Commonwealth v. Miller

27 Pa. D. & C.5th 515
CourtPennsylvania Court of Common Pleas, Berks County
DecidedMarch 1, 2013
DocketNo. CP-06-CR-0000969-2012
StatusPublished

This text of 27 Pa. D. & C.5th 515 (Commonwealth v. Miller) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Berks County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Miller, 27 Pa. D. & C.5th 515 (Pa. Super. Ct. 2013).

Opinion

LUDGATE, J,

Daniel Miller (hereinafter “defendant”) appeals his conviction and judgment of sentence.

On March 19, 2012, the Commonwealth filed a three count information against defendant in Docket No. 969-2012 consisting of the following offenses:

1) Count 1, aggravated assault, 18 Pa. C.S.A. Section 2702(a)(1);
2) Count 2, simple assault, 18 Pa. C.S.A. Section 2701(a)(1); and
3) Count 3, endangering the welfare of a child, 18 Pa. C.S.A. Section 4304(a)(1).

On October 18, 2012, following a two-day jury trial, defendant was found guilty of the following:

1) Count 2, simple assault, 18 Pa. C.S.A. Section 2701(a)(1); and
2) Count 3, endangering the welfare of a child, 18 Pa. C.S.A. Section 4304(a)(1).

[517]*517On November 7, 2012, defendant appeared before this court for sentencing and the court imposed the following sentence:

1) Count 3, endangering the welfare of a child, 18 Pa. C.S.A. Section 4304 (a)(1), fourteen (14) months to sixty (60) months incarceration, 267 days time served.
2) Count 2, simple assault, 18 Pa. C.S.A. Section 2701(a)(1), twelve months (12) to sixty months (60) incarceration, running consecutive to the sentence imposed in count 3.

On appeal, the defendant raises four (4) detailed claims of error. The court asks that the defendant’s appeal be denied, and his conviction and judgment of sentence affirmed.

I. FACTUAL BACKGROUND

D.M., the victim, is a six-month-old baby. She was bom premature and spent her first 11 days in the Neonatal Intensive Care Unit (NICU). Notes of Testimony (“N.T.”), Trial, at 126-127. Upon discharge from the NICU, D.M. was given an apnea monitor so her breathing could be monitored by her family. N.T., Trial at 126-127. On November 16,2011, at some point between approximately 3:00 P.M. and 5:00 P.M., at 329 Locust Street, Reading, Pennsylvania, Berks County, defendant was the sole adult in an upstairs room with his daughter, the victim, D.M.; her two-year-old brother, D.A.M1.; and her four-year-old [518]*518sister C.K. N.T., Trial, at 144-176. During the period of time in which defendant was alone with D.M., D.A.M. and C.K., Tamara Kerns, mother of D.M., and Rhonda Miller, defendant’s sister, were preparing dinner for the family. N.T., Trial at 157-160. While Ms. Kerns and Ms. Miller were preparing dinner, C.K., came downstairs and reported to her mother, Ms. Kerns, that D.M. was crying. N.T., Trial, at 157-160. Ms. Kerns went upstairs for a couple of minutes and calmed D.M. down. N.T., Trial, at 157-160.

After dinner, around 5:30 P.M., D.M. began to vomit. N.T., Trial, at 112 and 163. In response to D.M. ’s vomiting, Ms. Miller went out to purchase Pedialyte to see if the Pedialyte could curb D.M.’s vomiting. N.T., Trial, at 165-166. When Pedialyte proved unsuccessful, defendant called for an ambulance. N.T., Trial, at 166-167. While changing D.M. before the ambulance arrived, the defendant and Ms. Miller brought to Ms. Kerns’ attention that D.M. had bruises on her body. N.T., Trial, at 167-168.

When the ambulance arrived, D.M. was taken to the emergency room at Reading Hospital. By the morning of November 17, 2011, D.M. had already been transferred to the Children’s Hospital at Hershey Medical Center. Andrea Taroli M.D. was called in as a consultant. N.T., Trial, at 107-108. Dr. Taroli’s diagnosis of D.M.’s injuries included bruising around the kidney; bruising around the sternum and breast bone; subdural hemorrhages; subdural hemorrhages around the brain as well as around the spinal cord; retinal hemorrhages; and slight anemia, which represented blood loss into the bleeding around the brain and the bruises. N.T., Trial, at 113-115.

