggravated assault. As this Court reiterated in
Commonwealth v. Miller, 172 A.3d 632 (Pa. Super. 2017):
We review claims regarding the sufficiency of the evidence by
considering whether, “viewing all the evidence admitted at trial in
the light most favorable to the verdict winner, there is sufficient
evidence to enable the fact-finder to find every element of the
crime beyond a reasonable doubt.” Commonwealth v. Melvin,
103 A.3d 1, 39 (Pa. Super. 2014). Further, a conviction may be
sustained wholly on circumstantial evidence, and the trier of fact—
while passing on the credibility of the witnesses and the weight of
the evidence—is free to believe all, part,or none of the
evidence. Id. In conducting this review, the appellate court may
not weigh the evidence and substitute its judgment for the fact-
finder. Id. at 39-40.
Id. at 640. Further:
“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). The Crimes Code defines “serious bodily
injury” as “bodily injury which creates a substantial risk of death
or which causes serious, permanent disfigurement, or protracted
loss or impairment of the function of any bodily member or organ.”
18 Pa.C.S. § 2301.
Id. at 640-41 (cleaned up).
It is undisputed that L.B. suffered serious bodily injury. Importantly,
“[w]here the victim suffers serious bodily injury, the Commonwealth is not
required to prove specific intent.” Commonwealth v. Patrick, 933 A.2d
1043, 1046 (Pa. Super. 2007) (citing Commonwealth v. Nichols, 692 A.2d
181, 185 (Pa. Super. 1997) and Commonwealth v. Hlatky, 626 A.2d 575(Pa. Super. 1993)). Rather,
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[t]he Commonwealth need only prove the defendant acted
recklessly under circumstances manifesting an extreme
indifference to the value of human life. For the degree of
recklessness contained in the aggravated assault statute to occur,
the offensive act must be performed under circumstances which
almost assure that injury or death will ensue.
Id. (cleaned up) (citations omitted) (emphasis in original).
Here, the trial court considered Appellant’s contention that the
Commonwealth failed to prove that Appellant had the requisite mental state
to commit aggravated assault, noting Appellant’s assertion that there was no
evidence he intended to cause L.B.’s injuries. However, as this Court
announced in Patrick, proof of specific intent is not required if the victim
suffers serious bodily injury. Id.Because the fact that L.B. sustained serious injury is not contested, “the
Commonwealth had the burden of proving that [Appellant] acted recklessly
under circumstances manifesting an extreme indifference to the value of
human life.” Hlatky, 626 A.2d at 581. As defined in Section 302(b)(3):
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.A. § 302(b)(3).
As the trial court recognized, in cases involving abuse of a child, “it is
sufficient if the defendant acts ‘with conscious disregard of a substantial and
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unjustifiable risk to a child and that his actions deviated from the standard of
conduct that a reasonable person would observe in that situation.’ Trial Court
Opinion, 9/23/21, at 18 (quoting Hlatky, 626 A.2d at 581). As reflected
above, Dr. Esernio-Janssen testified that the burns suffered by L.B. were
immersion burns, not accidental burns, meaning L.B.’s hands were being
forcibly held in scalding water. Notes of Testimony, Trial, 2/23/21, at 153,
169. Further, as Dr. Esernio-Jenssen explained, several of L.B.’s bruises had
“high specificity for child abuse.” Id. at 156-57.
Viewing the evidence and all reasonable inferences therefrom in favor
of the Commonwealth, we conclude the record provides ample support for the
jury to find that Appellant acted at least recklessly, under circumstances
manifesting extreme indifference, causing serious injury to L..B. Therefore,
Appellant's sufficiency challenge to his aggravated assault conviction fails.
In his second issue, Appellant contends the aggravated assault verdict
was against the weight of the evidence.? As our Supreme Court explained in
Commonwealth v. Clay, 64 A.3d 1049 (Pa. 2013):
A motion for a new trial based on a claim that the verdict is against
the weight of the evidence is addressed to the discretion of the
trial court. A new trial should not be granted because of a mere
conflict in the testimony or because the judge on the same facts
would have arrived at a different conclusion. Rather, the role of
3 Appellant properly preserved his weight of the evidence claim by raising it in
his post-sentence motion. See Pa.R.Crim.P. 607(A)(3) (“a claim that the
verdict was against the weight of the evidence shall be raised with the trial
judge in a motion for a new trial. . . in a post-sentence motion.”).
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the trial judge is to determine that notwithstanding all the facts,
certain facts are so clearly of greater weight that to ignore them
or to give them equal weight with all the facts is to deny justice. It
has often been stated that a new trial should be awarded when
the jury’s verdict is so contrary to the evidence as to shock one’s
sense of justice and the award of a new trial is imperative so that
right may be given another opportunity to prevail.
Id. at 1054-55 (internal quotations and citations omitted). Further:
An appellate court’s standard of review when presented with a
weight of the evidence claim is distinct from the standard of review
applied by the trial court:
Appellate review of a weight claim is a review of the exercise
of discretion, not of the underlying question of whether the
verdict is against the weight of the evidence. Because the
trial judge has had the opportunity to hear and see the
evidence presented, an appellate court will give the gravest
consideration to the findings and reasons advanced by the
trial judge when reviewing a trial court’s determination that
the verdict is against the weight of the evidence. One of the
least assailable reasons for granting or denying a new trial
is the lower court’s conviction that the verdict was or was
not against the weight of the evidence and that a new trial
should be granted in the interest of justice.
