Tharp, Michelle Sue:
White; age 29 at crime (DOB: 1-20-1969); murder of white female
age 7 (her daughter) in Burgettstown (Washington County) on
4-18-1998; sentenced on 11-14-2000.
Facts of the Crime:
Tharp, after being convicted of starving her
seven-year-old daughter Tausha Lee Lanham to death in April 1998,
was sentenced to death in Washington County on November 14, 2000.
The jury was supplied with haunting evidence—pictures of a gaunt
Tausha after her body was disposed of in a bush along a West
Virginia dirt path.
Judge rejects appeal 1998
Death row inmate's claims of an
unfair trial dismissed
By Linda Metz - Observer-Reporter.com
Thursday, September 1, 2011
Washington County Judge Paul
Pozonsky dismissed claims Wednesday by a death row inmate
convicted of starving her 7-year-old daughter to death in 1998
that she did not receive a fair trial.
Michelle Tharp, now 42, claims she was
wrongfully convicted of killing her daughter because of mitigating
circumstances that were not presented to the jury at trial.
Tharp's attorney, Assistant Federal Defender
Jim McHugh of the Federal Community Defender Office, filed the
petition for post conviction relief nearly two years ago, and in
April 2010, an evidentiary hearing was conducted.
During the hearing, Tharp's attorney claimed
that she had been wrongfully convicted of the crime because of
circumstances that were not presented to the jury. Those issues
include psychological evidence that Tharp is mentally unstable
because of her low IQ and traumatic upbringing, and that
then-district attorney John C. Pettit cut deals with people,
including Tharp's ex-boyfriend, Doug Bittinger, for false
testimony that led to her conviction.
The petition also contended that Tharp could
not be executed because she has a serious mental illness and that
Tharp's sentence was disproportionate punishment because no person
in the state has previously been sentenced to death for the
starvation death of a child.
Over the course of the next 11/2 years, several
more hearings were held, and attorneys were given until June 20 to
submit their final legal memoranda.
In all, nearly 4,000 pages of exhibits and
appendices were submitted and analyzed by the judge before he
rendered his decision.
In his opinion, Pozonsky wrote the "defendant's
counsel has in essence thrown in the proverbial 'kitchen sink.'
"It is clear from the lengthy PCRA petition,
the legal briefs submitted to the court, the testimony of the
evidentiary hearings and the voluminous exhibits submitted by
defendant's attorneys that their goal in representing defendant is
not simply zealous representation of their client. Instead, they
are litigating this case as part of a larger global cause: to
impede and sabotage the death penalty in Pennsylvania," he added.
Tharp and Bittinger both were charged with
first-degree murder in the starvation death of Tharp's daughter,
Tausha Lee Lanham, who weighed less than 12 pounds at the time of
The couple was charged a few days after they
falsely reported that the child had been abducted from a mall in
Steubenville, Ohio, April 18, 1998. The couple had dumped the
child's body along a road in Follansbee, W.Va.
After Tharp's trial, Bittinger was sentenced on
the lesser charge to 15 to 30 years in prison after pleading
guilty to criminal homicide, child endangerment and abuse of a
corpse. Prosecutors said Bittinger's crime was not preventing the
abuse by his girlfriend.
A death warrant was signed by Gov. Ed Rendell
in 2004, but Tharp's execution was stayed in federal court pending
further appeals, even though the U.S. Supreme Court refused to
hear her request for a new trial.
The stay of execution will remain in place
indefinitely as Tharp continues her appeal process.
Killer claims wrongful conviction
April 27, 2010
Attorneys for Michelle Tharp on Monday began
presenting evidence that they believe will prove that the woman
was wrongfully convicted and sentenced to death for starving her
7-year-old daughter to death in 1998.
Assistant federal defender Jim McHugh, along
with five other attorneys from the Federal Community Defender
Office for the Eastern District of Pennsylvania, converged on the
Washington County Courthouse early Monday pushing boxes of
documents on dollies into Judge Paul Pozonsky's courtroom.
The entourage's aim is to have Tharp's trial or
sentence overturned because of mitigating circumstances that were
not presented to the jury at trial. Those issues include
psychological evidence that the 41-year-old Tharp is mentally
unstable because of her low IQ and traumatic upbringing, and that
former District Attorney John C. Pettit cut deals with people,
including Tharp's ex-boyfriend, Doug Bittinger, for false
testimony that led to her conviction.
On the first of a two-day court proceeding,
psychologist Michael Moran testified that he performed a
comprehensive diagnostic evaluation of Tharp that found her to
have an IQ of 71, which is considered borderline mental
retardation. Despite her low IQ, Moran said he found Tharp
competent to stand trial, although she had impaired logical
thinking and analytical skills.
Moran, who was not called to testify at trial,
said Tharp suffers from several other mental disorders that would
have been considered mitigating evidence under Pennsylvania death
sentence statute. Under that statute, prosecutors cannot seek the
death penalty against someone who meets the criteria for being
"She is very seriously dysfunctional," Moran
In addition, Moran said Tharp's abusive
childhood should have had a more substantial role in deciding her
Also to testify was Washington County public
defender Glen Alterio, who defended Tharp at trial. He was
questioned by McHugh on his defense strategy at the time,
including information that could have damaged testimony presented
Tharp's attorneys contend that Bittinger
falsely testified to be given a plea deal to third-degree murder.
Tharp and Bittinger were both charged with
first-degree murder in the starvation death of Tharp's daughter,
Tausha Lee Lanham, who weighed less than 12 pounds at the time of
The couple were charged a few days after they
falsely reported that the child had been abducted from a mall in
Steubenville, Ohio, on April 18, 1998. The couple had dumped the
child's body along a road in Follansbee, W.Va.
After Tharp's trial, Bittinger was sentenced on
the lesser charge to 15 to 30 years in prison after pleading
guilty to criminal homicide, endangering the welfare of a child
and abuse of a corpse. Prosecutors said Bittinger's crime was not
preventing the abuse by his girlfriend.
At trial, Bittinger testified to Tharp being a
poor and abusive mother to her daughter, refusing to feed her or
take her to the doctor.
Alterio said he was unaware of any deal between
Pettit and Bittinger or he would have used the information at
trial. He said he would have also used additional information
pertaining to Bittinger, including a psychological evaluation and
letters that Bittinger wrote to Tharp claiming that neither of
them had done anything wrong.
Tharp's attorneys are also questioning deals
that Pettit allegedly made with Dena Chandler, Juniata Linley and
Renee Vogel Sims for testimony against Tharp.
A death warrant was signed by Gov. Ed Rendell
in 2004, but Tharp's execution was stayed in federal court pending
further appeals, even though the U.S. Supreme Court refused to
hear her request for a new trial.
The stay of execution will remain in place
indefinitely as Tharp continues her appeal process.
Mother of starved girl guilty
By Jonathan D. Silver, Post-Gazette Staff
Tuesday, November 14, 2000
From the beginning, Washington
County District Attorney John C. Pettit asserted that Michelle Sue
Tharp's starvation murder trial was just as much about her dead
daughter as it was about her.
It was Tausha Lee Lanham's story, he told
Now, that story has an ending.
Jurors yesterday found Tharp guilty of
first-degree murder in the death of the tiny 7-year-old girl,
ending a weeklong trial filled with the sordid details of Tausha's
hungry life and the bizarre moments surrounding her premature
"God rest her soul. Tausha, we love you," her
father's sister, Rhonda Lanham, tearfully told reporters outside
the Washington County courtroom moments after the verdict. "I just
want everybody to know, please, when you go home, hug and love
your children. No child deserves to be treated bad."
The jury of seven men and five women, most of
whom have children, delivered their verdict about 3:30 p.m. after
deliberating for less than three hours. They also convicted Tharp,
31, of Burgettstown, of endangering the welfare of a child and
abuse of a corpse.
On the third and final verdict on the murder
charge, Rhonda Lanham punched the air, cried out and doubled over
Police arrested Tharp on April 19, 1998, a day
after she reported Tausha missing from a mall in Steubenville,
Investigators quickly learned that Tharp and
her live-in boyfriend, Douglas Bittinger Sr., had invented a story
that the girl had gotten lost in the mall to hide the fact that
they left Tausha's corpse atop a large bush in the West Virginia
Tharp had found Tausha dead in her bed the
previous morning after what Pettit said was a long period in which
she had been starved deliberately. Tharp testified that she did
not call for help because she was panic-stricken that social
workers would take her other children away. Instead, she and
Bittinger took Tausha's body on a long, strange series of errands
in his car before leaving the body, wrapped in a sheet and stuffed
into garbage bags, in the woods.
Bittinger also faces a homicide charge in the
case, but no trial has been scheduled. He testified against Tharp.
Tharp's attorney, Glenn Alterio, said he was
disappointed by the outcome. He is now setting his sights on
today's sentencing, when jurors will choose between the death
penalty or a life sentence without parole.
Alterio, who is the county's public defender,
said his client had prepared for a possible guilty verdict and was
handling the situation well. Tharp left the courtroom red-eyed and
appeared to be on the verge of breaking down as deputies
handcuffed her. She wore the same green jacket and skirt she wore
during the first day of the trial.
Pettit said the case had been more emotional
than most for him, saying that when he thinks of Tausha, he feels
guilty after eating.
