J-S79039-14

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

*Retired Senior Judge assigned to the Superior Court.

COMMONWEALTH OF PENNSYLVANIA, 

 Appellee

v.

MICHAEL SCOTT DASBURG,

 Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1858 EDA 2014

Appeal from the Judgment of Sentence Entered January 14, 2014, 

in the Court of Common Pleas of Bucks County, 

Criminal Division, at No(s): CP-09-CR-0005890-2013

BEFORE: ALLEN, OLSON, and STRASSBURGER, JJ.*

MEMORANDUM BY: STRASSBURGER, J.: FILED JANUARY 13, 2015

Michael Scott Dasburg (Appellant) appeals from the January 14, 2014 

judgment of sentence of eight to twenty years of incarceration imposed 

following his conviction for one count of aggravated assault, 18 Pa.C.S. 

§ 2702(a)(1). We affirm. 

The trial court summarized the facts underlying Appellant’s conviction 

as follows.

On November 4, 2012, the victim, then seven weeks old, 

had developed a fever and was brought to Grand View Hospital 

by his family. Dr. Elizabeth Jamme, M.D., an in-patient pediatric 

hospitalist who worked at Grand View Hospital that day, testified

that as part of the standard of care for infants with high fevers, a 

spinal tap procedure was performed on the victim by Dr. Sheila 

Knerr. The procedure was simple and a typical spinal tap.

Immediately following the procedure, Dr. Jamme evaluated 

the victim and noticed nothing out of the ordinary. After 

approximately two hours, Dr. Jamme was summoned to evaluate 

the victim due to concerns that the victim’s left leg was swollen. 
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X-rays were immediately ordered, and the results showed that 

the victim suffered from a displaced fracture of his left femur. 

Alexandra Ries, a nurse who assisted in the spinal tap 

procedure, testified that in her opinion, nothing was done during 

the spinal tap that could have caused such a fracture, the 

fracture was likely present prior to the procedure, and the spinal 

tap may have displaced the fracture. The victim also had 

subconjunctival hemorrhages, which are essentially patches of 

blood on the surface of the eyeball that can be caused by trauma 

or excessive crying. Dr. Jamme was concerned that the leg 

injury could require immediate surgery due to potential bleeding 

in the region of the leg.

Amongst the individuals present at Grand View on behalf 

of the victim were [Mother] and the Appellant.[1] Upon hearing 

of the displaced fracture, Appellant vocalized that he thought 

that it had to have occurred during the spinal tap procedure. Dr. 

Jamme testified at trial that she had performed one hundred or 

more spinal taps and that she had never heard of a displaced 

fracture occurring during a routine spinal tap. Like Ries, she also 

testified that most likely the fracture in the femur was already 

present at the time of the spinal tap, and it was just displaced 

because of the way the victim had to be held during the spinal 

tap. After additional x-rays were performed, she discovered an 

additional fracture on the other side of the leg, called a 

metaphyseal or bucket fracture, on the very [corner] of one of 

the lower bones. Dr. Jamme testified that this type of fracture is 

pathognominic, meaning there is no cause for it other than a 

traumatic abuse situation. She arranged for transport of the 

victim from Grand View to Children’s Hospital of Philadelphia 

(“CHOP”). The victim was transported by helicopter to CHOP.

Dr. Samantha Schilling, M.D., a pediatrician at CHOP, was 

working as a part of the child abuse team at CHOP and assisted 

in the care of the victim when he was brought in on November 4, 

2012 until November 8, 2012. After Dr. Schilling and her team 

reviewed all of the testing, some of which came back months 

later, they determined that the diagnosis was child physical 

abuse. The first of two skeletal surveys performed on the victim 

 

1 Appellant is Mother’s boyfriend and not the victim’s biological father.
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at CHOP revealed three types of fractures. First, the victim had 

the displaced fracture of his left femur, which is the biggest bone 

in the body, yet it was broken all the way through. Secondly, he 

had approximately four different fractures to his ribs, in 

particular the posterior or back of the ribs and side of his ribs. 

Dr. Schilling explained that posterior fractures of the ribs are 

more concerning for child abuse as they are likely to be caused 

by some compression of the chest such as squeezing or stepping 

on. Finally, the skeletal survey revealed several metaphyseal 

fractures, which were present on the femur and tibia of his right 

leg, the femur of his left leg, the humerus of his right arm, and 

the radius of his left arm.

Subsequently, a second skeletal survey was performed 

approximately two to three weeks later, which confirmed the 

fractures described above and also showed additional injuries 

that were previously present, but not detected. These included 

two more posterior rib fractures, a metaphyseal chip fracture, a 

fracture of the right clavicle, and a fracture in the middle of the 

femur of his right leg. Dr. Schilling testified that the fractures to 

the right clavicle and right femur, as they were through the 

middle of the bone, are likely to be caused from blunt force 

trauma. The skeletal surveys revealed that the fractures were 

also in multiple stages of healing, which Dr. Schilling testified 

was a sign that the victim experienced multiple traumas over 

time, not just one terrible trauma, and these injuries were 

unlikely to have occurred due to an accident. The major femur 

fracture was determined to be newer and the rib fractures were 

older, approximately two to four weeks old when discovered in 

the first skeletal survey.