Id. at 1055 (quoting Commonwealth v. Widmer, 744 A.2d 745, 753 (Pa.
2000) (emphasis added) (internal citations omitted)).*
Appellant contends that “[t]he jury gave too much weight to Appellant
causing the injury” and “was blinded by the nature and extent of the injury[.]”
Appellant’s Brief at 19. As the trial court observed:
4 “A motion for new trial on the grounds that the verdict is contrary to the
weight of the evidence, concedes that there is sufficient evidence to sustain
the verdict. Thus, the trial court is under no obligation to view the evidence
in the light most favorable to the verdict winner.” Widmer, 744 A.2d at 751
(citations omitted).
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Undoubtedly, L.B. suffered horrific burns. It was impossible to
hide the severity of those injuries from the jury. Such evidence
was necessary to establish that L.B. suffered serious bodily injury.
It was uncontroverted that [Appellant] caused these burns to
occur. The Commonwealth provided ample evidence of the cause
of L.B.’s burns by Dr. Esernio-Jenssen’s testimony. It is obvious
that the jury accepted the Commonwealth’s evidence and did not
believe [Appellant’s] version of the incident. We find nothing to
shock our sense of justice in the jury’s determination of the
credibility of these witnesses and we find no reason to disturb its
verdict.
Trial Court Opinion, 9/23/21, at 20.
We find no abuse of discretion on the part of the trial court. Appellant’s
weight of the evidence claim lacks merit.
In his final issue, Appellant argues the trial court abused its discretion
by sentencing Appellant in the aggravated range for his aggravated assault
conviction. As such, Appellant presents a challenge to the discretionary
aspects of sentence.
As this Court has recognized:
“[T]here is no absolute right to appeal when challenging the
discretionary aspect of a sentence.” Commonwealth v. Crump,
995 A.2d 1280, 1282 (Pa. Super. 2010). Rather, an “[a]ppeal is
permitted only after this Court determines that there is a
substantial question that the sentence was not appropriate under
the sentencing code.” Id. A defendant presents a substantial
question when he “sets forth a plausible argument that the
sentence violates a provision of the sentencing code or is contrary
to the fundamental norms of the sentencing process.” Id. In
order to properly present a discretionary sentencing claim, a
defendant is required to preserve the issue in either a post-
sentence motion or at sentencing and in a court-ordered Pa.R.A.P.
1925(b) concise statement. Further, on appeal, a defendant
“must provide a separate statement specifying where the
sentence falls in the sentencing guidelines, what provision of the
sentencing code has been violated, what fundamental norm the
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sentence violates, and the manner in which it violates the
norm.” Id.Commonwealth v. Naranjo, 53 A.3d 66, 72 (Pa. Super. 2012).
In order to challenge the discretionary aspects of his sentence, Appellant
must invoke this Court’s jurisdiction by satisfying a four-part test.
Commonwealth v. Moury, 992 A.2d 162 (Pa. Super. 2010). In Moury, we
explained:
[W]e conduct a four-part analysis to determine: (1) whether
appellant has filed a timely notice of appeal, see Pa.R.A.P.
902 and 903; (2) whether the issue was properly preserved at
sentencing or in a motion to reconsider and _ modify
sentence, see Pa.R.Crim.P. [720]; (3) whether appellant’s brief
has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a
substantial question that the sentence appealed from is not
appropriate under the Sentencing Code, 42 Pa.C.S.A. § 9781(b).
Id. at 170 (citation omitted).
Here, Appellant raised a sentencing claim in his post-sentence motion
and repeated that claim in his Rule 1925(b) statement. However, he did not
include a Rule 2119(f) statement in his brief. Pennsylvania Rule of Appellate
Procedure 2119(f) directs that
[a]n appellant who challenges the discretionary aspects of a
sentence in a criminal matter shall set forth in a separate section
of the brief a concise statement of the reasons relied upon for
allowance of appeal with respect to the discretionary aspects of a
sentence. The statement shall immediately precede the argument
on the merits with respect to the discretionary aspects of the
sentence.
Pa.R.A.P. 2119(f).
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“[C]laims relating to the discretionary aspects of a sentence are waived
if an appellant does not include a Pa.R.A.P. 2119(f) statement in his brief and
the opposing party objects to the statement’s absence.” Commonwealth v.
Brougher, 978 A.2d 373, 375 (Pa. Super. 2009) (citation omitted). However,
the Commonwealth did not object to the absence of the statement. Therefore,
we will not find it waived. See id.We next consider the fourth prong of the test: whether Appellant has
raised a substantial question that the sentence is not appropriate under the
Sentencing Code.
In Moury, this Court stated:
The determination of what constitutes a substantial question must
be evaluated on a case-by-case basis. A substantial question
exists only when the appellant advances a colorable argument
that the sentencing judge’s actions were either: (1) inconsistent
with a specific provision of the Sentencing Code; or (2) contrary
to the fundamental norms which underlie the sentencing process.