Using the same sets of facts, the attorneys
presented vastly different portraits of Tharp. Was she a
conniving, wicked mother who deliberately starved her middle
daughter to death? Or was she simply a bad parent who loved her
children but was overwhelmed by their health problems and her own
Jurors ultimately chose to believe the former.
With his client facing the possibility of the
death penalty, Alterio reiterated his argument that Tausha's death
from malnutrition occurred because of long-standing health
problems -- specifically a "failure to thrive" -- that prevented
her from growing and developing properly.
"She ate. She just didn't grow," Alterio said
in his his closing.
Tausha was born prematurely and had numerous
ailments, including genetic abnormalities and problems with her
breathing, blood, glands, nervous system and gastrointestinal
She weighed 2 pounds, 5 ounces at birth, and
died nearly eight years later at less than 12 pounds. An autopsy
revealed that she had not eaten for days before her death.
Witnesses testified that Tharp starved Tausha,
keeping food from her for a day or more at a time. They said she
confined her daughter to her room at night to prevent her from
searching for any available morsel in the kitchen, where she ate
from the garbage can and retrieved scraps from pet bowls. They
also said she treated her son and two other daughters better than
she did Tausha.
Tharp's possible motives were never discussed
in court, but Pettit said in an interview that Tharp might have
been acting out of spite against Tausha's father or anger that
that her child needed extra attention.
Other witnesses told of a mother who cared for
all her children, who neither denied Tausha food nor abused her.
Alterio pointed out that Tausha was so sickly
that the federal government opted to provide her with monthly
welfare checks of $539 for the rest of her life after merely
reviewing her medical records.
In a pitch for sympathy, Alterio asked jurors
to consider that Tharp endured a difficult childhood and a series
of abusive romances. She had no transportation and no telephone
and lacked support from the four fathers of her five children.
Alterio noted that one of Tharp's children, Benjamin, was put up
for adoption instead of being aborted.
"What does that indicate to you about her
feelings toward children?" Alterio asked.
With little help from anyone, Tharp had limited
resources with which to care for her daughter. It was no wonder,
he told jurors, that she did not show up for all her appointments
with various social service agencies.
Nevertheless, Alterio said, she tried. When
told in 1998 that she could stay on welfare a little while longer
because she was caring for an infant, she chose to receive job
training and go to work instead. And no social service agency ever
considered Tausha in such a precarious situation that they needed
to strip Tharp of her child, Alterio said.
Despite Alterio's best efforts, the last
impression left with the jury was by Pettit, who delivered an
impassioned hour-long closing argument using photographs as props.
Pettit told the jurors that Tharp
systematically defeated the attempts of agencies, such as
Washington County Children and Youth Services, to aid Tausha,
thereby engineering a "pattern of deception." She missed
appointments, refused to answer the door when they called and hid
Tausha from them, Pettit said.
Tharp defeated even the efforts of doctors to
help Tausha because she stopped taking her daughter for check-ups
after October 1993, he said.
Pettit referred to damaging testimony from
several witnesses, including a high school classmate, who recalled
Tharp telling her that Tausha belonged "six foot under in a body
bag," and Tharp's father's estranged wife, who testified that
Tharp once told her, "I hate [Tausha] so bad that I could just
And once again, he outlined the shocking series
of events that led Tharp, upon discovering her daughter's dead
body, to put Tausha in a car seat, hop into Bittinger's car, visit
her grandmother's to call off work and drop off laundry, swing by
a nearby lake, and buy garbage bags before leaving the corpse in a
Standing before the jury, case pictures and his
legal pads resting on the wooden rail separating prosecutor and
jury, Pettit called Tausha a "fighter" who overcame abuse, neglect
and a lack of love.
But, he told the jury, in the end, the plucky
little girl could not survive a mother who tried to kill her.
"Tausha was indeed a fighter, and she overcame
all of these things. But she could not overcome the act of all
food, all nourishment being withheld from her for several days,"
During his last words to the jury, Pettit
showed a photograph of the refrigerator in the Tharp home on which
hung a saying: "Home is where the heart is."
"There was no heart in that home when it came
to Tausha Lanham," Pettit said.
Trial opens to decide if mother starved girl
By Jonathan D. Silver, Post-Gazette Staff
Tuesday, November 07, 2000
It was a Saturday morning and time for
7-year-old Tausha Lee Lanham to rise and shine.
Her mother, Michelle Tharp, walked into
Tausha's bedroom in their Burgettstown apartment to get the little
girl up for breakfast. Immediately, she saw things weren't right.
Tausha's head lay half off the bed, her eyes wide open and glassy.
Foam bubbled from her mouth, and she appeared stiff.
Tharp checked Tausha's hands. Ice cold. She
crooked a leg. It stayed bent. She got a thermometer and tried to
take Tausha's temperature, but couldn't pry open the little girl's
Later, Tharp would tell the investigators who
charged her and her live-in boyfriend, Douglas Bittinger Sr., with
killing Tausha that she knew then her child was dead, Pennsylvania
State Trooper James McElhaney told a jury yesterday during the
opening of Tharp's murder trial in Washington, Pa.
At that moment, though, on April 18, 1998,
Tharp kept talking to Tausha, telling her to blink her eyes if she
could hear, to squeeze her fingers if she were aware.
Soon after, Tharp conferred with Bittinger.
"I asked Doug if he thought they would find her
if we disposed of her body," according to a statement Tharp gave
McElhaney, which was read into the record.
"He said if they found her body, it would be
Despite 15 witnesses taking the stand during
the first day of what is expected to be at least a weeklong trial,
what was easily the most riveting testimony came from Tharp's
statements to police, in which she described in horrible detail
her encounter with her cold, stiff daughter and how Bittinger
wrapped Tausha in a sheet and garbage bags and tossed her atop a
large bush in the woods of West Virginia.
For a murder case, it was highly unusual in
that there were no gunshots, no stab wounds, no tangible weapon.
Instead, police have accused Tharp of starving Tausha to death.
The little girl was emaciated, weighing less than 12 pounds, far
below normal for her age. Meanwhile, her three siblings -- two
sisters and a brother -- were all healthy and well-fed, and
investigators testified that they found a well-stocked
refrigerator and freezer.
Aside from mostly passing references to
Tausha's health and a gruesome parade of the tiny clothes she was
wearing when investigators found her corpse -- clothes that looked
more suited to a toddler than a 7-year-old -- there was little
mention of what caused Tausha's death, or who.
Tharp has been charged with homicide,
endangering the welfare of a child, concealing the death of a
child and abuse of a corpse.
Bittinger, who faces the same charges as well
as aggravated assault, is expected to travel to the courtroom from
his cell at the Washington County Jail to testify for the
Washington County District Attorney John C.
Pettit, who is personally handling the case and seeking the death
penalty, took a subdued approach during his opening statement to
the jury of seven men and five women.
He refrained from coming right out and accusing
Tharp of killing her daughter.
Instead, in his 15-minute speech, he warned
that this would not be a typical murder trial.
"We have somewhat of an unusual case here,"
said Pettit, an avuncular man with close-cropped white hair and a
beard. "Not too often does our society come to grips with homicide
Glenn Alterio, the county's public defender,
took a more aggressive stance, telling jurors that his client was
not guilty. Acknowledging that Tharp was not the best parent, he
nevertheless said she was not a murderer. Instead, Alterio
outlined his strategy by saying that Tausha had a "failure to
In an interview, Alterio defined that as "an
inability to properly process nutrients from food that you intake
so you can grow and develop." Alterio said he would have medical
experts testify that Tausha was not the victim of her mother and
Bittinger but instead fell prey to a medical condition. He also
said there was paperwork documenting Tausha's visits to doctors in
regard to her health problems.
Alterio said Tausha was born prematurely and
had a history of liver and thyroid problems. In his opening
remarks, Pettit made mention of Tausha's small size, saying that
birth records indicate she was between 1 and 2 1/2 pounds -- small
enough to be held in the palm of a hand.
"It is our contention that this is not a
homicide case," Alterio told jurors.
"Miss Tharp did not kill her."
During the trial, Tharp, 31, remained mostly
inscrutable. Dressed in a kelly green jacket and skirt, she
listened quietly, rocking gently on her swivel chair and
occasionally dabbing at her eyes with a Kleenex. Aside from
investigators and the media, hardly anyone attended the trial
before Judge Paul Pozonsky.
Pettit structured his witness list to form a
chronology of how the case unfolded before the public and police.
At first, investigators have said, Tharp and Bittinger misled
everyone by claiming that Tausha had disappeared during a family
outing to the Fort Steuben Mall in Steubenville, Ohio.
First to testify were mall workers who
encountered Tharp and Bittinger the night that a massive search
was launched. What they and investigators quickly noticed was that
neither seemed particularly frantic or upset. Soon, scores of
people were combing the area, including police from several
jurisdictions, mall workers, citizens and a volunteer
search-and-rescue group that uses dogs to track scents.
After several hours, Steubenville police took
Tharp and Bittinger to the station to get them away from the
search and into a calm environment. By then, Sheriff Fred Abdalla
of Jefferson County, Ohio, had been alerted. He watched Tharp
being interviewed on the evening news and testified that he had a
strong gut reaction.
