NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA
IN THE SUPERIOR COURT OF
No. 3056 EDA 2011
Appeal from the Judgment of Sentence October 20, 2011
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0011634-2008
BEFORE: PANELLA, J., OLSON, J., and STRASSBURGER, J.*
MEMORANDUM BY PANELLA, J.
FILED MAY 29, 2013
Appellant, Dana Poindexter, appeals from the judgment of sentence
entered on October 20, 2011, by the Honorable Jeffrey P. Minehart, Court of
Common Pleas of Philadelphia County.
After an extended period of abuse and neglect, Danieal Kelly, a wheel
chair-bound fourteen-year-old girl afflicted with cerebral palsy, died of
infection and malnutrition.
At the time of her death, she weighed just 42
The trial court summarized the factual history as follows.1
Retired Senior Judge assigned to the Superior Court.
The Commonwealth tried Poindexter and Daniel Kelly, the victim’s father,
and Dr. Mickal Kamuvaka together. The jury convicted Daniel Kelly of
(Footnote Continued Next Page)
Abuse and neglect led to the tragic death of Danieal Kelly,
the victim herein, who was born three months premature in
1992 afflicted with cerebral palsy, which rendered her wholly
dependent upon her mother and father, Andrea and Daniel Kelly.
Shortly after Danieal’s birth, the couple separated and she was
left in her mother’s care. During the next four years, she lived
in a dilapidated and unsanitary apartment in Philadelphia. Due
to Ms. Kelly’s neglect of the victim, Danieal’s grandmother
contacted Mr. Kelly and explained that the victim and her
brother were being neglected. Mr. Kelly took custody of both
children and moved to Pittsburgh. At that time, Mr. Kelly was
involved with a woman named Kathleen John, who acted as a
stepmother to the victim and her brother.
Eventually Mr. Kelly, his girlfriend, and the children moved
to Arizona where Danieal was able to attend school where she
received special education services, as well as physical,
occupational, and speech therapy. However, her father failed to
see that she attended school regularly and she was chronically
absent, which deprived her of essential services. In 2000,
Danieal underwent surgery on her hips. Following the surgery,
Mr. Kelly failed to take her to physical therapy. In 2001, Mr.
Kelly split up with his girlfriend, Kathleen John, and he moved
the victim and her brother to another part of Arizona. He did not
enroll her in school and she did not attend school for the next
In July of 2003, Mr. Kelly and the children returned to
Philadelphia and the responsibility to care for Danieal fell to her
mother, who now had seven other children under her care. For
seven months Mr. and Ms. Kelly, the grandmother, and the
children lived together. Danieal was not enrolled in school nor
did she receive medical care. In 2004, Mr. Kelly abandoned the
family leaving Danieal with her mother’s eight other children, the
grandmother, Ms. Kelly’s sister, and other children in [a] small
home on Greenway Avenue. Two years later Danieal died due to
abuse and neglect.
endangering the welfare of a child. The jury convicted Dr. Kamuvaka of the
following offenses: criminal conspiracy, endangering the welfare of a child,
perjury, forgery, tampering with public records, involuntary manslaughter,
and recklessly endangering another person.
Defendant, Dana Poindexter, was an intake worker at the
Department of Human Services (“DHS”). When DHS receives a
report or call alleging abuse or neglect in a particular family, a
worker is assigned and is responsible for investigating the claim
by going out to the home and determining whether the
complaint is founded and whether family services are needed.
Defendant was assigned in 2003 to investigate a complaint of
abuse concerning the victim and her family.
regulations, defendant had sixty days after a call or report came
in to determine whether the family should receive services or
close the case. Defendant, however, did not investigate the
claims of abuse or neglect pertaining to Danieal, he did not open
her case for services, and he did not close her case. Thus,
defendant violated the sixty-day rule.
In May of 2004, a friend of the family, Carolyn Thomas,
called in a report to DHS saying that Danieal was not being cared
for, but the woman’s concern for the victim was ignored and
defendant did not investigate the claim. One month later, an
anonymous neighbor placed a call into DHS reporting that
Danieal was not receiving care.
Again, defendant did not
investigate this claim. In April of 2005, defendant failed to
investigate another claim from Ms. Kelly’s ex-boyfriend, who told
DHS that Danieal had not received medical attention in over two
years, was defecating and urinating on herself, and was without
care. Fortunately for Danieal, a fifth report was received in
September of 2005 and answered by another intake worker,
Ms. Jenkins went out to Ms. Kelly’s house at 1722
Memorial Avenue and discovered Ms. Kelly living alone with her
nine children, all of whom were not enrolled in school, and saw
that Danieal was not receiving medical care. Ms. Jenkins was
able to enroll all of the children in school except for Danieal, who
needed an evaluation. Ms. Jenkins characterized the family as a
Level III, meaning the family needed the highest level of care.
