photo gallery

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 murder

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 her death.

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

Observer-Reporter.com

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 mentally retarded.

"She is very seriously dysfunctional," Moran said.

In addition, Moran said Tharp's abusive childhood should have had a more substantial role in deciding her fate.

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 by Bittinger.

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 her death.

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 of murder

By Jonathan D. Silver, Post-Gazette Staff Writer

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 jurors.

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 death.

"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 in tears.

Police arrested Tharp on April 19, 1998, a day after she reported Tausha missing from a mall in Steubenville, Ohio.

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 woods.

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 dysfunctional relationships?

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 tract.

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 kill her."

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 remote area.

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," Pettit said.

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 to death

By Jonathan D. Silver, Post-Gazette Staff Writer

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 mouth.

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 murder."

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 prosecution.

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 by starvation."

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 thrive."

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 abducted."

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 Tharp refused.

"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 garbage bags.

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 the Holocaust."

7-year-old's tiny body shows gradual wasting

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 year."

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 pounds.

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 underweight.

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," he said.

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 - Post-Gazette.com

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 knew.

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 work.

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 plastic sacks.

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 the children.

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 the stairs.

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 care.

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 homes.

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 welfare.

"(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, Appellee,
v.
Michelle Sue THARP, Appellant.

Submitted February 22, 2002.
Decided July 2, 2003.
Reargument Denied September 4, 2003.

Glenn Alterio, for Michelle Sue Tharp.
John C. Pettit, Washington, Amy Zapp, Harrisburg, for Commonwealth of Pennsylvania,
Before CAPPY, C.J., and CASTILLE, NIGRO, NEWMAN, SAYLOR, EAKIN and LAMB, JJ.

OPINION

Justice CASTILLE.

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 death.10

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 (1991)).

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 17, 1997.

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 ½ 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 contentions

[ 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 the

[ 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 issue.

"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

Footnotes

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 girl to
church,
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
drugs,
Never wanted to play,
Or give kisses and hugs.
She'd watch the TV and sit there on the
couch,
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
worse,
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
life.
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
cross,
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).