On TV, Michelle Tharp was holding one of her
children with one hand, smoking with the other, and leaning in a
position that appeared entirely too relaxed.
"It just struck me that this is not ordinary,"
Abdalla testified. "This is not what someone does when a child is
Abdalla arrived at the police station, where he
joined detectives interviewing Tharp and Bittinger. By then, they,
too, had grown suspicious of the couple's nonchalance.
"The longer we spoke with them, we realized the
story just wasn't adding up.
They weren't upset. They didn't ask one time,
'Why are you talking to us instead of looking for my kid?'" said
Steubenville police Detective Sgt. Charles Sloane.
Police told Bittinger they had reviewed
videotapes from mall security and did not see Tausha anywhere. And
Abdalla told the man he had a hunch that Tausha was dead. At that
point, both Sloane and Abdalla testified, Bittinger told
investigators what they had feared: "The baby was dead."
Another Steubenville detective, John Lelless,
went over to Tharp.
"I said, 'Did you hear that?' She said, 'Yes.'
I then read her her Miranda rights."
According to a statement Tharp gave Lelless,
and another she gave to McElhaney of the state police, Bittinger
wanted to take Tausha to the hospital after Tharp found her, but
"She stated, 'No, no, they'll take my other
kids away from me,'" Lelless said.
"She was scared about losing her children."
Tharp also rejected Bittinger's suggestion to
contact her grandmother and his sister, saying she didn't want to
involve them, according to testimony.
So Tharp told police she called off work and
straightened her house, dressed Tausha, put her in a car seat in
Bittinger's Buick, and got in with Bittinger, daughter Ashley, who
was 3, and 6-month-old Douglas Jr.
They ended up going to Tharp's grandmother's.
They returned to their house, carrying Tausha's body in the car
seat. It was then that Tharp asked Bittinger about disposing of
the body. They got back in the car to visit Bittinger's sister,
who wasn't home.
From there it was to a friend of Bittinger's to
get some money. Then, Open Pantry, to buy $5 worth of gas. During
their meanderings into Ohio and West Virginia, Bittinger gave
Tharp $2 in change to buy a bag of white, handle-tie Glad kitchen
Investigators found Tausha's body wrapped in a
white sheet with a bird pattern, and that in turn was stuffed into
three such garbage bags. A 10-pack of the bags found in
Bittinger's car contained only seven, police said.
At one point, police said, Bittinger put
Tausha's body into the trunk, fearful that someone would spot it.
When the couple entered Brooke County, W.Va., they found a spot to
dump Tausha, investigators testified Tharp told them. Bittinger
was the one who handled the body, they said.
"He got out, opened the trunk," McElhaney said
Tharp told him. "He threw the bag with Tausha in it."
From there, the couple went to the mall.
The next day, Abdalla found the body lying atop
a large bush. He testified that he lifted Tausha's frail corpse.
"The child," he said, "looked like a victim of
7-year-old's tiny body shows
By Sharon Voas - Post-Gazette.com
Wednesday, April 22, 1998
Seven-year-old Tausha Lanham
must have wasted away for months before her body was found Sunday
in the West Virginia woods.
Dr. Basil Zitelli, a pediatrician who is part
of a special group at Children's Hospital that handles complicated
and difficult cases from the Tri-State area, said it's exceedingly
rare for a 7-year-old to weigh less than 12 pounds.
Tausha was 3 feet tall and weighed just 11.77
pounds when she died.
"I have trouble believing a normal 6-year-old
would suddenly waste away to 12 pounds unless something else was
going on," Zitelli said. "Just the (skeleton) of a normal
7-year-old would come close to weighing that.
"Without having performed an autopsy, I would
suspect that whatever caused the wasting went on for longer than a
The girl was the average height of a
33-month-old child; the average height of a girl her age is 3 feet
8 inches to 4 feet 4 inches. The average weight is 38 to 66
Tausha, who had been born premature and
underweight and experienced developmental delays, must have been
plagued with multiple medical problems, Zitelli said.
"Someone with this degree of growth retardation
and malnutrition and special needs would (require) intensive
medical care," he said.
That makes him ask: Had anyone ever taken her
to a doctor?
Any doctor who saw a child in her condition
would have investigated, he said.
Her small size at birth may have contributed to
her stunted growth, but that alone could not have left her so
Zitelli has seen families in which one child
was abused and others were not.
Tausha's mother had three other children, two
girls aged 9 and 3 and a 6-month-old boy.
"Children who have special needs are at higher
risk for neglect and abuse," he said. "Thank goodness, the vast
majority of families who have special-needs children are diligent
in their care."
But among families in which one child is
abused, the abuse almost always comes in one burst of anger, not
over a long period.
"It's very uncommon to overtly starve a child,"
Under a rock, near some water
While the search for 7-year-old Tausha Lanham
was going on, her 3-year-old half-sister told adults and relatives
where she was
By Cindi Lash and Diana Nelson Jones -
Wednesday, April 22, 1998
In the arms of her upstairs
neighbor and almost-aunt, a sobbing Ashley Tharp emerged from her
home Sunday afternoon, a miserably rainy day on which all the
important elements of her 3-year-old life had changed.
The 3-year-old was now her mother's middle
child, not the third of four. She had seen something the day
before that would make her tell adults and relatives that her
7-year-old half-sister, Tausha Lanham, wasn't coming home, that
she lay under a rock near a stream.
Her mother, Michelle Tharp, 29, was in the
Washington County Jail, as was the man who lived with them,
Douglas Bittinger, 25. And now, with her older sister and baby
brother, she was going to live with strangers, for how long no one
Her face a study in terror as news
photographers captured her wailing while state troopers and a
caseworker placed her and her siblings into a waiting car,
Ashley's departure with her siblings was the epilogue to the drama
that began nearly 48 hours earlier in the tired frame house on
Burgettstown's northern edge.
It was there, state police contend, that
Douglas Bittinger Sr. struck tiny Tausha Lanham on Friday night
after he grew tired of hearing her cry while her mother was at
It was there, police believe, that Tausha died
and lay overnight, most likely on the sagging mattress in her
bedroom off the fly-infested kitchen, her clothes spilling from a
dresser lacking a drawer and a bare light bulb dangling on
electrical cord from partially exposed ceiling lathing above.
On Saturday, Bittinger would later tell
investigators, he made a trip to the store for garbage bags, then
he and Tharp wrapped Tausha's body in a sheet and two of the
With Ashley and Tharp's other children, Tonya
McKee, 9, and Douglas Bittinger Jr., 6 months, along for the ride,
the couple drove west into West Virginia. They dumped Tausha's
body over a hill in the woods outside Follansbee, then headed to
the Fort Steuben shopping mall in nearby Steubenville, Ohio.
At 8 p.m. Saturday night, Tharp and Bittinger
would tell mall officials and police that Tausha had wandered away
or been abducted while they shopped.
Their false report, which Douglas Bittinger
would later tell state police was designed to shield him and Tharp
from suspicion, would set off a massive hunt around the mall that
stretched through the night and into the early hours of Sunday.
But their emotionless demeanor and their
inconsistent stories quickly prompted police to question if the
couple were telling the truth. As the long night dragged on,
family members who had been summoned to Steubenville to support
the couple said they, too, began to wonder.
"Pretty much as soon as I got to the mall, I
could tell something wasn't right. Doug was more upset than
Michelle, even though Tausha was her baby. Their stories just
weren't right," said Audrey Hython, who is engaged to Douglas
Bittinger's brother, Harold, with whom she lives in the apartment
above Tharp and Bittinger.
Hython said she and Harold Bittinger had spent
Saturday shopping and running errands and had just returned home
at 10:30 p.m. when the telephone rang. It was Tharp and Bittinger,
calling to tell them that Tausha had disappeared and asking them
to come to Steubenville to pick up the other three children.
Hython, Harold Bittinger and Hython's three
children immediately made the 20-minute drive, joining Tharp and
Douglas Bittinger at the mall information office that served as
command post for the search. They gathered up Tharp's three sleepy
children and prepared to drive them home but were stopped by
detectives from the Steubenville police, who wanted to question
them before they left.
So Hython, who lived in Steubenville before
moving to Burgettstown, telephoned Barbara and Ron Huggins, her
friends in nearby Brilliant, Ohio, and asked them to pick up both
Tharp's three children and her own three. The Hugginses did so,
and police then took Hython and Harold Bittinger to their station
to be interviewed about 12:30 a.m.
As detectives questioned them, Hython and
Bittinger said they realized that either Tharp or Douglas
Bittinger had falsely led police to believe the four adults and
their children had been together earlier in the day.
Hython said she grew even more uneasy when she
overheard a sleepy Ashley telling a search organizer that they
wouldn't find Tausha near the mall because Tausha was somewhere
else, under a rock near some water.
Police permitted Hython and Harold Bittinger to
leave their station at 4:30 a.m. Sunday, but asked the couple to
bring them any recent photographs of Tausha that they had at home.
So the couple returned to the shopping mall to retrieve their car,
stopped briefly in Brilliant to check on the children and then
sped back to Burgettstown to fetch the pictures.
