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2002 PA Super 258
COMMONWEALTH OF PENNSYLVANIA,
IN THE SUPERIOR COURT OF
CHARLES M. WASKOVICH,
No. 354 MDA 2001
Appeal from the Judgment of Sentence October 12, 2001
In the Court of Common Pleas of Centre County
Criminal at No. 1999-2113
BEFORE: STEVENS, BENDER, and MONTEMURO*, JJ.
OPINION BY STEVENS, J.:
Filed: August 6, 2002
This is an appeal from the judgment of sentence entered in the Court
of Common Pleas of Centre County following Appellant's conviction on the
charges of neglect of care of a dependent person (serious bodily injury), 18
Pa.C.S.A. § 2713, neglect of care of a dependent person (bodily injury), 18
Pa.C.S.A. § 2713, and recklessly endangering another person, 18 Pa.C.S.A.
§ 2705. On appeal, Appellant contends that (1) the evidence was
insufficient to sustain Appellant's convictions for neglect of care of a
dependent person since the evidence did not establish that Appellant was a
"caretaker" or contractually bound to care for the victim, (2) the verdict was
against the weight of the evidence, and (3) the trial court erred in precluding
Appellant from representing himself during trial.1 We affirm.
1 We have renumbered Appellant's issues for the sake of effective appellate
*Retired Justice assigned to the Superior Court.
Appellant's first claim is that the evidence was insufficient to sustain
his convictions for neglect of care of a dependent person. "The law is settled
in this Commonwealth that in reviewing the sufficiency of the evidence, the
appellate court is required to review all the evidence and all reasonable
inferences drawn therefrom in the light most favorable to the
Commonwealth,...[as verdict winner]." Commonwealth v. Earnest, 563
A.2d 158, 159 (Pa.Super. 1989) (citation omitted). "This standard is equally
applicable to cases where the evidence is circumstantial rather than direct so
long as the combination of the evidence links the accused to the crime
beyond a reasonable doubt." Commonwealth v. Sanders, 627 A.2d 183,
185 (Pa.Super. 1993) (citation omitted). Although a conviction must be
based on "more than mere suspicion or conjecture, the Commonwealth need
not establish guilt to a mathematical certainty." Commonwealth v.
Badman, 580 A.2d 1367, 1372 (Pa.Super. 1990) (citation omitted).
Using the aforementioned standard, the record discloses the following:
Appellant, his wife, and son, who is legally blind, moved to State College,
Pennsylvania so that Appellant's son could attend the Pennsylvania State
University. In 1992, Appellant's son moved into the home of Kenneth B.
Andrews, an elderly gentleman who lived alone. N.T. 7/12/00 at 392. It was
agreed that the son would pay Mr. Andrews $300.00 per month in rent. N.T.
7/12/00 at 392. During this time, Appellant often proposed to Mr. Andrews
that Appellant and his wife move into Mr. Andrews' home, and, in return,
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Appellant would provide various services for Mr. Andrews. At some point in
1993, Mr. Andrews permitted Appellant and his wife to move into the home.
N.T. 7/12/00 at 401. In exchange, the parties agreed that Appellant and his
wife's care of Mr. Andrews would be valued at $7.00 per hour, which would
be applied to the purchase price of Mr. Andrews' house, which the parties'
agreed was $90,000.00. N.T. 7/12/00 at 401. Also, the parties agreed that
the value of $300.00 for rent would not be paid directly to Mr. Andrews, but
rather, it would be applied as equity in Mr. Andrews' residence. In October
of 1996, the parties executed a new agreement, which contained
substantially the same terms, except that the agreement specifically stated
that Appellant and his wife would not be able to give nursing, doctor, or
other health care services to Mr. Andrews.
In January of 1999, the Office of Aging received reports that Appellant
was mistreating Mr. Andrews. The Office of Aging contacted the district
attorney's office, which then contacted the State College Police Department.