[519]*519Dr. Taroli testified that D.M.’s injuries were caused by someone grasping the child and squeezing her chest about 12-18 hours prior to the time Dr. Taroli examined D.M., N.T., Trial, at 113-124.

On the same day as Dr. Taroli’s examination, C.K. told Nicole Robinson, an employee at Berks County Children and Youth Services, that she saw her father, in an angry state, “squish” D.M. N.T., Trial at 198-200 and 234-237. C.K. reiterated the same story to Ms. Robinson on December 15th, when C.K. used a doll to show Ms. Robinson how her father squeezed D.M. N.T., Trial, at 234-237.

On February 14, 2012, the defendant was arrested.

II. PROCEDURAL HISTORY

On October 18, 2012, following a two-day juiy trial, defendant was found guilty of the following:

1) Count 2, simple assault, 18 Pa. C.S.A. Section 2701(a)(1); and
2) Count 3, dndangering the welfare of a child, 18 Pa. C.S.A. Section 4304 (a)(1).

On November 7, 2012, defendant appeared before this court for sentencing. The defendant’s offense gravity score, prior record score, applicable sentencing guidelines, and sentence recommendations were placed on the record:

The Court: ... So with a prior record score of 2, the offense gravity score for the Simple Assault?
Assistant District Attorney (Mr. Kurland): Is a 4, your [520]*520honor, which would make the guidelines restorative sanctions to not less than 12 months - up to 12 months. The aggravated range going up to 15 months.
The Court: And mitigated wouldn’t be applicable.
Assistant District Attorney (Mr. Kurland): Correct.
The Court: And he was also charged with endangering the welfare of children.
Assistant District Attorney (Mr. Kurland): That —
The Court: Does that merge?
Assistant District Attorney (Mr. Kurland): No, it would not, your honor. It has different elements. That - he was at. That has an offense gravity score of 5. The standard range would be 3 to 14 months. The mitigated range would begin at restorative sanctions. The aggravated range would go up to 17 months.
The Court: And the defendant’s adopted the written presentence investigation report.
Why don’t you put the recommendation from the Commonwealth, and then, of course, I’ll hear from Mr. Fitzgerald.
Assistant District Attorney (Mr. Kurland): Thank you, your honor
Assistant District Attorney (Mr. Kurland): That on the endangering welfare of children, that you impose [521]*521a sentence of 14 to 60 months, followed by 12 to 60 months on the simple assault. This would be a —
The Court: Twelve to how many months?
Assistant District Attorney (Mr. Kurland): To 60 months. It’s a misdemeanor of the first degree because the victim was under 12 —
Assistant District Attorney (Mr. Kurland): The total recommended sentence on both counts, your honor, would be 26 months to 120 months, or just over 2 years, with a maximum of 10 years.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Commonwealth v. Lloyd
878 A.2d 867 (Superior Court of Pennsylvania, 2005)
Commonwealth v. Cousar
928 A.2d 1025 (Supreme Court of Pennsylvania, 2007)
Commonwealth v. Diggs
949 A.2d 873 (Supreme Court of Pennsylvania, 2008)
Commonwealth v. Walls
926 A.2d 957 (Supreme Court of Pennsylvania, 2007)
Commonwealth v. Payton
392 A.2d 723 (Superior Court of Pennsylvania, 1978)
Commonwealth v. Short
420 A.2d 694 (Superior Court of Pennsylvania, 1980)
Commonwealth v. Stays
40 A.3d 160 (Superior Court of Pennsylvania, 2012)
Commonwealth v. Blakeney
946 A.2d 645 (Supreme Court of Pennsylvania, 2008)
Commonwealth v. Shugars
895 A.2d 1270 (Superior Court of Pennsylvania, 2006)

Cite This Page — Counsel Stack

Bluebook (online)
27 Pa. D. & C.5th 515, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-miller-pactcomplberks-2013.