"We got back to the mall between 6 and 7 (a.m.)
and there was nobody there. We about fell over," Hython said. "So
we went back to the Steubenville Police Department and asked what
had happened. They wouldn't tell us where Michelle or Doug were.
They wouldn't tell us anything."
Frustrated and frightened, Hython and Bittinger
drove once again to Brilliant, where Hython's and Tharp's children
were still asleep. They waited until the children woke at about
9:30 a.m., then drove back to Burgettstown with the children.
"We pulled up outside the house and the whole
place was full of state troopers and news reporters," Hython said.
"We hurried up and took the kids up to our apartment so they
wouldn't see anything and get all upset again. Then the police
questioned us all over again."
By late morning, Hython said she, Harold
Bittinger and Bittinger's mother, Billie Bittinger, had been
interviewed by police, had fed Douglas Jr. a bottle of formula and
had coaxed the other children to eat a breakfast of scrambled eggs
and sausage. The children were playing in the living room when the
telephone started ringing.
In call after call, reporters, Tharp's
relatives and members of the Bittinger clan reported that they'd
just heard a television report that Tausha had been found dead and
that Douglas Bittinger had led police to the body. State police
outside the house said they couldn't confirm those reports, so the
family waited on, keeping the television switched off to shield
Tharp's father, Larry Tharp, arrived in
mid-afternoon to ask if Hython and Bittinger had formula and
supplies to care for baby Douglas. They didn't, and police
wouldn't allow them into the downstairs apartment, so Larry Tharp
gave Hython money to buy diapers, juice and other items at a
nearby Shop 'n Save market.
When she climbed back up the stairs with her
bag of groceries at 4:30 p.m., Hython said she discovered a state
trooper in her kitchen and a woman caseworker from Washington
County Children and Youth Services using her telephone. Her call
completed, the caseworker told her she had been instructed to take
custody of Tharp's children and place them in foster care.
Hython, Harold Bittinger and Larry Tharp all
protested. Hython said she begged to be allowed to keep the
children, arguing that they already were like family and already
were upset and tired. She said the troopers told her they had no
choice but to obey the order to remove the children and would be
forced to arrest her if she tried to interfere.
So Hython said she soothed Tonya and Ashley as
best she could, but was unable to stop Ashley's tears while she
helped Ashley put on her multicolored jacket and carried her down
Her face smeared with tears and sniffles,
Ashley was carried to the caseworker's car by Larry Tharp, who
stood waiting while the caseworker settled the children, one by
one, into the white station wagon.
After the car left, two state troopers remained
on the front porch, awaiting arrival of the FBI, whose agents
would wade through the pile of bicycles and kiddie cars beside the
porch to wrap the house in yellow crime-scene tape.
Weeping, Hython said she and Bittinger climbed
the steps for the last time that day to wait for official word of
Tausha's death and the arrests of Tharp and Douglas Bittinger.
Later Sunday evening, both were charged with
child endangerment, concealing a child's death and abusing a
corpse; Douglas Bittinger also was charged with aggravated
assault. Police have said they expect to file addition charges
when West Virginia authorities issue a ruling on the cause and
manner of Tausha's death. In the meantime, the couple remains in
the Washington County Jail.
Ashley, Tonya and Douglas Jr. remain in foster
Although numerous relatives sought to obtain
custody of Tausha's siblings after her death, a juvenile court
hearing officer ruled yesterday that the children would remain in
temporary custody for at least 10 more days.
A relative of Michelle Tharp's said afterward
that she believed the children had been placed in separate foster
Yesterday, as at least two anonymous strangers
left tissue-wrapped bouquets of daisies and white carnations in
the yard outside the Bittinger house, Larry Tharp was still
wondering why the story was not clear yet, why people don't know
-- or won't say -- what happened. And in spite of his claims that
Tausha was "a lovely, healthy baby," he wondered why CYS had not
taken action if it had, indeed, received complaints about Tausha's
"(The media) is killing me and my family. I've
lost a daughter and now a granddaughter. I've lost enough. Just
let us bury her."
Supreme Court of Pennsylvania
COMMONWEALTH v. THARP
830 A.2d 519 (2003)
COMMONWEALTH of Pennsylvania,
Michelle Sue THARP, Appellant.
Submitted February 22, 2002.
Decided July 2, 2003.
Reargument Denied September 4, 2003.
Glenn Alterio, for Michelle Sue
John C. Pettit, Washington, Amy Zapp, Harrisburg, for Commonwealth
Before CAPPY, C.J., and CASTILLE, NIGRO, NEWMAN, SAYLOR, EAKIN and
This is a direct appeal from the
sentence of death imposed on appellant by the Court of Common
Pleas of Washington County.1 We affirm.
Appellant's trial was originally
listed for June 14, 1999. Approximately one week prior to the
commencement of jury selection, however, appellant and her
then-co-defendant Douglas Bittinger, Sr., filed requests to waive
their rights to a jury trial. In response, the Commonwealth
requested a jury trial pursuant to the 1998 amendment to Article
I, Section 6 of the Pennsylvania Constitution.2 The trial court
granted the Commonwealth's request. Appellant and Bittinger
appealed to this Court, which affirmed the trial court's order in
a unanimous opinion. Commonwealth v. Tharp, 562 Pa. 231, 754 A.2d
1251, 1255 (2000) (holding that amendment to Article I, Section 6
was constitutional and that there was no impediment,
constitutional or otherwise, to applying it in this case). Upon
remand, appellant's case was
[ 830 A.2d 523 ]
severed from that of Bittinger,
who testified against appellant at trial.3
On November 13, 2000, following
a jury trial, appellant was convicted of first-degree murder,4
endangering the welfare of a child,5 and abuse of a corpse,6
arising from the starvation death of her dependent seven-year-old
daughter, Tausha Lee Lanham. At the penalty phase, the jury found
one aggravating circumstance: the victim was a child under twelve
years of age.7 The jury also found two mitigating circumstances:
that appellant had no significant history of prior criminal
convictions,8 and the "catchall mitigator," i.e., any other
evidence of mitigation concerning the character and record of
appellant and the circumstances of her offense.9 The jury
determined that the aggravating circumstance outweighed the
mitigating circumstances and, accordingly, returned a sentence of
Thereafter, the trial court
formally imposed the sentence of death. In addition, the trial
court sentenced appellant to a consecutive term of one to two
years' imprisonment on the charge of abuse of a corpse. The trial
court imposed no additional sentence for endangering the welfare
of a child as that sentence merged for sentencing purposes with
first-degree murder. Appellant filed post-sentence motions, which
were denied by the trial court on June 13, 2001. This direct
appeal followed, in which appellant raises six claims for relief.
Appellant first asserts that the
evidence was insufficient to support a guilty verdict on the
charge of first-degree murder. Specifically, appellant claims that
the Commonwealth failed to prove that the starvation death of
Tausha Lee Lanham resulted from a specific intent to kill. Even in
the absence of a sufficiency challenge, this Court performs a
self-imposed duty to review the sufficiency of the evidence
underlying the first-degree murder conviction in all capital
cases. See Commonwealth v. Zettlemoyer,500 Pa. 16, 454 A.2d 937,
942 n. 3 (1982), cert. denied, 461 U.S. 970, 103 S.Ct. 2444, 77
L.Ed.2d 1327 (1983). In reviewing the sufficiency of the evidence,
the Court must determine whether the evidence admitted at trial,
and all reasonable inferences drawn from the evidence in favor of
the Commonwealth as verdict winner, supports the jury's finding of
all of the elements of the offense beyond a reasonable doubt.
Commonwealth v. Widmer, 560 Pa. 308, 744 A.2d 745, 751 (2000)
(citing Commonwealth v. Chambers,528 Pa. 558, 599 A.2d 630
Evidence is sufficient to
sustain a conviction for first-degree murder where the
Commonwealth establishes that a human being was unlawfully killed;
that the accused is responsible for the killing; and that the
accused acted with specific intent. 18 Pa.C.S. § 2502(a);
Commonwealth v. Spotz, 563 Pa. 269, 759 A.2d 1280, 1283 (2000). An
intentional killing is a "[k]illing by means of poison, or by
lying in wait, or any other kind of willful, deliberate and
premeditated killing." 18 Pa.C.S. § 2502(d). The Commonwealth can
prove this specific intent to kill from circumstantial
[ 830 A.2d 524 ]
evidence. Commonwealth v.
Brown,551 Pa. 465, 711 A.2d 444 (1998).
Evidence adduced at trial
revealed that Tausha Lee Lanham was appellant's second child, born
prematurely on August 16, 1990. Tausha was hospitalized for the
first year of her life due to her premature birth and resulting
health problems. The Pennsylvania Department of Public Health
provided services for Tausha following her release from the
hospital until March 1993. At that time, Tausha was "small" but
looked "fine." Trial Transcript ("T.T.") Nov. 7, 2000, at 319.
Tausha's aunt, Rhonda Lanham,
lived with appellant and her children during the winter months of
1994 and 1995. While there, Rhonda observed that Tausha was
routinely given a small amount of food and then sent away from the
table, while the other children stayed at the table and had second
helpings. On one occasion, Rhonda picked Tausha up from her crib
and found that her diaper was completely soaked through. There
were, however, no diapers to be found in the house. In addition,
during Tausha's "potty training" phase, food was withheld from her
and she was strapped on top of the toilet. Rhonda Lanham was so
concerned for the well-being of Tausha that she offered to take
Tausha to live with her. Appellant refused this offer.