As a result of the police department's investigation, Appellant was arrested
and proceeded to a jury trial.
During trial, Khristina Reede, a registered nurse who was employed by
Brookline Home Care and Hospice, testified that she visited Mr. Andrews in
his home in January and February of 1998. N.T. 7/11/00 at 124. Nurse
Reede testified that Mr. Andrews was not mobile, he had difficulty moving
his arms, and he suffered from bedsores. N.T. 7/11/00 at 125. Since Mr.
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Andrews was not able to speak clearly, Nurse Reede asked Appellant about
Mr. Andrews' family, and Appellant refused to answer. N.T. 7/11/00 at 129.
Nurse Reede testified that Appellant was uncooperative as to Nurse Reede
visiting Mr. Andrews and that he insisted she come only at certain scheduled
times. N.T. 7/11/00 at 131. Nurse Reede specifically testified that Appellant
introduced himself as Mr. Andrews' sole caregiver and explained the
circumstances surrounding his presence in Mr. Andrews' home. N.T. 7/11/00
at 132, 139-140. Nurse Reede indicated that she informed Appellant that Mr.
Andrews was entitled to additional in-home medical assistance through
Medicare, but Appellant refused any additional services, indicating that he
wanted control over who entered the home. N.T. 7/11/00 at 135-136.
Grace Black-Wood testified that she was a life-long friend of Mr.
Andrews, and that she often cooked him meals. After Appellant and his
family moved into Mr. Andrews' home, Ms. Wood took meals to Mr. Andrews,
and Appellant told her to stop doing so because it affected Mr. Andrews'
bowels. N.T. 7/11/00 at 154. She testified that on one occasion she visited
Mr. Andrews and discovered that his refrigerator was empty. N.T. 7/11/00 at
Linda L. Fryer, a registered nurse, testified that she evaluated and
assisted Mr. Andrews in January of 1999. N.T. 7/11/00 at 167. She
discovered severe bedsores on Mr. Andrews' hips, N.T. 7/11/00 at 175, and
called an ambulance. N.T. 7/11/00 at 177. Ms. Fryer indicated that Appellant
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accompanied Mr. Andrews to the hospital. N.T. 7/11/00 at 177. Mr. Andrews
subsequently died due to pneumonia and severe infection related to
Cathy Saint Andrews testified that she is a caseworker for the Centre
County Office of Aging and that she was assigned to Mr. Andrews' case. She
testified that she spoke to Mr. Andrews in January of 1999 while he was in
the hospital and that he seemed to be in pain. N.T. 7/11/00 at 186. The
caseworker indicated that she also spoke to Appellant, who indicated that he
provided care services for Mr. Andrews in lieu of paying rent. N.T. 7/11/00
at 191. Ms. Saint Andrews testified Appellant indicated that taking care of
Mr. Andrews was difficult because Mr. Andrews was uncooperative and
spiteful. N.T. 7/11/00 at 191-192.
During his testimony, Appellant admitted the following: While living
with Mr. Andrews, Appellant and his wife took care of the property and Mr.
Andrews. N.T. 7/12/00 at 400. In the beginning, the couple would perform
household chores such as going to the store for Mr. Andrews and mowing
the lawn. N.T. 7/12/00 at 400. However, at some point, Mr. Andrews' health
deteriorated, and he required additional care. Appellant took Mr. Andrews to
visit doctors, N.T. 7/12/00 at 405, helped Mr. Andrews take a bath, N.T.
7/12/00 at 409, 412, changed Mr. Andrews' dressing, N.T. 7/12/00 at 411,
416, and got out of bed during the night if Mr. Andrews called for help, N.T.
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¶10 At the conclusion of all testimony, the jury convicted Appellant of
neglect of care of a dependent person under 18 Pa.C.S.A. § 2713 (serious
bodily injury and bodily injury) and recklessly endangering another person
under 18 Pa.C.S.A. § 2705. Appellant was sentenced to an aggregate of one
hundred and sixty-one days to twenty-three and one-half months in prison.