As to what constitutes a substantial question, this Court does not
accept bald assertions of sentencing errors. Commonwealth v.
Malovich, 903 A.2d 1247, 1252 (Pa. Super. 2006). An appellant
must articulate the reasons the sentencing court’s actions violated
the sentencing code. Id.Moury, 992 A.2d at 170 (internal quotations and some citations omitted).
Appellant has not articulated any reasons for his assertion that the
sentencing court violated the sentencing code. In essence, he bases his claim
on an assertion that “the trial court stated on the record that he didn’t believe
that Appellant was guilty of the crime of aggravated assault” yet “proceeded
to sentence the Appellant to an aggravated range to a crime the court believed
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he didn’t commit which is an unreasonable decision.” Appellant’s Brief at 22-
23.
Trial court rejected Appellant’s assertion, explaining:
[Appellant] claims that [the c]ourt stated at sentencing that it did
not believe that [Appellant] was guilty of the crime of aggravated
assault; however [Appellant] misconstrues the statements made
by the court at sentencing.
The court did not question [Appellant’s] guilt on the charge of
aggravated assault. We merely stressed that we viewed
[Appellant’s] level of culpability as recklessness within the
language of the statute, and our belief that, although [Appellant]
did not necessarily intend to cause such severe injuries, he did
intend to immerse L.B.’s hands and arms.
. . . [W]e agree with the jury’s determination that [Appellant’s]
culpability rose to the level required by the aggravated assault
statute—that [Appellant] had intentionally held L.B.’s hands and
arms in scalding water, thereby acting “recklessly under
circumstances manifesting extreme indifference to the value of
human life.” 18 Pa.C.S.A.. § 2702(a)(1). This goes beyond the
level of mere recklessness and is the level necessary to sustain
this conviction on this charge.
In this case, we fully discussed the reasons for the sentence
imposed at the sentencing proceeding. Given the severity of L.B.’s
injuries and how they occurred, we determined that [Appellant]
deserved total confinement. In determining the length of that
confinement, we considered the ranges suggested by the
sentencing code and discussed the factors which led us to deviate
to the aggravated range on the charge of aggravated assault. We
also considered the factors relevant to a potential mitigated range
and determined that those did not warrant any lesser sentence.
Trial Court Opinion, 9/23/21, at 21-22 (some capitalization omitted).
To the extent Appellant has raised a substantial question under Section
9721(c)(2), i.e., that the court sentenced him within the guidelines but the
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case involves circumstances where the application of the guidelines would be
clearly unreasonable, we find no abuse of discretion in the trial court’s
imposition of a sentence in the aggravated range. Therefore, we shall not
disturb the sentence.
Judgment of sentence affirmed. In the event of further proceedings,
the parties shall attach a copy of the 9/23/21 trial court opinion to their filing.
Judgment Entered.
Joseph D. Seletyn, Es
Prothonotary
Date: 6/16/2022
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Vv.
JOSHUA BOOHER
APPEARANCES:
NICHOLE EISENHART, ESQUIRE FOR THE COMMONWEALTH
FIRST ASSISTANT DISTRICT ATTORNEY |
JOSHUA HARSHBERGER, ESQUIRE FOR JOSHUA BOOHER
JACOBSON, JULIUS, AND HARSHBERGER
OPINION, TYLWALK, P.J., SEPTEMBER 22, 2021.
After a jury trial was conducted on. February. 23, 2021, Defendant was
convicted of one count of Aggravated Assault (Causing Serious Bodily Injury),
Endangering the Welfare of Children, Simple Assault, and Recklessly Endangering
Another Person? due to injuries inflicted on a young child‘on April 21, 2018 while
the child was in Defendant’s care at his apartment in Myerstown. On May 19,
* Counts 1 through 4, 18 Pa.C.5.A. § 2702(a)(1), 18 Pa.C.S.A, §4304(a)(1), 18 Pa.C.S.A. §2701(a)(1), and 18 Pa.C.S.A.
§2705, respectively, Defendant was also charged with the summary offense of Harassment, 18 Pa.C.5.A.
§2709(a)(1). .
1
2021, we sentenced Defendant to a period of incarceration of sixty-six months to
twelve years on the charge of Aggravated Assault and eighteen months to five
years on the charge of Endangering the Welfare of Children, to run concurrently.
The charges of Simple Assault and Recklessly Endangering Another Person merged
for sentencing purposes. Defendant has filed a Post-Sentence Motion in which he
challenges the sufficiency of the evidence with regard to the charge of Aggravated
Assault, argues that the verdicts were against the weight of the evidence, and
charges that the Court erred in sentencing him within the aggravated range on
the Aggravated Assault charge. Both parties have filed Briefs and the Motion is
presently before us for disposition.
At the jury trial, Katrina Tulos, mother of five-year-old L.B., testified that
her son was born on October 13, 2015. She explained that at the time of this
incident, she and L.B.’s father, Seth Buck, had a week on/week off custody
arrangement. The parents.would pick L.B. up from daycare on alternating Friday
afternoons and keep L.B. for their weeklong period of custody.