After her relationship with
Tausha's father ended, appellant had a relationship with Robert
Skiles, which also produced a child, a daughter born on June 6,
1994. Thereafter, appellant met Douglas Bittinger, Sr., and he
moved in with appellant and her now-three children in June of
1996. The couple had a child of their own, a son born on October
Bittinger testified that during
his cohabitation with appellant, the family would eat dinner
without Tausha, who was kept trapped in a corner by various pieces
of furniture, which she could not easily move. Appellant
instructed Bittinger not to feed Tausha while she was away from
the apartment. Bittinger testified that he learned never to ignore
this instruction because if he fed Tausha the other children would
tell their mother and an argument would ensue. Occasionally,
Tausha went two or three days without anything to eat or drink.
Id. at 417. The deprivation of essential nourishment led Tausha to
take extreme measures in an effort to sustain herself. Thus,
Tausha would sneak into the pantry at night and eat cake mix or
eat out of the dog's bowl. If she caught Tausha fending for
herself, appellant would either tie Tausha to her bed or tie her
bedroom door shut so as to trap her inside. Bittinger also
observed Tausha eat bread that was thrown outside for the birds,
pick through the garbage at his sister's house for food, and drink
out of the commode. Id. at 413, 417. Bittinger hypothesized that
appellant's abuse of Tausha stemmed from appellant blaming Tausha
for having to go to work. Id. at 418.11
[ 830 A.2d 525 ]
Others also witnessed appellant
neglect and mistreat Tausha during this period. Audrey Bittinger,
Douglas Bittinger's sister-in-law, lived in the apartment above
appellant's apartment. Audrey visited Tausha and appellant's other
children regularly. In addition, Audrey testified that she
occasionally observed appellant's family through a hole under her
sink that provided a view of their apartment. She witnessed Tausha
locked in her room with a string securing the bedroom door,
trapped in a kitchen corner by various pieces of furniture, or
kept in the pantry while the rest of the family ate dinner. Audrey
also noted that when Tausha seemed ill, appellant would not take
her to the doctor. Id. at 384. The combination of these
observations led Audrey to file a report with Washington County
Children and Youth Services (CYS) concerning the abuse and neglect
of Tausha. John Hollenbach, the CYS case worker assigned to the
case, testified that he attempted to visit appellant's apartment
on at least five occasions. These attempts were unsuccessful
because appellant removed Tausha from the premises in anticipation
of the scheduled visits.
Lisa Camp, appellant's
neighborhood friend, testified that she saw Tausha eat "toy food,"
cat food, and dog food. Camp also witnessed appellant feed Tausha
with a spoon that was too large for Tausha's infant-sized mouth.
When Tausha inevitably gagged, appellant sent Tausha to her room
and stopped feeding her. Camp further testified that when
appellant's children were at Camp's home, appellant strictly
controlled what Tausha was allowed to eat. Appellant allowed
Tausha to eat but a quarter of a sandwich, claiming that half of a
sandwich would make her sick. Appellant also would not allow
Tausha to have snacks and other "goodies." Camp saw Tausha
approximately two months before her death and described her as,
"[w]eak, frail, cracked lips, sunken faced, [and] starved for
attention." Id. at 501. Just three weeks prior to Tausha's death,
Camp saw appellant and asked how Tausha was doing. Appellant
responded that, "she belonged six feet under and in a body bag."
Id. at 502. The other three children living with appellant and
Bittinger were, by all accounts, healthy and well-fed.
On the morning of April 18,
1998, appellant returned home from work. When she went to check on
her daughter, appellant found Tausha dead in her bed. At that
time, Bittinger was out of the apartment at a local convenience
store. When Bittinger returned, appellant informed him that Tausha
was dead. Bittinger confirmed Tausha's death and told appellant to
call 911. Appellant refused, saying that she was scared that CYS
would take her other children away from her. Id. at 455.
Appellant and Bittinger did not
immediately dispose of Tausha's body. Instead, they placed the
body in a car seat in the back of their car and proceeded on some
errands with the other children in the front seat. According to
Bittinger's testimony, they initially drove to appellant's
grandmother's house where they dropped off clothing for the
grandmother to wash. Id. at 422. They then drove around looking
for Bittinger's sister. When they could not find her, they
returned to their apartment because appellant "wanted to clean the
house up." Id. at 423. Bittinger, appellant and the children then
drove to a local fishing location to "see who was
[ 830 A.2d 526 ]
out there fishing." Id. They did
not stop, but instead drove to Empire, Ohio.
Appellant suggested to Bittinger
that they dispose of Tausha's body by putting it in a garbage bag
with rocks and then throwing the bag into the river. Appellant and
Bittinger bought garbage bags at a store in Empire, and then drove
via back roads to Follansbee, West Virginia. There, they placed
Tausha's body inside three garbage bags, and dropped her in the
brush by the side of the road.
Appellant and Bittinger returned
to Ohio and stopped at the Fort Steuben Mall. They shopped for a
while and then reported to mall security that Tausha was missing,
falsely alleging that she was abducted while the couple was in the
bathroom and the child was left unsupervised. After an initial
investigation by local police failed to unearth any evidence
substantiating appellant's and Bittinger's story, the two were
brought into the police station for further questioning. Both
appellant and Bittinger ultimately confessed that Tausha was dead
and that they had hidden her body. Bittinger led the police to
Follansbee to retrieve the body, which was recovered some time
after 4:00 a.m. on the morning of April 19, 1998.
An autopsy of Tausha's body
conducted by Dr. James Frost, West Virginia's Deputy Chief Medical
Examiner, revealed that, although 7 ˝ years old at the time she
died, the victim weighed only 11.77 pounds and was just 31 inches
tall. T.T. Nov. 7, 2000 at 255. Tausha's body showed numerous
signs of severe malnutrition. For example, the body had almost no
fat whatsoever in parts of the body where the accumulation of
fatty tissue is normally found. In addition, there was extreme
wear on the grinding surface of Tausha's teeth, a common
occurrence in instances of juvenile starvation. Dr. Frost also
opined that Tausha had not eaten for several days. Dr. Frost
concluded that the cause of death was malnutrition due to
starvation, and the manner of death was homicide.
In forwarding her sufficiency
claim, appellant points not to the above evidence, but to her own
testimony. She argues that due to her financial difficulties, she
could not afford medical care. In addition, appellant contends
that she loved Tausha but Tausha never appeared "normal" and even
the doctors could not diagnose what was wrong with her. Appellant
also argues that Bittinger's more damming version of the events
was effectively impeached by his own obvious self-interest in
testifying on behalf of the Commonwealth. Appellant further notes
that for each type of witness presented by the Commonwealth to
show a deliberate withholding of food or a hardness of
heart—friends and family members, expert witnesses, prison
cellmates to whom she confided—there was a competing witness or
witnesses who testified favorably for her. For example, appellant
notes that members of her family testified on her behalf that
Tausha appeared normal and was always small, that appellant never
withheld food from Tausha or mistreated her in any way, and that
appellant treated all of her children the same. Appellant also
notes that her medical experts opined that Tausha died from
malnutrition as a result of a pre-existing medical condition known
as "failure to thrive."12 After surveying the evidence as
[ 830 A.2d 527 ]
a whole, appellant submits that
"taking into account all of the evidence and testimony presented,
the jury could not reasonably and rationally be convinced beyond a
reasonable doubt that [appellant] intentionally killed her child
through a willful withholding of food."
The flaw in appellant's
sufficiency argument, of course, is that it is based largely on
her own testimony and evidence, which the jury was not obliged to
accept. See Commonwealth v. Hornberger,441 Pa. 57, 270 A.2d 195,
197 (1970) ("It is well settled that a jury or a trial court can
believe all or a part of or none of a defendant's statements,
confessions or testimony, or the testimony of any witness.").
Viewing the evidence in the light most favorable to the
Commonwealth, the evidence amply supports the jury's conclusion
that Tausha was unlawfully killed, that appellant was responsible
for the killing, and that she acted with specific intent.
Specifically, the evidence established that appellant possessed a
willful, deliberate and premeditated intent to starve her daughter
to death. Over a long period of time, appellant purposely denied
Tausha proper nourishment and directed others to do the same.
Appellant even went so far as to physically restrain Tausha so
that the young girl would be unable to feed herself. Tausha was
reduced to surreptitiously eating dog food, picking through the
trash, and drinking out of the commode.
Moreover, appellant continued
the deliberate mistreatment of her daughter despite obvious
physical indications that Tausha was dangerously malnourished and
comments from others that her daughter looked seriously ill. The
fact that appellant was conscious of what she was doing was
suggested by her own conduct and admissions. She avoided taking
Tausha to the doctor and she removed Tausha when the CYS
caseworker was scheduled to visit, thus ensuring that those who
might have noticed Tausha's condition and taken steps to help her
would be unable to do so. In addition, as noted above, appellant
told Lisa Camp that Tausha "belonged six feet under and in a body
bag," and, after her arrest, appellant stated to one of her prison
cellmates: "I'm glad the little retarded baby is dead." Id. at
487. Appellant made a similarly disturbing comment to another
cellmate, Dena Chandler, when Chandler asked appellant how she
could kill her daughter. Appellant responded: "Easily. I never
loved her. She interfered with my life." Id. at 508. The further
fact that appellant dumped Tausha's body and concocted a false
tale of kidnapping suggests consciousness of guilt.