Unfortunately, Danieal did not receive the care she needed and
Dr. Mickal Kamuvaka, program director of Multi-Ethnic
Behavior Health an Agency of Services for Children in their Own
Home (“SCOH”), thereafter was assigned to the case. Because
the family was characterized as a Level III, a SCOH worker at
Dr. Kamuvka’s agency was responsible for going out to the
family’s home twice a week to see Danieal and the other children
face to face each time. The city paid the agency to service
neglected and abused children, but Dr. Kamuvaka made a profit
by hiring unpaid student interns to do the work of licensed social
workers. Dr. Kamuvaka assigned the Kelly family case to Alan
Speed, an unpaid student intern who had no experience in
overseeing families having the kinds of problems the Kelly family
had. Instead of having a licensed or experienced social worker
accompany him on the visit, Dr. Kamuvaka sent only the
inexperienced Mr. Speed to the Kelly residence. In the six
months he was assigned to the case, Mr. Speed made no
progress ameliorating the problems of the Kelly family and he
fail[ed] to provide the victim and her siblings with appropriate
While Mr. Speed was on vacation, Dr. Kamuvaka failed to
send anyone to the house for three weeks and after Mr. Speed’s
internship ended, Dr. Kamuvaka left the family uncovered for
one month before she assigned the case to Julius Murray, a
SCOH worker, who never visited the Kellys. On August 4, 2006,
Danieal’s 42-pound, bedsore-ridden body was found in the back
of the room on her bed….
Trial Court Opinion, 5/29/12, at 2-5 (footnotes omitted).2
A jury convicted Poindexter of endangering the welfare of a child,
perjury, and recklessly endangering another person.
The sentencing court
imposed a period of incarceration and this timely appeal followed.
Poindexter first argues that the trial court erred in admitting
photographs of the victim’s body taken on the date of her death and during
Oddly, Poindexter’s statement of the case presents the facts verbatim from
the investigating grand jury report. See Appellant’s Brief, at 7-17. There
was a trial in this case. The facts derive from the trial not from the grand
her autopsy. Poindexter maintains that the sole function of the photographs
was to shock and outrage the jury. The photographs, however, are not in
the certified record. How can we make findings about the discretion of the
trial court of photographs not in the record? Of course, we cannot.
“[I]t is an appellant’s duty to ensure that the certified record is
complete for purposes of review.” Commonwealth v. Lopez, 57 A.3d 74,
82 (Pa. Super. 2012) (citation omitted). An appellant’s “[f]ailure to ensure
that the record provides sufficient information to conduct a meaningful
review constitutes waiver of the issue sought to be reviewed.” Id. (citation
omitted). Thus, this claim is waived.
Poindexter next alleges that the trial court erred in denying his motion
in limine in which he sought to exclude his personnel file and the testimony
of two witnesses. At trial, the Commonwealth made an offer of proof as to
the two witnesses’ testimony. The witnesses would testify that Poindexter
had neglected his responsibilities in other cases and that his failures had
placed children at risk and he had been warned about his failure to
Poindexter objected, arguing it constituted impermissible
character evidence under Rule 404(b) of the Pennsylvania Rules of Evidence
and that the evidence was irrelevant. See N.T., Trial, 7/7/11, at 4, 11.
We review a trial court’s decision to grant or deny a motion
in limine with the same standard of review as admission of
evidence at trial. With regard to the admission of evidence, we
give the trial court broad discretion, and we will only reverse a
trial court’s decision to admit or deny evidence on a showing
that the trial court clearly abused its discretion. An abuse of
discretion is not merely an error in judgment, but an overriding
misapplication of the law, or the exercise of judgment that is
manifestly unreasonable, or the result of bias, prejudice, ill-will
or partiality, as shown by the evidence or the record.
Commonwealth v. Flamer, 53 A.3d 82, 86 (Pa. Super. 2012).
The trial court ruled that the testimony was admissible because it
showed that Poindexter “was specifically warned of the potential danger his
actions could have upon those cases he was assigned” and that “[e]ach of
these incidents demonstrated that defendant was aware of his duty to
protect those to whom he was assigned to investigate claims of abuse.”
Trial Court Opinion, 5/29/12, at 11.
As such, the trial court found the
evidence was relevant to the crimes charged.
The evidence was not offered to prove that on a particular occasion
Poindexter acted in accordance with his bad character in violation of Rule
404(b)(1) of the Pennsylvania Rules of Evidence. See Commonwealth v.