On the Friday before the incident, Buck had picked L.B. up from daycare
and taken him to his apartment, which he shared with Defendant. At —
approximately 8:30 to 9:00 that evening, Tulos-.was at a restaurant when she
received a call from Buck telling her to meet him in the emergency room at Good
Samaritan Hospital (“GSH”) because L.B. had been burned. Shortly after she
arrived at the emergency room, Buck arrived with L.B. L.B. was holding out his
arms which were red and blistered and there was fluid running down them. As
the evening progressed, Tulos also noted that bruises began to appear on L.B.’s
- face. Tulos confirmed that L.B. did not have any burns or bruising when she had
dropped him off at daycare on Friday. Tulos identified a number of photographs
which were taken of L.B. that evening which showed L.B.’s injuries. (Exhibits “2,”
“5")
After spending a few hours at GSH, L.B. was transferred to Lehigh Valley
. Hospital. He underwent surgery within the next twenty-four hours. LB.
remained in that facility for three weeks during which he had multiple additional
surgeries and was sedated due to the extreme pain he experienced when his
dressings were changed. Since that time, L.B. has had numerous additional
surgeries and procedures. -He must also undergo web releasing to expand and
Straighten his skin because his hands are contracted and his fingers are locked up.
He has had to attend occupational therapy three times per week and must
perform hand exercises. He continued to Weare splint at the time of the jury
trial.
At the trial, the Commonwealth presented the parties’ stipulation to the
jury. In its Brief, the Commonwealth summarizes the stipulation as follows:
On April 21, 2018, L.B. was two years old. He presented with “bilateral
upper extremity burns extending from mid-forearm to hands obtained just
prior to arrival.” N.T. 2/23/21 at pg. 26, L.B. was seen immediately
“because of high possibility of imminent or life-threatening deterioration in
patient’s condition.” N.T, 2/23/21 at pg. 27. L.B. was in distress when he
was being examined. He had large circumferential burns from mid arms to
his hands and abrasions to his neck, right knee, temporal area, and on his
back. There was dirt and pine needles in his diaper. N.T. 2/23/21 at pg. 27.
L.B. was provided fentanyl so he-could rest confortably. N.T. 2/23/21 at pg.
_ 27, He was.transported to the Lehigh Valley Burn Center. N.T. 2/23/21 at
pg. 27.
(Commonwealth’s Brief at p. 3). Pursuant to the stipulation, the medical records
from GSH and Lehigh Valley Hospital were admitted into evidence. (Exhibits “9”
and “10”)
The Commonwealth next-called Trooper Kenneth Dahler of the
Pennsylvania State Police (“PSP”). Trooper Dahler was on duty as a patrol trooper
on the night of this incident. He and his partner, Trooper George Shimko, were |
dispatched to the GSH emergency room to investigate this incident and arrived
there shortly after midnight. After speaking with the medical professionals, they
were able to observe and interview Tulos, Buck, and Defendant at GSH.
Trooper Dahler spoke.to Defendant and obtained a written statement.
(Exhibit “7”) Defendant told Trooper Dahler that he and Buck had given L.B. a
- 4
bath around 8:45 to 9:00 p.m. and put him to bed. After Buck left for WalMart,
Defendant stated that he had used the restroom and cleaned the apartment.
After he checked on L.B., he walked across the street to the apartment laundry
facility, being gone approximately six minutes: He was adamant that they always
locked the doors when they left the apartment. When he was returning from the
laundry room, Buck was returning home and the two went in and started
watching television. He claimed that nothing seemed out of the ordinary during
this time. After a short time, L.B. began to fuss and Buck went to check on him
and started screaming. When they saw L.B.’s injuries, they called Buck’s mother
and Defendant’s aunt and then left for the hospital, Trooper Miller also arrived at
GSH later in the evening and interviewed Defendant. When speaking with
Corporal Erica Miller, Defendant stated that he had not locked the apartment
door when he went to the laundry room. The Troopers noted that Defendant
seemed annoyed that they were asking him about the incident.
Buck testified that he and Defendant had moved in together around
January 2018. Their apartment was on the first floor of a building which was
located on Railroad Street in Myerstown. The laundry facility was located across
the street in the basement of another building owned by the landlord. Buck
explained that his niece had stayed overnight at the apartment the prior evening
5
and that he and Defendant had taken L.B. and his-niece to the playground earlier
on April 21, 2018. When L.B. became tired, they left the park and dropped his
niece off on the way back to the apartment. When they returned to the
_ apartment, Defendant fell asleep and Buck woke him up for dinner. Buck then
gave L.B. a bath. There was no problem with the water temperature and L.B.
stayed in the tub and played for approximately twenty minutes. L.B. did not have
any bruises or injuries at that point. He placed a new diaper on L.B. and put him
to bed at 9:00, leaving a night light on in his room.
Buck explained that when he returned to the living area, Defendant was
looking through his phone and asked Buck to do something with Defendant's hair.
Buck told him they would need.some hair products from WalMart. The two
argued about who would go to Waimart with Buck ultimately deciding to go for
the products. Before leaving for WalMart, Buck noticed that L.B. was asleep.