We recognize that this case is
unusual in that death was not brought about by a single act.
Rather, the evidence showed a course of conduct over a 7-year
period of time. The perhaps-unusual facts, however, do not change
the ample evidence of appellant's hardness of heart. They do not
change the evidence of a seven-year-old's starvation death at the
deliberate hand of her own mother. Indeed, the very length of time
needed to bring about Tausha's death by starvation suggests a
unique type of coldness and deliberation, for within that time
there was ample opportunity for reflection, for reconsideration,
and for the development of a tinge of sympathy for the child. That
appellant still proceeded in her course reveals the sort of
premeditation and deliberation that separates first degree murder
from other killings or, at least, the jury could so find.
Accordingly, appellant's sufficiency challenge fails.
[ 830 A.2d 528 ]
In an argument similar to her
sufficiency claim, appellant next contends that the jury's
first-degree murder verdict was against the weight of the
evidence. Specifically, appellant contends she is entitled to a
new trial in light of "the numerous amounts of medical testimony
submitted [at trial] which substantiated that the [victim] was
diagnosed with the pre-existing medical condition of `failure to
thrive,' that the [victim] was discharged from the hospital with
this condition still existing and that throughout the child's
life, her appearance both in height and weight never was `normal'
and that it was this pre-existing medical condition that caused
her malnutrition and eventual death and not the willful actions of
[appellant]." Brief for Appellant at 15. This claim is meritless.
A verdict is not contrary to the
weight of the evidence because of a conflict in testimony or
because the reviewing court on the same facts might have arrived
at a different conclusion than the factfinder. Armbruster v.
Horowitz, 572 Pa. 1, 813 A.2d 698, 703 (2002). Rather, a new trial
is warranted only "when the jury's verdict is `so contrary to the
evidence that it shocks one's sense of justice and the award of a
new trial is imperative so that right may be given another
opportunity to prevail.'" Id. (emphasis original) (quoting
Commonwealth v. Brown,538 Pa. 410, 648 A.2d 1177, 1189 (1994)).
Where, as here, the judge who presided at trial ruled on the
weight claim below, an appellate court's role is not to consider
the underlying question of whether the verdict is against the
weight of the evidence. Id. Rather, appellate review is limited to
whether the trial court palpably abused its discretion in ruling
on the weight claim. Armbruster, supra; Brown, 648 A.2d at 1190.
Notwithstanding the evidence
presented by appellant in support of her "failure to thrive"
defense, the Commonwealth presented substantial physical,
testimonial, and scientific evidence that Tausha's death was
caused by appellant's intentional withholding of food, abuse, and
neglect. The jury obviously chose to credit the Commonwealth's
evidence and to reject the defense theory of the case. The trial
court, which heard the same competing evidence first-hand,
concluded that the jury's decision to accept the Commonwealth's
theory did not shock its sense of justice. See Trial Court slip
op. at 18. Since the issue was ultimately one of credibility, the
trial court did not abuse its discretion in denying relief.
Appellant next argues that the
trial court abused its discretion in denying her request for a
change of venue due to pretrial publicity. Appellant does not
assert that the pretrial publicity caused her actual prejudice by
preventing the impaneling of an impartial jury; rather, she
alleges that the pretrial publicity was presumptively prejudicial
because it was "extensive" and "sensationalistic." Brief for
Appellant at 17. Appellant submits that from April 20, 1998,
through January 8, 1999, sixty-four newspaper articles regarding
her case appeared in nine newspapers in and around Washington
County. Appellant alleges that at least eight of the articles were
sensational, inflammatory, and slanted towards conviction. An
additional eighteen articles, appellant contends, quoted the
Washington County District Attorney concerning his investigation,
his decision to seek the death penalty, and his thoughts of
entertaining a plea from appellant and/or Bittinger.
The determination of whether to
grant a change of venue rests within the sound discretion of the
trial court and will not be disturbed on appeal absent an
[ 830 A.2d 529 ]
abuse of that discretion.
Commonwealth v. Rucci,543 Pa. 261, 670 A.2d 1129, 1140 (1996).
This is primarily because the trial court is in the best position
to assess the atmosphere of the community and to judge the
necessity of any requested change. Commonwealth v. Karenbauer,552
Pa. 420, 715 A.2d 1086, 1092 (1998). The mere existence of
pretrial publicity does not warrant a change of venue.
Commonwealth v. Chambers,546 Pa. 370, 685 A.2d 96, 103 (1996).
Ordinarily, a defendant is not entitled to a change of venue
unless he or she can demonstrate that the pretrial publicity
resulted in actual prejudice that prevented the impaneling of an
impartial jury. Karenbauer, 715 A.2d at 1092. Prejudice will be
presumed, however, if the defendant is able to show that the
pretrial publicity: (1) was sensational, inflammatory, and slanted
toward conviction, rather than factual and objective; (2) revealed
the defendant's prior criminal record, if any, or referred to
confessions, admissions or reenactments of the crime by the
defendant; or (3) derived from official police or prosecutorial
reports. Id; Commonwealth v. Gorby,527 Pa. 98, 588 A.2d 902, 906
(1991). Even if the defendant proves the existence of one or more
of these circumstances, a change of venue is not warranted unless
the defendant also demonstrates that the pretrial publicity was so
extensive, sustained, and pervasive that the community must be
deemed to have been saturated with it, and that there was
insufficient time between the publicity and the trial for any
prejudice to have dissipated. Karenbauer, 715 A.2d at 1092;
Commonwealth v. Pursell,508 Pa. 212, 495 A.2d 183, 187 (1985).
Even if it is assumed that the
pretrial publicity here was sensational, inflammatory and slanted
towards conviction and that it saturated the community, we find no
abuse of discretion in the trial court's determination that there
was a sufficient lapse of time between the end of the
complained-of media coverage and the beginning of jury selection
for the adverse effects of the publicity to dissipate or "cool
off." The publicity appellant complains of ended on January 8,
1999. Due to the delay resulting from appellant's appeal of the
trial court's order granting the Commonwealth's request for a jury
trial, jury selection did not commence until November 1, 2000,
almost 22 months later. This lengthy delay was more than
sufficient to dissipate any prejudicial effects of the pretrial
media coverage. See Commonwealth v. Counterman,553 Pa. 370, 719
A.2d 284, 294 (1998) (one year period between majority of pretrial
publicity and trial was sufficient to dissipate effects of
pretrial publicity); Commonwealth v. McCullum,529 Pa. 117, 602
A.2d 313, 317-18 (1992) (nine month period between publication of
articles and trial was sufficient to dissipate effects of pretrial
publicity); Commonwealth v. Breakiron,524 Pa. 282, 571 A.2d 1035,
1038 (1990) (approximately one year period between time of
publication of news stories and selection of jury was adequate
cooling-off period to enable impartial jury to be impaneled).
The voir dire of prospective
jurors confirmed that any presumptive adverse effects of the
pretrial publicity had dissipated by the start of trial. Although
eighty-five of the one hundred prospective jurors indicated that
they had some prior knowledge of the case, only thirty-four stated
that they had formed a fixed opinion regarding appellant's guilt
or innocence as a result of the pretrial publicity. Thirty of
those thirty-four were excused for cause. The remaining four
jurors stated that they were more than capable of rendering a fair
and impartial verdict and the trial court was satisfied with their
assurance. Under these circumstances, the trial judge was
warranted in concluding that no change of
[ 830 A.2d 530 ]
venue was required. See
Commonwealth v. Bridges, 563 Pa. 1, 757 A.2d 859, 872 (2000) (no
change of venue required where 75 of 125 jury panel members
responded affirmatively when questioned concerning knowledge of
case and 15 of 75 had formed opinion); Commonwealth v.
Stoltzfus,462 Pa. 43, 337 A.2d 873, 878 (1975) (no change of venue
required where 31 out of 139 prospective jurors questioned had
formed fixed opinion); Commonwealth v. Hoss,445 Pa. 98, 283 A.2d
58, 64 (1971) (no change of venue required where 26 of 138 jurors
questioned had formed fixed opinion).
Next, appellant argues that the
trial court erred in permitting the Commonwealth to introduce into
evidence five color photographs of the victim taken between 1991
and 1995, as well as a videotape of Tausha depicting her at the
birthday party of an uncle approximately one year before her
death. In addition, appellant faults the trial court for admitting
into evidence three color photographs of the victim taken after
her death: (1) a full-body photograph of her naked body as it lay
on the coroner's table; (2) a full-body photograph of her clothed
while laying on a sheet; and (3) a close-up photograph of her
teeth. Appellant contends that the photographs depicting Tausha
when alive were too remote in time to be relevant. She claims that
the videotape was also irrelevant because, even if it did depict
Tausha's appearance to be "somewhat more `normal'," medical
testimony presented by the defense at trial indicated that a child
suffering from "failure to thrive" may appear more normal at
certain times than others. Brief for Appellant at 22. With respect
to the post-mortem photographs, appellant avers that their
shocking and inflammatory nature outweighed their evidentiary
value. In this regard, appellant alleges that the evidentiary
value of the photos was very limited in light of the abundant
other evidence, including the statements of appellant and
Bittinger and the testimony of various witnesses for the
prosecution, supporting the prosecution's theory that appellant
willfully withheld food from the victim.