Hudson, 955 A.2d 1031, 1034 (Pa. Super. 2008) (noting that it is
impermissible to present evidence at trial of a defendant’s prior bad acts or
crimes to establish the defendant’s criminal character or proclivities).
Commonwealth offered the evidence to prove Poindexter’s knowledge and
intent—that Poindexter was specifically warned in the past that the failure to
investigate claims of abuse could have dire consequences.
This is a
permissible use of evidence of past conduct. See Pa.R.E. 404(b)(2). Such
endangerment and endangering the welfare of a child. See 18 Pa.C.S.A. §
2705 and § 4304(a)(1). We can discern no abuse of discretion in the denial
of the motion in limine.3
Poindexter next argues that the Commonwealth presented insufficient
evidence to sustain the convictions of recklessly endangering another person
and endangering the welfare of a child. We disagree.
The standard we apply in reviewing the sufficiency of
evidence is 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. In applying the above test, we
may not weigh the evidence and substitute our judgment for
that of the fact-finder. In addition, we note that the facts and
circumstances established by the Commonwealth need not
preclude every possibility of innocence. Any doubts regarding a
defendant's guilt may be resolved by the fact-finder unless the
evidence is so weak and inconclusive that as a matter of law no
probability of fact may be drawn from the combined
circumstances. The Commonwealth may sustain its burden of
proving every element of the crime beyond a reasonable doubt
by means of wholly circumstantial evidence. Moreover, in
applying the above test, the entire record must be evaluated and
all evidence actually received must be considered. Finally, the
trier of fact while passing upon the credibility of witnesses and
Poindexter also raises for the first time on appeal two additional reasons
why the evidence should have been excluded.
He contends that the
introduction of this evidence violated his due process rights under the United
States Constitution and that it “should have been excluded because the
Personnel File and related testimony had of the appearance of findings of
fact or conclusions of law that pose a serious risk to the fairness of the
judicial process….” Appellant’s Brief, at 25. As Poindexter failed to present
these reasons to the trial court, they cannot provide him relief on appeal.
See Pa.R.A.P. 302(a). See also Commonwealth v. Arroyo, 723 A.2d 162,
170 (Pa. 1999) (“[I]f the ground upon which an objection is based is
specifically stated, all other reasons for its exclusion are waived....”).
the weight of the evidence produced, is free to believe all, part
or none of the evidence.
Commonwealth v. Helsel, 53 A.3d 906, 917-918 (Pa. Super. 2012)
The pertinent statutory definition of endangering the welfare of a child
“A parent, guardian or other person supervising the welfare of a child
under 18 years of age, or a person that employs or supervises such a
person, commits an offense if he knowingly endangers the welfare of the
child by violating a duty of care, protection or support.” 18 Pa.C.S.A. §
4304(a)(1). Here, Poindexter, as the assigned DHS caseworker, had a duty
to investigate the claims of abuse and neglect.
Poindexter failed to meet
reporting deadlines and did not physically investigate the claims of abuse
and neglect he received over a two-year period.
During that period, the
victim was subject to horrific abuse and neglect. Such evidence is sufficient
to sustain the conviction of endangering the welfare of a child.
We next consider whether the Commonwealth presented sufficient
evidence to sustain the conviction for recklessly endangering another
“A person commits a misdemeanor of the second degree if he
recklessly engages in conduct which places or may place another person in
danger of death or serious bodily injury.” 18 Pa.C.S.A. § 2705. “The mens
rea required for this crime is a conscious disregard of a known risk of death
or great bodily harm to another person.” Commonwealth v. Cottam, 616
A.2d 988, 1004 (Pa. Super. 1992) (citations omitted).
received numerous reports of abuse and neglect over an extended time
period—and he did nothing. His behavior evidenced a conscious disregard of
great bodily harm to the victim.
As such, the evidence is sufficient to
sustain the conviction.
Lastly, Poindexter argues that he is serving an illegal sentence as the
sentencing court imposed fines and costs without determining his ability to
pay. This issue is completely meritless.
The sentencing court did not impose fines in this case.
10/20/11 (expressly noting that the fines “amount” to “$0.00”).
sentencing court did impose costs ($688.94) and an award to the crime
victims’ compensation fund ($60.00).
However, there is no mandate that
the sentencing court determine the defendant’s ability to pay when imposing
costs. See 18 P.S. § 11.1101.4
Judgment of sentence affirmed. Jurisdiction relinquished.
In fact, “[t]he defendant's liability for costs is not part of the punishment
for the offense, as it is not a sentence to pay something in addition to any
penalty imposed by law.” 16B West’s Pa. Prac., Criminal Practice § 31:35
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