When Buck returned, he saw Defendant running across the street to the
laundry room. He went into the apartment and Defendant came in a short time
later, L.B. began to whine and then began to cry. He went into the room and the
night light was off. L.B. was sitting at the edge of his bed with his arms out saying.
“Dada look.” Buck saw that L.B. was shaking, his skin was red and loose and there -
was liquid dripping off his arms and hands. Buck checked the burners and the
‘6
radiators and found nothing in the apartment that could have caused the injuries.
He did not understand the severity of the injuries at that point so he put frozen
vegetables on L.B.’s skin and called his own mother.
Buck explained that he was panicking at that point and saying that he was
going to lose his son. Defendant was also panicking. When asked what
happened, Defendant said he did not know and told Buck “calm down, we just
need to get our stories straight.” (N.T. 73) A short time later, Buck’s mother
arrived at the apartment and they took L.B. to GSH. He called Tulos on the way
and told her to meet them there. Defendant never told him that he had left L.B.
alone or how the injuries had occurred.
Buck explained that when he and Defendant had first moved into the
apartment, they had experienced difficulties with the water temperature and
contacted their landlord. in response, the landlord advised them that the hot
water needed to be diluted. They had always been able to adjust the water
temperature and they had never had a problem with the water temperature prior
to this incident.
Joann Buck, Buck’s mother and L.B.’s grandmother, also testified at the jury
trial. She explained that she received several calls from her son saying that L.B.
had been burned. After receiving the calls, she immediately left her home in
Fredericksburg and estimated that she arrived at the apartment within ten
minutes. When she arrived, she saw that L.B. looked shocked. The skin on his
arms and hands was white and hanging off his body. As they were getting into
the car to leave for GSH, she noticed that Defendant was hesitating and walking
toward his own vehicle. When she asked where he was going, he said that he
wasn’t going to go to the emergency room with them; however, he did go with
them after she told him to get in their car. Mrs. Buck identified a series of
photographs which depicted L.B.’s condition at the hospital. (Exhibit “13”) She
explained that the bruises that developed on his face as the evening went on
were not there when they were at the apartment and only began to appear once
they were at the hospital.
At the trial, Corporal Miller testified that when she arrived at GSH, L.B. had
already been transferred to Lehigh Valley Hospital. She was told that no one
knew what had happened. However, hospital personnel informed her that this
was not something that L.B. would have done to himself and that he was either
dunked in extremely hot water or a chemical. Buck granted permission for the
apartment to be searched on April 22. After receiving permission, Corporal Miller
went to the apartment to check for any explanation as to how L.B. was burned;
however, she found nothing to explain his injuries. She also confirmed that Buck
had gone to WalMart by obtaining surveillance video and receipts, (Exhibit “6)
When she interviewed Defendant at GSH, he seemed irritated. He told her that
he was at the laundry facility for six minutes and insisted that he did not know
how the injuries occurred.
Corporal Milier confirmed that she had never responded to the apartment
complex for burn issues prior to this incident. On May 1, 2018, she, Detective
DiPalo, and Corporal Levan conducted an evaluation of the water temperature in
the kitchen and bathroom of the apartment. (Exhibit “3”) Neither Buck or
Defendant was in the apartment at the time. The highest water temperature they
recorded was 154.2 degrees at the kitchen sink. The landlord had advised
Corporal Miller that the hot water was provided by a furnace which was set at
160 degrees and provided service to eight units.
While the tests were being conducted, Corporal Miller noticed a
handwritten document laying on the coffee table in the living room. Buck
identified the document as being Defendant’s handwriting. (Exhibit “4”) The
document, which was not there when the apartment was originally searched,
gave the same version of the events of April 21, 2018 as Defendant had given to
the Troopers.
The Commonwealth next called Dr. Debra Esernio-Jenssen, the Chief of
Child Protection Medicine at Lehigh Valley Reilly Children’s Hospital. Dr. Esernio-
Jenssen was qualified as an expert in the area of general pediatrics, child abuse,
and child abuse concerning burns. She had reviewed L.B.’s case with Dr. Barbara
Katz, who had evaluated L.B. personally, due to concerns that he might have
suffered abuse. Dr. Esernio-Jenssen noted that the burns on L.B.’s arms had a
clear demarcation between the burned and normal skin and determined that the
injuries were what are known as immersion burns:
So an immersion burn involves a child being forcibly held in scolding water.
So their hands — and in this case, up to the forearm — is immersed and we
see what we call splash marks because they’re being held, so they’re not
moving. And the depth and the uniformity of the burn is also there and
also symmetric.
(N.T. 1/23/21 at 153)
Dr. Esernio-Jenssen further explained that this type of burn would have
required someone to hold L.B.’s hands under water. as there is a natural instinct to
withdraw from pain. She explained that if L.B. had placed his own hands in a sink
filled with scalding water, he would have immediately pulled back when his
fingertips hit the water. Immersion burns take the shape of a glove and there is
equal distribution of the burned area. These burns were not considered to be
flow burns, which result from the flow of water over the body and were not
10
consistent with L.B. washing his hands at the sink and the water suddenly
becoming scalding. In flow burns, the area first struck has the greatest damage.