The admission of photographs is
a matter resting with the discretion of the trial court.
Commonwealth v. Woods,454 Pa. 250, 311 A.2d 582, 583 (1973).
Regarding the photographs and videotape of the victim alive, such
evidence is admissible if it is relevant to a determination of
guilt or innocence. Commonwealth v. Strong,522 Pa. 445, 563 A.2d
479 (1989); Commonwealth v. Green,488 Pa. 611, 413 A.2d 651, 654
n. 2 (1980). Evidence is relevant if it tends to make a material
fact more or less likely. Commonwealth v. Stallworth, 566 Pa. 349,
781 A.2d 110, 117 (2001) ("Evidence is relevant if it logically
tends to establish a material fact in the case, tends to make a
fact at issue more or less probable or supports a reasonable
inference or presumption regarding a material fact."). The
central, disputed issue in this case was whether appellant
deliberately starved her child to death, as the Commonwealth
maintained, or whether the child died as a result of a
pre-existing condition, "failure to thrive," as appellant
maintained. The trial court found that these photographs were
relevant to this disputed issue. We agree. The evidence
demonstrated that, at earlier points in her life, Tausha, although
small for her age, was not dangerously malnourished. The evidence
was relevant to rebut the defense that Tausha's death was the
consequence of a "failure to thrive" condition which had afflicted
her since birth, rather than the deliberate mistreatment and
neglect of appellant. The photographs and videotape depicting
Tausha to be relatively healthy in the past belied the defense
[ 830 A.2d 531 ]
that the victim was "never
normal" and suffered from severe developmental problems from birth
which ultimately killed her. Furthermore, appellant has not
demonstrated how this relatively benign evidence prejudiced her at
trial. For this reason as well, this claim fails. See Strong, 563
A.2d at 482 ("[E]ven if we agreed with appellant's contention that
the admission [of a photograph of the victim] was erroneous,
appellant must still demonstrate that the error was prejudicial").
With respect to the post-mortem
photographs of the victim, the law regarding the admission of such
evidence is well-settled:
Photographs of a murder victim
are not per se inadmissible.... The admission of such photographs
is a matter within the discretion of the trial judge. The test for
determining the admissibility of such evidence requires that the
court employ a two-step analysis. First a court must determine
whether the photograph is inflammatory. If not, it may be admitted
if it has relevance and can assist the jury's understanding of the
facts. If the photograph is inflammatory, the trial court must
decide whether or not the photographs are of such essential
evidentiary value that their need clearly outweighs the likelihood
of inflaming the minds and passions of the jurors.
Commonwealth v. Chester, 526 Pa.
578, 587 A.2d 1367, 1373-74 (1991) (citations omitted), cert.
denied, 502 U.S. 959, 112 S.Ct. 422, 116 L.Ed.2d 442 (1991). In
addition, this Court has observed that:
A criminal homicide trial is, by
its very nature, unpleasant, and the photographic images of the
injuries inflicted are merely consonant with the brutality of the
subject of inquiry. To permit the disturbing nature of the images
of the victim to rule the question of admissibility would result
in exclusion of all photographs of the homicide victim, and would
defeat one of the essential functions of a criminal trial, inquiry
into the intent of the actor. There is no need to so overextend an
attempt to sanitize the evidence of the condition of the body as
to deprive the Commonwealth of opportunities of proof in support
of the onerous burden of proof beyond a reasonable doubt.
Commonwealth v. McCutchen, 499
Pa. 597, 454 A.2d 547, 549 (1982).
Here, the trial court found the
photographs to be "inherently inflammatory," but nevertheless
determined that their essential evidentiary value was such that
their need outweighed the likelihood of unnecessarily inflaming
the jury. We find no abuse of discretion in this determination.
Although unquestionably unpleasant, the photographs depicting the
victim's emaciated body and ground-down teeth were relevant to the
jury's determination of the central issue of whether appellant
starved Tausha to death and the contested issue of whether
appellant acted with a specific intent to kill. The photographs
tended to show that Tausha was obviously suffering from an extreme
degree of malnutrition prior to her death. They were thus
probative of whether appellant knew her daughter was dangerously
malnourished, but nonetheless willfully continued to deny her food
and failed even to seek or accept medical or social services
assistance. Although testimonial evidence was available to the
prosecution as to these points, the obviousness of Tausha's
condition, which was probative of appellant's intent, was best and
most accurately depicted in the post-mortem photographs. See
McCutchen, 454 A.2d at 550 (availability of alternate evidence
does not obviate admissibility of photographs; in assessing intent
of actor in case of criminal homicide,
[ 830 A.2d 532 ]
be it to inflict serious bodily
injury or to kill, fact finder who deals in such intangible
inquiry must be aided to every extent possible). Since the
essential evidentiary value of the post-mortem photographs
outweighed their disturbing nature, no error lies on this point.
In her penultimate claim for
relief, appellant asserts that the trial court erred in failing to
declare a mistrial following an incident in which four members of
the jury overheard a defense witness comment on the case during a
recess of the trial. On the fourth day of the trial, November 9,
2000, defense witness Charlene Megyesy testified that she had been
an inmate at the Washington County Correctional Facility at the
same time as appellant and that she and appellant had become
friends. Megyesy further testified, among other things, that
appellant told her that she loved Tausha, that she cared for the
victim just like she cared for her other children, and that she
did not kill Tausha. Megyesy also testified that appellant did not
confide in any of the other inmates at the prison besides herself,
and that she would not have confided in Renee Vogel or Juanita
Donnelly, two women who were also imprisoned with appellant at the
Washington County Correctional Facility and who had testified
earlier in the trial on behalf of the Commonwealth that appellant
had made incriminating statements to them. Following Megyesy's
testimony, the trial court recessed and four female jurors went to
the restroom. While inside the stalls in the restroom, the jurors
overheard Megyesy enter the restroom and make statements regarding
the case. The jurors' recollections of what Megyesy said varied.
Juror number 700 recalled Megyesy saying, "`She's guilty. They
just used me as a scapegoat.'" T.T., Nov. 9-10, 2000, at 626.
Juror 763 could not recall Megyesy's comments exactly but did
remember her stating that, "she was a scapegoat" or words to that
effect. Id. at 629. Juror 625 heard Megyesy say, "`They used me as
a scapegoat,' and that's all." Id. at 631. Juror number 713
recalled the witness saying, "`I feel so guilty. They just used me
as a scapegoat.'" Id. at 633. The jurors immediately left the
restroom and notified the trial judge.
Thereafter, the trial judge
questioned each of the four jurors individually in his chambers.
The trial court asked the jurors whether they understood that
Megyesy's comments did not constitute evidence in the case,
whether they would be able to set aside what they heard, and
whether they could render a fair and impartial verdict based
solely on the evidence adduced at trial. Each of the jurors
answered these questions in the affirmative. The prosecutor and
defense counsel were present when these jurors were questioned and
both were afforded the opportunity to examine each juror. At the
conclusion of the questioning, appellant moved for a mistrial. The
trial court denied the motion.
A defendant has the right to
have his or her case heard by a fair, impartial, and unbiased jury
and ex parte contact between jurors and witnesses is viewed with
disfavor. Commonwealth v. Brown, 567 Pa. 272, 786 A.2d 961, 972
(2001). There is, however, no per se rule in this Commonwealth
requiring a mistrial anytime there is improper or inadvertent
contact between a juror and a witness. See Commonwealth v.
Mosley,535 Pa. 549, 637 A.2d 246, 249 (1993) (declining to adopt
per se rule which would require disqualification of juror anytime
there is ex parte contact between that juror and witness). Whether
such contact warrants a mistrial is a matter addressed primarily
to the discretion of the trial court. Brown, 786 A.2d at 972
(citation omitted). A trial court need only grant a mistrial where
[ 830 A.2d 533 ]
alleged prejudicial event may
reasonably be said to have deprived the moving party of a fair and
impartial trial. Commonwealth v. Fletcher, 561 Pa. 266, 750 A.2d
261, 282 (2000) (citation omitted).
Here, the witness's somewhat
opaque comments were neither elicited by the jurors nor directed
at them. The comments also did not relate to factual matters but,
apparently, reflected Megyesy's anger following the Commonwealth's
cross-examination of her. Furthermore, immediately upon hearing
Megyesy's statements, the jurors exited the restroom and informed
the trial court, thus evidencing that they took their civic duty
and their oaths seriously. No further contact ensued. Each juror
involved specifically told the trial court that she understood
that she was not to consider Megyesy's statements as evidence,
that she could set aside what she had heard, and that she could
render a fair, impartial, and unbiased verdict based solely upon
the evidence presented at trial. Upon hearing the jurors'
responses to its questions and observing their demeanors, the
trial court found their assurances credible. Under these
circumstances, we cannot conclude that the trial court abused its
discretion in denying appellant's motion for a mistrial.13
Accordingly, this claim fails.