The victim, being only seven weeks old, and therefore, 

dependent on adult caregivers for everything, could not have 

done something to cause an accident and injure himself. 

Numerous tests were done to determine whether the injuries 

were a result of some other condition such as vitamin D 

deficiency or genetic disorders. Ultimately, it was determined 

that the victim did not have any such condition, and Dr. Schilling 

diagnosed the victim’s injuries as a result of child physical abuse.

The Hilltown Township Police Department investigated 

Appellant and the other family members who cared for the victim 
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to determine who caused the victim’s injuries.[2] [Mother] 

attended college approximately two days per weeks and in this 

time, left the victim in Appellant’s care. On one particular 

morning, after Appellant had watched the victim for the night, 

[Mother] noticed a small bruise right below the victim’s eye, and 

Appellant denied knowledge of its cause. [Mother] also testified 

that she observed Appellant get angry with the victim for crying, 

because of the victim’s picky eating habits, and the victim’s 

resemblance to his biological father. Further, whenever 

Appellant held the victim, whether to change his diapers or to 

feed him, the victim would always cry. When Appellant would 

change the victim’s diapers, Appellant would take the victim to 

his nursery and shut the door behind him. If [Mother] 

attempted to assist as a result of the victim crying, Appellant 

would shut the door or tell [Mother] to trust him and that he 

knew what he was doing. In one instance, Appellant slammed 

the door in [Mother’s] face. On a few occasions, Appellant 

became aggravated that [Mother] kept walking in and left the 

victim on the changing table and told [Mother] to finish. On 

another occasion, Appellant was angry after changing the 

victim’s diaper and thrust the victim aggressively into [Mother’s] 

hands.

[Mother] also testified to other instances where Appellant 

inappropriately handled the victim. For instance, Appellant 

would hold the victim up in the air like an airplane when the 

victim was only a few days old. Appellant would also have the 

victim stand on his legs and Appellant would hold the victim up 

by his arms, which prompted [Mother] and [Maternal 

Grandmother] to tell Appellant to stop as the victim was too 

young for that type of handling.

Additionally, when [Mother] wanted to take the victim to 

the hospital for the high fever, Appellant became angry and gave 

the reason that the insurance had run out and they would have 

to pay for it out of pocket. Subsequent to the victim’s 

hospitalization, Appellant stated that he may have handled the 

 

2 Mother, Appellant, and the victim lived in the finished basement of a home 

owned and lived in by Maternal Grandmother and Maternal Grandmother’s 

husband. Also living at the home were Mother’s fifteen-year-old sister and 

two-year-old brother.
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victim too roughly, and that he did not know his own strength. 

Appellant also became angry when CHOP wanted to perform 

additional tests on the victim to determine whether there were 

more injuries. Furthermore, when questioned by detectives, 

Appellant distanced himself from having cared for the victim. 

Appellant stated that he did not really take care of the victim 

and that he did not trust himself with a baby after working 12 to 

14 hours. He also explained that when [Mother] went to school, 

it was [Maternal Grandmother] who cared for the victim. 

Appellant also blamed Grand View Hospital for the victim’s 

fractured left femur.

Trial Court Opinion, 7/14/2014, at 2-6 (citations to the record omitted; 

footnotes added). 

Having heard this evidence, a jury convicted Appellant of aggravated 

assault on January 14, 2014. Appellant was immediately sentenced as 

outlined above.3 Appellant timely filed a post-sentence motion, which was 

denied, after a hearing, on March 31, 2014. Appellant timely filed a notice 

of appeal, and both Appellant and the trial court complied with Pa.R.A.P. 

1925.

Appellant presents one question on appeal: “Was the evidence 

sufficient to support the guilty verdicts?” Appellant’s Brief at 4.

 

3 During the same sentencing proceeding, Appellant was sentenced for 

burglary, at CP-09-CR-0003949-2013, to a consecutive term of two to four 

years’ incarceration. He was also sentenced for burglary and criminal 

conspiracy, at CP-09-CR-0005894-2013, to 20 years’ probation to be served 

concurrently with the previously imposed sentence. Finally, at CP-09-CR0002826-2013, Appellant was sentenced to five years’ probation to run 

concurrently with the other sentences.
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We consider a challenge to the sufficiency of the evidence pursuant to 

the following standard.

[O]ur standard of review of sufficiency claims requires that we 

evaluate the record in the light most favorable to the verdict 

winner giving the prosecution the benefit of all reasonable 

inferences to be drawn from the evidence. Evidence will be 

deemed sufficient to support the verdict when it establishes each 

material element of the crime charged and the commission 

thereof by the accused, beyond a reasonable doubt. 