Appellant filed a post-sentence motion in which he alleged that the trial
court erred in refusing Appellant's request to proceed pro se, the evidence
was insufficient to prove that Appellant was Mr. Andrews' caretaker, and the
verdict was against the weight of the evidence. The motion was denied, and
this timely appeal followed.2
¶11 Appellant contends that the evidence was insufficient to sustain his
convictions for neglect of care of a dependent person. Specifically, Appellant
contends that the Commonwealth failed to prove that he was a "caretaker"
as is required under 18 Pa.C.S.A. § 2713. We disagree.
¶12 Section 2713 provide, in pertinent part, the following:
(a) Offense defined.-A caretaker is guilty of neglect of a care-
dependent person if he:
(1) Intentionally, knowingly or recklessly causes
bodily injury or serious bodily injury by failing to
provide treatment, care, goods or services necessary
to preserve the health, safety or welfare of a care-
dependent person for whom he is responsible to
2 The trial court did not order Appellant to file a Pa.R.A.P. 1925(b)
statement, and no such statement was filed. The trial court filed an opinion.
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(f) Definitions.-As used in this section, the following words and
phrases shall have the meanings given to them in this
"Caretaker." Any person who:
(3) has an obligation to care for a care-dependent
person for monetary consideration in the settings
described in paragraph (1) or in the care-dependent
(emphasis in original).
¶13 In the case sub judice, we conclude the evidence was sufficient to
establish that Appellant was Mr. Andrews' caretaker for Section 2713
purposes. For example, Appellant admitted that he and his wife signed a
contract with Mr. Andrews whereby Appellant and his wife would provide
care for Mr. Andrews at the rate of $7.00 per hour, which would be applied
to the purchase price of Mr. Andrews' home. Appellant admitted during his
testimony that he took care of Mr. Andrews. While Appellant indicated that,
in the beginning, the care consisted of performing basic household duties
(such as shopping and mowing the lawn), he admitted that, as Mr. Andrews'
health deteriorated, Appellant performed health-related duties (such as
taking Mr. Andrews to the doctor, giving him a bath, changing his dressing,
and attending to him during the night). Nurse Reede testified that Appellant
introduced himself as Mr. Andrews' sole caregiver, Appellant controlled
Nurse Reede's visitation of Mr. Andrews, and Appellant refused additional
services for Mr. Andrews' benefit. Grace Black-Wood testified that Appellant
controlled what Mr. Andrews would eat, and Nurse Fryer testified that
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Appellant accompanied Mr. Andrews to the hospital in January of 1999.
Finally, Ms. Saint Andrews testified that Appellant told her that he provided
care for Mr. Andrews in lieu of rent.
¶14 We agree with the trial court that the evidence established that
Appellant had a monetary interest in caring for Mr. Andrews, that Appellant
had an obligation to care for Mr. Andrews, and that such care occurred in Mr.
Andrews' home. We note that the fact the parties' October 1996 contract
indicated that Appellant and his wife would not provide nursing, doctor, and
other health care services does not alter our conclusion. However, Appellant
and his wife chose to undertake such duties in exchange for an equitable
interest in Mr. Andrews' home. As such, we specifically find Appellant was a
"caretaker" under 18 Pa.C.S.A. § 2713.
¶15 Appellant's next claim is that the verdict was against the weight of the
evidence with regard to his convictions for neglect of care of a dependent
person. Specifically, Appellant contends that the existence of the parties'
contract limiting the services given to Mr. Andrews, which was voluntarily
entered, established the affirmative defense found in 18 Pa.C.S.A. §
2713(e)(2). We disagree.
A challenge to the weight of the evidence is addressed to
the sound discretion of the trial court. Absent an abuse of
discretion, we will not disturb the trial court's ruling. A new trial
should be awarded only when the verdict is so contrary to the
evidence as to shock one's sense of justice.