Appellant's final argument is
that the trial judge erred in failing to recuse himself sua sponte
and, as a result, she is entitled to a new trial. Specifically,
appellant complains that, prior to formally sentencing appellant,
the trial judge played an audio recording of the song "The Little
Girl," performed by country and western singer John Michael
Montgomery.14 After the song was played, the trial court compared
the "sad little life" of the fictitious
[ 830 A.2d 534 ]
girl portrayed in the song to
the life of Tausha. In addition, the trial court noted that,
unlike the girl in the song, Tausha did not get a new chance at
life with new parents. Appellant did not move for recusal at
sentencing, or at any earlier point during the proceedings before
the trial court. Appellant now alleges, however, that, "if the
[trial] court was so emotionally effected [sic] and impassioned by
the facts of this case as to take the time to locate this song and
orchestrate its playing prior to [formal] sentencing, the court
should have foreseen that its impartiality could be reasonably
questioned and should have recused itself" on its own motion.
Brief for Appellant at 26. No relief is due.
As a general rule, a motion for
recusal must initially be directed to and decided by the jurist
whose impartiality is being challenged. Commonwealth v.
Abu-Jamal,553 Pa. 485, 720 A.2d 79, 89 (1998). Accord Commonwealth
v. White,557 Pa. 408, 734 A.2d 374, 384 (1999). As this Court
explained in Abu-Jamal:
In considering a recusal
request, the jurist must first make a conscientious determination
of his or her ability to assess the case in an impartial manner,
free of personal bias or interest in the outcome. The jurist must
then consider whether his or her continued involvement in the case
creates an appearance of impropriety and/or would tend to
undermine public confidence in the judiciary. This is a personal
and unreviewable decision that only the jurist can make.
553 Pa. at 507, 720 A.2d at 89.
See also Commonwealth v. Edmiston,535 Pa. 210, 634 A.2d 1078, 1088
(1993) ("Once a trial is complete with entry of a verdict or
judgment, a party is deemed to have waived his right to have a
judge disqualified unless he can meet the standard regarding
after-acquired evidence, i.e. the evidence could not have been
brought to the attention of the trial court in the exercise of due
diligence and the existence of the evidence would have compelled a
different result in the case"). However, because this is a capital
direct appeal, see Commonwealth v. Freeman,827 A.2d 385, 2003 WL
21255941 (Pa. May 30, 2003), and because the trial court addressed
appellant's recusal claim in its opinion, we will address the
"It is the burden of the party
requesting recusal to produce evidence establishing bias,
prejudice or unfairness which raises a substantial doubt as to the
jurist's ability to preside impartially." Abu-Jamal, 720 A.2d at
89 (citations omitted). Appellant fails to demonstrate that
recusal was warranted in this case. Appellant does not identify a
single statement, action, or ruling by the trial court during voir
dire, the guilt phase, or penalty phase of her trial that reveals
bias or partiality against her. Instead, her theory is that we
should assume that the song evidences a pre-existing bias that
must have infected the trial. The trial court's playing of a song
at formal sentencing was certainly unorthodox and such conduct is
discouraged by this Court. The playing of a popular culture song
diminishes the solemnity to be accorded the sentencing procedure
particularly where, as here, the ultimate sanction of death has
been fixed by the jury and is to be formally imposed. But, this
act does not alone demonstrate that the trial court harbored a
fixed bias against appellant at the trial. The trial court played
the song only after the jury had found appellant guilty of
first-degree murder and sentenced her to death, a sentence the
trial court was statutorily required to impose. 42 Pa.C.S. §
9711(g). Further, it is evident from the lyrics of "The Little
Girl" and the trial court's comments after the song was played,
that the playing of the song was intended as an
[ 830 A.2d 535 ]
expression of sympathy for the
victim, rather than an expression of hostility towards appellant.
Although unusual and perhaps ill-advised, the trial judge's
actions at sentencing do not warrant a retroactive finding that
recusal at trial was required, especially in the absence of any
evidence of record suggesting actual bias against appellant that
may have affected the fairness of the trial.
Finally, this Court is required
to conduct a statutory review of the death sentence. Pursuant to
42 Pa.C.S. § 9711(h)(3), this Court must affirm the sentence of
death unless we determine that:
(i) the sentence of death was
the product of passion, prejudice, or any other arbitrary factor;
or (ii) the evidence fails to support the findings of at least one
aggravating circumstance specified in subsection (d).
Id. After careful review of the
record below, we conclude that the sentence imposed was not a
product of passion, prejudice or any other arbitrary factor.
Second, the evidence produced at trial was sufficient to establish
the aggravating circumstance found by the jury: that the victim
was a child under twelve years of age. The jury also found two
mitigating circumstances: that appellant had no significant
history of prior criminal convictions and the "catchall mitigator"
of any other evidence of mitigation concerning the character and
record of appellant and the circumstances of her offense. However,
the jury found that the aggravating factor outweighed the two
mitigating factors. Thus, it was statutorily required to impose a
sentence of death. 42 Pa.C.S. § 9711(c)(1)(iv).
Accordingly, we affirm the
verdict and sentence of death imposed upon appellant by the Court
of Common Pleas of Washington County.15
1. 42 Pa.C.S. § 9711(h)(1).
2. The amendment provides: "in
criminal cases the Commonwealth shall have the same right to trial
by jury as does the accused." Pa. Const. Art. I, Sec. 6.
3. The record does not reveal
the ultimate disposition of the charges against Bittinger.
4. 18 Pa.C.S. § 2502(a).
5. 18 Pa.C.S. § 4304.
6. 18 Pa.C.S. § 5510.
7. 42 Pa.C.S. § 9711(d)(16).
8. 42 Pa.C.S. § 9711(e)(1).
9. 42 Pa.C.S. § 9711(e)(8).
10. 42 Pa.C.S. § 9711(c)(1)(iv).
11. Due to Tausha's health
issues and the family's economic status, Tausha received welfare
benefits in the amount of $393 per month, from the time of her
birth through December 6, 1992. Tausha also received approximately
$539.40 per month in Supplemental Security Income ("SSI") from
December 7, 1992 until her death. Case Worker Darlene Maleski
testified that individuals who are eligible to receive either cash
assistance or SSI benefits are also entitled to full medical
coverage for themselves and their children—including
hospitalization, dental care and prescription drug coverage.
Maleski further testified that as part of welfare reform efforts
in 1997, she was required to meet with appellant to discuss
mandated reform efforts and determine how appellant could comply.
During this meeting on February 27, 1998, appellant was presented
with three options. Since she had a child just over four months
old, she could chose an exemption status until her child reached
the age of 1; or, she could be placed into a work-related program
that accelerated the job placement process; or, she could find a
job herself. Appellant chose the second option and, at the end of
March 1998, she was hired as a retail clerk at a department store.
12. Failure to thrive is a
serious medical condition in which a child's height, weight, and
motor development fall significantly short of the average growth
rates of normal children. About 10% of failure to thrive cases
have an organic cause; the rest result from disturbed parent-child
relationships manifested in severe physical and emotional neglect
of the child. In the Interest of Patricia S.,326 Pa.Super. 434,
474 A.2d 318, 319 (1984) (citing Interdisciplinary Glossary On
Child Abuse And Neglect, LEGAL, MEDICAL, SOCIAL WORK TERMS, DHEW
Pub. No. (OHDS) 78-30137,reprinted in CHILD ABUSE AND NEGLECT
LITIGATION, DHHS Pub. No. (OHDS) 80-30268 (March 1981)).
13. In her brief, appellant
asserts that in closing argument, the Commonwealth improperly made
reference to the jury contact when it commented on Megyesy's
change of attitude when she left the witness stand. Appellant
argues that this change in attitude was a result of her comment
that was overheard by the jurors in the restroom. It is clear from
the record that the Commonwealth's reference to Megyesy's change
of attitude concerned her demeanor before the incident in the
restroom, focusing on her response in court to seeing pictures of
the victim. The Commonwealth did not make any reference to the
comment in the restroom.
14. T0he lyrics to "The Little
Girl" are as follows:
Her parents never took the young
Never spoke of His name,
Never read her His word.
Two non-believers walking lost in this world,
Took their baby with them,
What a sad little girl.
Her daddy drank all day and mommy did
Never wanted to play,
Or give kisses and hugs.
She'd watch the TV and sit there on the
While her mom fell asleep,
And her daddy went out.
And the drinking and the fighting,
just got worse every night.
Behind their couch she'd be hiding,
Oh what a sad little life.
And like it always does, the bad just got
With every slap and every curse.
Until her daddy in a drunk rage one night,
Used a gun on her mom and then took his
And some people from the city,
took the girl far away.
To a new mom and a new dad,
kisses and hugs everyday.
Her first day of Sunday school,
the teacher walked in,
And a small little girl,
Stared at a picture of him.
She said I know that man, up there on that
I don't know His name,
But I know he got off.
He was there in my old house,
and held me close to his side,
As I hid there behind the couch,
The night that my parents died.
15. The Prothonotary of this
Court is directed to transmit to the Governor's office a full and
complete record of the trial, sentencing hearing, imposition of
sentence and opinion and order by the Supreme Court in accordance
with 42 Pa.C.S.A. § 9711(i).