With flow burns, there is not an even distribution of burning as was the case with
L.B.’s injuries. Dr. Ersenio-Jenssen testified that it would only take a split second
for a child’s skin to burn if being held in water at a temperature of 150 degrees,
Dr. Ersenio-Jenssen explained that L.B. had second and third degree burns
on his hands and arms, equal to ten percent of his body surface. The third degree
burns had the potential to cause the loss of L.8.’s hands. These injuries were
extremely painful and also impacted L.B. emotionally. L.B. would have to be
sedated so that the burned skin could be removed by scrubbing it off. He needed
skin grafts in order for the burns to heal. His fingers became fused together
repeatedly and had to be cut, he developed an infection and required laser
treatments, and multiple surgeries were performed to relieve the pressure in his
hands.
Dr. Ersenio-Jenssen opined that these were inflicted burns which could
have only been caused by submersion and that there was no plausible
explanation as to how they would have occurred accidentally. She explained that
when an adult washes a child’s hands, the adult would have the child’s hands
inside their own while lathering soap and rinsing. If there was a sudden burst of
11
hot water, the adult’s reflexes, just like a child, would cause the adult to withdraw
his hand. If the adult was holding the child up against a sink and the adult forced
himself back, the child was most likely to fall first hitting his feet and then fall
backwards and hit his head. There would be no injuries to the face.
Dr. Ersenio-Jenssen also noted that L.B. had multiple bruises on his body,
including his cheeks, ears, and eyelids. (Exhibit “20”) She explained that these
areas of the body require more force than’ other areas to cause bruising and have
high specificity for child abuse. She explained that the fact that L.B. was bruised
on multiple different body parts and that the bruises were located on areas of the
body that children don’t usually bruise accidentally also pointed to his being a
victim of abuse.
Defendant called Gardell Weaver, a plumber who had examined the water
heater at the building where the apartment was located. Weaver explained that
the water heater that was in use at the time of this incident had been replaced in
2019 and that he had examined the new heater. He had also examined
photographs of the prior water heater taken by the PSP during their investigation.
_ Weaver explained that the photos of the old heater indicated that the particular
unit had no safeguards on it with regard to water temperature. He opined that
the configuration of the old heater and the number of apartments it served were
12
such that sudden bursts of extremely hot water would have been possible at the
time of this incident.
Defendant also testified at the trial. He testified that he was nineteen years ©
old at the time of this incident and had been in a romantic relationship with Buck
since November 2017,’ He noted that he and Buck had previously experienced
problems with the water temperature in the apartment.
He explained that after Buck left for WalMart, L.B. woke up and got into
some Easter candy-and had chocolate all over himself. Defendant picked L.B. up
and wedged him between himself and the kitchen sink to wash his hands. When
. he first started to have L.B. place his hands under the running water, the water
was at a good temperature. However, steam suddenly came.out of the faucet
and he freaked out. He claimed that he “jumped back and he took a pretty good °
fall to the counter ledge and fell down onto the floor.” {N.T. at 221) Defendant
testified that L.8. was not crying and did not seem to be seriously injured so he
consoled him and put him back to bed. When questioned why he did not report
what actually happened to Buck and the police, he said that he did not want to
tell because he did not want to jeopardize his relationship with Buck. He
eventually told his own mother what happened and she was the person who told
him to write down what happened.
13
At Sentencing, the Court stated its belief that L.B.’s burns were not caused
by washing his hands under running water, (N.T. Sentencing, 5/19/21 at-16), and
that “L.B.’s hands had to be held in that water for some period of time.” (N.T.
- Sentencing, 5/19/21 at 16). The Court explained:
| believe that what Mr. Booher did, in terms of holding L.B.’s hands in the
water, was intentional. He intentionally held his hands there, and | think
that was done without reaily understanding what the consequence could
ultimately be.
So | don’t believe that Mr. Booher intentionally intended to cause these
burns to L.B., but he surely is responsible for the reckless nature of his
behavior. And Aggravated Assault, Simple Assault, they talk about reckless
behavior. But him holding the hands under the water, that was intentional.
The consequences that come from that, intending maybe to burn L.B. that
badly, | don’t know that that’s really what he intended.
(N.T. Sentencing, 5/19/21 at 20)
The Court determined that the circumstances of this case warranted a.
sentence in the aggravated range of the Sentencing Guidelines based on a
number of factors:
- Failure to assist the victim or acted in disregard to the victim. (Although —
Defendant did not necessarily know the extent of L.B.’s injuries, he
surely knew he was injured, but just placed him back in his crib.)
-~ Inflicted extreme cruelty on the victim. (The photographs of L.B.’s
injuries were “some the most disturbing photographs | have seen in 45
years in law... .” (N.T. Sentencing 5/19/21 at 21)
14
- The victim was particularly vulnerable because of his youth. (L.B. was in
the care of Defendant.)
- The victim was in the care of the Defendant at the time of the assault.
(Defendant was watching L.B. while Buck went to WalMart.)
- Defendant's lack of concern with L.B.’s wellbeing. (Defendant claimed
to know nothing about how L.B. was burned:
“He knew something happened, and again | don’t think that was the
complete truth, but he knew. Did he cooperate with the police? No.