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Commonwealth v. Foreman, 797 A.2d 1005, 1013 (Pa.Super. 2002)
¶16 Subsection 2713(e)(2) provides the following:
(e) Treatment in conformance with care-dependent
person's right to accept or refuse services.-A caretaker or
any individual or facility may offer an affirmative defense to
charges filed pursuant to this section if the caretaker, individual
or facility can demonstrate through a preponderance of the
evidence that he alleged violations result directly from:
(2) the caretaker's, individual's or facility's lawful compliance
with the care-dependent person's written, signed and witnessed
instructions, composed when the care-dependent person is
competent as to the treatment he wishes to receive;....
(emphasis in original).
¶17 Assuming, arguendo, that the parties' October 1996 agreement meets
the requirements of Subsection 2713(e)(2), it is clear that the parties
mutually altered the agreement. At some point, Mr. Andrews asked for
health-related services, and Appellant and his wife complied, charging Mr.
Andrews $7.00 per hour which was applied to the purchase price of Mr.
Andrews' house. As such, we conclude that the verdict does not shock this
Court's sense of justice such that a new trial is required.
¶18 Appellant's final contention is that the trial court erred in precluding
Appellant from representing himself during trial.
While it is well settled that a criminal defendant has the right to
proceed pro se at trial, the right of self-representation is not
absolute. This right may be limited or waived, for instance, if it
is not raised before trial.
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In justifying the need to timely raise the right to self-
representation, courts have recognized, among other things, the
need to minimize disruptions, to avoid inconvenience and delay,
to maintain continuity, and to avoid confusing the jury. In light
of these objectives, when the request for self-representation is
asserted after "meaningful trial proceedings have begun", the
granting of the right rests within the trial judge's discretion.
We agree with and adopt the view expressed by the
following United States Courts of Appeal that meaningful trial
proceedings have begun once the process of jury selection is
commenced. See U.S. v. Lawrence, 605 F.2d 1321 (4th Cir.
1979); Chapman v. U.S., 553 F.2d 886 (5th Cir. 1977). A
defendant's trial strategy can influence the jurors selected, and
the jurors selected can determine trial strategy. The selection
process is a "meaningful trial proceeding" which may have
serious ramifications on the determination of guilt or innocence.
Commonwealth v. Vaglica, 673 A.2d 371, 373 (Pa.Super. 1996) (citations
¶19 In the case sub judice, Appellant's formal request for self-
representation occurred just minutes before trial was scheduled to begin.
The jury had already been selected but was not yet sworn.3 "Therefore, the
decision to allow Appellant to proceed pro se was within the trial court's
discretion." Vaglica, 673 A.2d at 373. When exercising its discretion, the
trial court in this case considered, inter alia, Appellant's reasons for the self-
3 It appears that Appellant may have telephoned the trial court in order to
determine how to proceed pro se sometime prior to July 11, 2000, when
Appellant made his formal request on the record. However, it appears that
the request was made following the selection of the jury. In any event,
assuming, arguendo, that Appellant's request was not untimely made, we
would still conclude that the trial court did not err in precluding Appellant
from proceeding pro se. It is clear from the record that Appellant desired to
proceed with new counsel in front of a judge, and that he did not actually
wish to proceed pro se.
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representation, the quality of Appellant's counsel, Appellant's knowledge of
the charges lodged against him, Appellant's knowledge of the possible
sentences he could receive, and Appellant's knowledge of his possible
defenses. During questioning, it became clear that Appellant did not actually
want to represent himself. N.T. 7/11/00 at 10-12. Rather, Appellant desired
new counsel and a bench trial. N.T. 7/11/00 at 10-14. "Given that
Appellant's desire to proceed pro se was questionable and designed to seek
delay of the trial, the trial court properly exercised its discretion in denying
Appellant's untimely request for self-representation." Vaglica, 673 A.2d at
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