Nevertheless, the Commonwealth need not establish guilt to a 

mathematical certainty. Any doubt about the defendant’s guilt is 

to be resolved by the fact finder unless the evidence is so weak 

and inconclusive that, as a matter of law, no probability of fact 

can be drawn from the combined circumstances.

Commonwealth v. Pettyjohn, 64 A.3d 1072, 1074 (Pa. Super. 2013) 

(internal quotations and citations omitted). The Commonwealth may sustain 

its burden by means of wholly circumstantial evidence, and we must 

evaluate the entire trial record and consider all evidence received against the 

defendant. Commonwealth v. Markman, 916 A.2d 586, 598 (Pa. 2007).

Appellant was convicted of violating subsection 2702(a)(1) of the 

crimes code, which provides in relevant part: “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). 

Appellant acknowledges that the victim suffered “serious bodily 

injury;” however, Appellant asserts that he did not cause those injuries. 
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Appellant’s Brief at 11. Specifically, Appellant contends the evidence 

presented by the Commonwealth showed that Mother was the victim’s 

abuser and “[n]o evidence was presented that definitively pointed to 

Appellant.” Id. at 12. Appellant argues that Mother spent 23 out of 24 

hours a day with the victim; she was his primary caregiver; and she was 

interviewed by police accompanied by a criminal defense attorney. 

Appellant suggests the evidence “pointed to [Mother]” and “the jury was 

required to guess to convict Appellant” because it “is quite clear that the fact 

finder wanted someone to be held accountable.” Id.

The trial court responded to Appellant’s argument as follows.

First, evidence at trial supported that the victim had only 

been cared for by three individuals up to that point: Appellant, 

[Mother], and [Maternal Grandmother]. Both [Mother] and 

[Maternal Grandmother] testified and denied causing the injuries 

to the victim. The jury ultimately determined their testimony to 

be honest and credible in finding Appellant guilty of the crime 

charged. Further, testimony was presented regarding 

Appellant’s anger towards the victim, an infant, for various 

issues such as the victim’s crying, picky eating habits, and 

resemblance to his biological father. Appellant exhibited this 

anger outwardly by improperly handling the newborn victim. 

Further, the victim constantly cried around the Appellant, the 

only outward sign of distress the victim could communicate at 

such a young age. In addition, when interviewed by police, 

Appellant distanced himself from care of the victim, stating that 

when [Mother] was at school, it was [Maternal Grandmother] 

who only cared for the victim. Evidence was presented to refute 

these statements. Finally, after the victim was treated for the 

injuries, Appellant stated that he may have handled the victim 

too roughly and that he did not know his own strength. This 

evidence, when viewed in the light most favorable to the 
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Commonwealth, supports the finding that Appellant was the 

cause of the victim’s injuries.

Trial Court Opinion, 7/14/2014, at 10.

In concluding that the trial court’s findings are supported by the 

record, “we must keep in mind that ‘[t]he credibility of witnesses and the 

weight to be accorded the evidence produced are matters within the 

province of the trier of fact, who is free to believe all, some or none of the 

evidence.’” Commonwealth v. Vining, 744 A.2d 310, 320 (Pa. Super. 

1999) (quoting Commonwealth v. Perez, 698 A.2d 640, 645 (Pa. Super. 

1997)). “We are cognizant of the difficulties often facing the prosecution in 

cases of child abuse. Typically in such cases one finds, as here, the only 

witnesses to the events that transpired are a young victim and the alleged 

perpetrators.” Vining, 744 A.2d at 320. 

In this case, the victim, being only seven weeks old at the time, could 

not speak for himself. Nonetheless, Mother and Maternal Grandmother both 

testified about the victim being upset around Appellant, as well as 

Appellant’s rough handling of the victim. For example, Mother testified that 

one morning, after Appellant had gotten up with the victim during the night, 

Mother noticed a small bruise on the victim’s face under his eye. N.T., 

1/13/2014, at 101. Mother also testified that one time after Appellant 

changed the victim’s diaper, the victim was crying and Appellant “thrusted 

him very aggressively into [her] hands.” Id. at 105. Maternal Grandmother 
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testified that when Appellant was alone caring for the victim, he would be 

crying inconsolably. Id. at 204. Maternal Grandmother would then go into 

the basement to get the victim. Maternal Grandmother further testified that 

Appellant handled the victim inappropriately. Id. at 206. 

Based on this testimony, a jury could reasonably infer that Appellant 

was the perpetrator of the victim’s child abuse. It is clear that the jury 

believed the testimony of Mother and Maternal Grandmother that it was 

Appellant that caused the victim’s injuries. See Pettyjohn, supra (“Any 

doubt about the defendant’s guilt is to be resolved by the fact finder...”). 

Accordingly, we hold the evidence was sufficient to sustain Appellant’s 

conviction for aggravated assault.

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/13/2015
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