holding that evidence was sufficient for EWOC where, even though defendant was not instructed on the dangers of Shaken Baby Syndome, he violently shook his child with enough force to cause an abusive head trauma which could threaten the child’s physical and/or psychological welfare; “[i]t takes nothing more than common sense for an adult … to know that violently shaking an infant child with enough force to cause an abusive head trauma - 24 - J-S08018-23 could threaten the child’s physical and/or psychological welfare.”
How later courts described this case
- holding that evidence was sufficient for EWOC where, even though defendant was not instructed on the dangers of Shaken Baby Syndome, he violently shook his child with enough force to cause an abusive head trauma which could threaten the child’s physical and/or psychological welfare; “[i]t takes nothing more than common sense for an adult … to know that violently shaking an infant child with enough force to cause an abusive head trauma - 24 - J-S08018-23 could threaten the child’s physical and/or psychological welfare.”
- holding that evidence was sufficient to find Smith possessed the requisite mens rea to commit aggravated assault, EWOC, and REAP where neurosurgeon testified that the traumatic brain injury suffered by Smith’s child while in Smith’s care was consistent with violent shaking
- holding court cannot impose generalized, open-ended restitution order at sentencing and then "work out the details" and amounts at later date; order of restitution "to be determined later" is ipso facto illegal
- noting a claim that restitution was excessive challenges the discretionary aspects of the sentence, while a claim that restitution was inappropriate challenges the legality of the sentence
Written by the judges who cited it.
The opinion
CONCURRING STATEMENT BY
KLEIN, J.:
¶ 1 I fully agree with and join the opinion of my distinguished colleague. I write separately to note my view that upon remand certain factors must be taken into consideration when determining the amount of the restitution. Under the restitution statute, 7 it is the obligation of the trial judge to fix a number for restitution, not merely to impose a cap. The restitution statute states that “the court shall specify the amount and method of restitution.” 18 Pa.C.S.A. § 1106(c)(2) (emphasis added). Here, the court ordered restitution up to a maximum of $1,481,562.54, which was later reduced to $1,472,942.59. It did not specify an amount. This is essentially an order of restitution “to be determined later,” and is “illegal.” Mariani, 869 A.2d 484, 486 (Pa.Super.2005). Further, under 18 Pa.C.S.A. § 1106(c)(3), the court may modify the restitution amount if circumstances change. A fixed amount based on the evidence is necessary at the time that restitution is ordered, and the Commonwealth is free to seek modification under section 1106(c)(3) as necessary.
¶ 2 However, in considering future restitution, it is not enough merely to look at a table of life expectancy. The court must consider the individual’s unique life expectancy. In this case, both the prior medical condition of the child and his present medical condition may well shorten his life expectancy. Just as in civil cases, it takes expert testimony to compute the life expectancy of a person of a given age with given medical conditions. When actuarial tables are submitted in a personal injury case, the jury must be permitted to consider individual characteristics that impact on the injured party’s life expectancy. Kraus v. Taylor, 710 A.2d 1142 (Pa.Super.1998): Helm v. Eagle Downs-Keystone Racetrack, 385 Pa.Super. 550 , 561 A.2d 812, 813 (1989). In a wrongful death case, a jury must consider the decedent’s prior health, habits, occupations, surroundings, and other elements likely to operate for or against longevity, including the decedent’s mode of life, disabilities, and similar matters. See Rowles v. Evanuik, 350 Pa. 64 , 38 A.2d 255 (1944); Labrador v. City of Philadelphia, 134 Pa.Cmwlth. 427 , 578 A.2d 634 (1990); see also Corrado v. Thomas Jefferson University Hosp., 790 A.2d 1022 (Pa.Super.2001). Similarly, when setting a reasonable amount of restitution, the court should consider any relevant evidence that impact life expectancy.
¶ 3 Likewise, it is not appropriate to compute future medical expenses merely by taking the cost of the first year of *1040 treatment and multiplying that number by the life expectancy. The restitution amount must be determined by considering the likely expenses in the future, which could very well be more or less than the first year costs. Here, the $20,000 figure accepted by the court was based on the child’s treatment for the first year of care, although the treatment for the two most recent years had averaged $13,000 per year. See Commonwealth Exhibits 1 and 2. Once again, to estimate future treatment, it is necessary to have expert testimony.
. 18 Pa.C.S.A. § 1106.