’ve heard descriptions of Mr. Booher’s attitude and demeanor at the
hospital and whatnot, a seeming lack of concern, a seeming irritation
of, jeez, why are you even talking to me about this?” (N.T. Sentencing
5/19/21 at 22))
- Alesser sentence would depreciate the seriousness of these crimes.
(“There are not a whole lot of things that have come before me in my
30 years as a Judge where I’ve said, you know, this merits an
aggravated-range sentence, but this does in this case.” (N.T.
Sentencing 5/19/21 at 23))”
- Lack of remorse.
(“If | had to look at his behavior that night, | would say remorse was
totally absent. ...
Now, | know he appeared to be somewhat remorseful at trial. ... |
think there are other reasons actually that come into play here. He’s
facing the endgame here. He knows he’s going to the state prison
and it’s just a matter of how much, right? So, sure I’m going to be
remorseful today.” (N.T. Sentencing 5/19/21 at 23))
15
The Court also noted that it had reviewed the mitigating factors of the case
- the fact that Defendant was only nineteen years old at the time of the incident
~and his limited criminal record. ' However, when reviewing the record of his prior
criminal charges we noted that Defendant had changed his explanations of the
incident, just as he had done in this case:
“it caused me to be squeamish, ... You’ve got this issue where first he
says, oh, it was self-inflicted. Then he says, no, wait a minute, | was robbed
and the guy who robbed me - oh, no, wait a minute, it was Seth that
injured me. And then finally he comes back around to it was self-inflicted
with a knife. ... You know, it just made me — |.read that and I think, okay,
what does that say about this person in terms of accepting accountability?
You know, he’s willing to lie — potentially to get Seth in trouble, by the way
— but he’s willing to lie about that incident.” (N.T. Sentencing 5/19/21 at
24) ee
“So when | determined what sentence | would impose in this case, |
looked at all of those factors, | considered the guideline ranges, both the
standard range and the aggravated range, and I’ve selected a sentence
which | believe is appropriate. | know the Commonwealth is asking for a
consecutive sentence. | thought about that. | am not going to do that. |
am going to do the aggravated range on the Aggravated Assault.” (N.T.
Sentencing 5/19/21 at 26)
Sufficiency of the Evidence for Charge of Aggravated Assault
Defendant first challenges the sufficiency of the evidence to support his
conviction for Aggravated Assault. In considering a challenge to the sufficiency of
the evidence, the Court is required to
16
determine whether the evidence, and all reasonable inferences deducible
from that, viewed in the light most favorable to the Commonwealth as
verdict winner, are sufficient to establish all the elements of the offense
beyond a reasonable doubt. We may not weigh the evidence and substitute
our judgment for the fact-finder. The Commonwealth may sustain its
burden of proving every element of the crime beyond a reasonable doubt
by means of wholly circumstantial evidence.
Commonwealth v. Lippert, 887 A.2d 1277, 1279 (Pa. Super. 2005 (internal
citations omitted),
Defendant was charged with Aggravated Assault pursuant to 18 Pa.C.S.A. §
2702(a)(1). To sustain a conviction under this section, the evidence must
establish that the defendant “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.A.§2702(a){1). Serious bodily injury is defined as “bodily injury which
creates a substantial risk of death or which causes serious, permanent
disfigurement, or protracted loss or impairment of function of any bodily member
ororgan.” 18 Pa.C.S.A. §2301.
Defendant charges that the Commonwealth failed to prove the second
element of this offense — that Defendant had the requisite mental state to
commit this crime. He argues that there was no evidence of intentionality as
there was no evidence that he intended to cause such injuries. He further argues
17
that the Commonwealth failed to prove that he acted recklessly as there was no
evidence that he consciously disregarded a substantial and unjustifiable risk that
his conduct would result in a life-threatening injury. He argues that a
determination of recklessness alone is not enough to sustain a conviction.
The Crimes Code defines recklessness as follows:
(3) 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.A. §302(b)(3). With regard to cases involving abuse of a child, it is
sufficient if the defendant acts “with conscious disregard of a substantial and
unjustifiable risk to a child and that his actions deviated from the standard of
conduct that a reasonable person would observe in that situation.”
Commonwealth v. Hlatky, 626 A.2d 575, 581 (Pa. Super. 1993).
The Superior Court has stated that
nothing more than common sense is needed to know that the violent
shaking of an infant child provides for a substantial and unjustifiable risk of
serious bodily injury. Violently shaking the child in light of such an obvious
risk goes far beyond mere criminal negligence, to malice. Given the evident
force of the shaking and the enormous difference in size and strength
between Appellant and the child, the Commonwealth did prove a
heightened degree of recklessness beyond a reasonable doubt.
18
Commonwealth v. Smith, 956 A.2d 1029, 1037 (Pa. Super. 2008).
There is no doubt that L.B. suffered serious bodily injuries. His burns were
so severe that he could have lost his hands. Dr. Ersenio-Jenssen testified that the
pattern of these injuries was such that they could have only been inflicted by the
immersion of L.B.’s arms and hands in scalding hot water. Defendant admitted
that he knew of the problem with the high water temperature well before the
night of this incident and was undoubtedly aware that scalding water could cause
burns to one’s skin. Irrespective of these circumstances, however, he
intentionally submersed L.B.’s hands and arms into scalding water, consciously
disregarding the risk that the scalding water presented a substantial and
unjustifiable risk of injury to L.B. We believe this evidence established that
Defendant was reckless within the meaning of the Aggravated Assault statute and
had the requisite state of mind to support a conviction on this charge.
Weight of the Evidence
Defendant next challenges the weight of the evidence to support his
convictions, charging that the jury was blinded by the severity of L.B.’s injuries,
gave too much weight to the fact that Defendant had caused those injuries, and
failed to consider the evidence regarding his mental state.
19
A verdict is against the weight of the evidence only when the jury's
verdict is so contrary to the evidence as to shock one's sense of justice. A
weight of the evidence claim is primarily directed to the discretion of the
judge who presided at trial, who only possesses narrow authority to upset a
jury verdict on a weight of the evidence claim. Assessing the credibility of
witnesses at trial is within the sole discretion of the fact-finder. A trial judge
cannot grant a new trial merely because of some conflict in testimony or
because the judge would reach a different conclusion on the same facts,
but should only do so in extraordinary circumstances, when the jury's
verdict is so contrary to the evidence as to shock one's sense of justice and
the award of a new trial is imperative so that right may be given another
opportunity to prevail.
Commonwealith v. Blakeney, 946 A.2d 645, 652-653 (Pa. 2008) {internal citations
omitted). The finder of fact is free to believe all, part, or none of the evidence
presented at trial. Commonwealth v. Hlatky, supra.Undoubtedly, L.B. suffered horrific burns. It was impossible to hide the
severity of these injuries from the jury. Such evidence was necessary to establish
that L.B, suffered serious bodily injury. It was uncontroverted that Defendant
caused these burns to occur. The Commonwealth provided ample evidence of
the cause of L.B.’s burns by Dr. Ersenio-Jenssen’s testimony. It is obvious that the
jury accepted the Commonwealth’s evidence and did not believe Defendant’s
version of the incident. We find nothing to shock our sense of justice in the jury's
determination of the credibility of these witnesses and we find no reason to
disturb its verdict.
20
Sentencing
Lastly, Defendant claims error on the part of the Court in sentencing him
within the aggravated range on the charge of Aggravated Assault. He claims that
- Court stated at Sentencing that it did not believe that Defendant was guilty of the
crime of Aggravated Assault; however, Defendant misconstrues the statements
made by the Court at Sentencing.
The Court did not question Defendant’s guilt on the charge of Aggravated
Assault. We merely stressed that we viewed Defendant’s level of culpability as
‘recklessness within the language of the statute, and our belief that, although
Defendant did not necessarily intend to cause such severe injuries, he did intend
to immerse L.B.’s hands and arms.
Defendant argues that recklessness is not sufficient to find a person guilty
of Aggravated Assault. Although recklessness alone may not be sufficient, we
agree with the jury’s determination that Defendant's culpability rose to the level
required by the Aggravated Assault statute — that Defendant had intentionally
held L.B.’s hands and arms in scalding water, thereby acting “recklessly under
circumstances manifesting extreme indifference to the value of human life.” 18
Pa.C.S.A. §2702(a)(1). This goes beyond the level of mere recklessness and is the
level necessary to sustain this conviction on this charge.
21
sentencing is a matter within the discretion of the sentencing court.
Commonwealth v. Whitman, 880 A.2d 1250, 1252 (Pa. Super. 2005). In
formulating an appropriate sentence, the sentencing court must consider “that
the sentence imposed should call for confinement that is consistent with the
protection of the public, the gravity of the offense as it relates to the impact on
the life of the victim and on the community, and the rehabilitative needs of the
defendant.” fd. The sentencing court must consider the sentencing guidelines set
forth at 204 Pa, Code §303.1 et seq. When a sentencing court decides to deviate
from these guidelines, it must provide a written statement of the reason for the
deviation. 42 Pa.C.S.A. §9721(b).
In this case, we fully discussed the reasons for the sentence imposed at the
sentencing proceeding. Given the severity of L.B.’s injuries and how they
occurred, we determined that Defendant deserved total confinement. In
determining the length of that confinement, we considered the ranges suggested
by the Sentencing Code and discussed the factors which led us to deviate to the
aggravated range on the charge of Aggravated Assault. We also considered the
factors relevant to a potential mitigated range and determined that those did not
warrant any lesser sentence, -
22
Defendant complains that we improperly considered his failure to disclose
what happened to L.B. as an infringement on his right against self-incrimination.
However, we made no such remarks and this was not a consideration in the
imposition of his sentence. Rather, we spoke of his attitude, demeanor and
behavior as indicators of his lack of concern and callous disregard for L.B.’s
wellbeing and his lack of remorse for whatever happened to L.B. that evening.
We believe we based the sentence on proper considerations and that the length
of his confinement was appropriate under all the circumstances of the case.
For these reasons, we will deny Defendant’s Post-Sentence Motion.
23