Commonwealth v. Haney, P., Aplt.

[J-11-2015]
IN THE SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT

SAYLOR, C.J., EAKIN, BAER, TODD, STEVENS, JJ.

COMMONWEALTH OF PENNSYLVANIA, : No. 698 CAP
:
Appellee : Appeal from the Judgment of Sentence
: entered on 03/12/2014 in the Court of
: Common Pleas, Criminal Division of
v. : Fayette County at No.
: CP-26-CR-0002075-2011
:
PATRICK RAY HANEY, : SUBMITTED: February 25, 2015
:
Appellant :

OPINION

MR. JUSTICE STEVENS DECIDED: December 29, 2015

This is a capital direct appeal from the judgment of sentence imposed after a jury

convicted Patrick Ray Haney (“Appellant”) of, inter alia, first-degree murder. For the

following reasons, we affirm Appellant’s conviction and judgment of sentence.1

I. FACTS AND PROCEDURAL BACKGROUND

On September 13, 2011, Heather Forsythe (“Forsythe”) and Appellant presented

at Ruby Memorial Hospital in Morgantown, West Virginia with Forsythe’s four-year-old

son, Trenton Lewis St. Clair (“Trenton”). N.T. 3/10/14, jury trial, at 41, 49, 133. When

Trenton arrived, he had neither a pulse nor signs of life. N.T. 3/11/14, jury trial at 162-63.

1 This Court automatically reviews direct appeals from the imposition of death sentences
pursuant to 42 Pa.C.S. § 9711(h)(1).
Forsythe and Appellant told emergency personnel that Trenton had fallen down a flight of

stairs. Id. at 170. Dr. Hollyn Larabee (“Dr. Larabee”), a doctor at Ruby Memorial

Hospital’s Department of Emergency Management, immediately attempted to resuscitate

Trenton and was able to restart his heart four times; however, she was not able to keep

the heart beating. Id. at 163. After an hour and twelve minutes of attempting to

resuscitate him, Dr. Larabee pronounced Trenton dead. Id. at 164.

At trial, Dr. Larabee testified that it was “immediately evident that the child had

been beaten. He was covered in bruises. There was blood around his mouth.” Id. at

163. As a result of these observations, Morgantown Children and Youth Services and

Morgantown State Police were summoned to the hospital. State Police Troopers James

Pierce, Daniel Barnhart, and Charles Morrison arrived at the hospital at approximately

9:55 p.m. and interviewed Dr. Larabee, Forsythe, and Appellant. N.T. 3/10/14, jury trial,

at 133-34. Appellant initially told troopers that Trenton had fallen down the stairs at

approximately 1:00 a.m. that day and that the child “seemed fine” until approximately 2:00

or 3:00 p.m. that afternoon when he began to throw up and act “funny.” Id. at 134-35.

Appellant further told troopers that Trenton had fallen off a desk and had fallen off a

drawbridge at the park a few days prior to his death. Id. 135.

During her interview with the troopers at the hospital, Forsythe requested to speak

with the officers at the police barracks, as she was afraid that Appellant was outside the

room listening. Id. at 52, 137. At trial, the Commonwealth introduced text messages

Forsythe sent her step-niece as she was being transported to the police barracks which

read: “Not good. I’m doing myself in as well as -- as soon as I do what I got to do. I have

no reason here anymore.” Id. at 58. Forsythe continued in another text:

[J-11-2015] - 2
 I’m on my way to the police station now. Trenton was beat
they told me and that he was choked, that is the reason he is
dead, because I would never hurt my baby. I only know that I
feel in my heart that the bruises all over him -- I would never
hurt my baby. He would tell me when he would have a new
bruise or something and Pat would say he fell or he was
climbing and shit. What else can I say.

Id. at 58-59. Upon arrival at the barracks, Forsythe gave a written statement to police

explaining that she had observed Appellant physically abusing Trenton on September 10,

2011. Id. at 54.

The state police transported Appellant to the police barracks, and Trooper Pierce

testified that while transporting him, Appellant engaged in conversation with the troopers,

speaking about his childhood, where he grew up, and how he met Forsythe. Id. at 136.

However, Appellant did not mention Trenton at any point. Id. Once at the barracks,

Appellant was placed in an interview room where he sat while the troopers interviewed

Forsythe. After Forsythe gave her written statement to police, at approximately 3:30

a.m. Trooper Pierce provided Appellant with his Miranda 2 rights, which Appellant

acknowledged. Id. at 137-38. Trooper Pierce then informed Appellant that Trenton was

deceased and asked if he knew how it had happened, to which Appellant responded that

Trenton had fallen down the steps. Id. at 141.

Trooper Pierce explained to Appellant that Dr. Larabee had indicated she believed

that Trenton’s injuries were caused by abuse, not by multiple falls, and the trooper

provided Appellant with a copy of Forsythe’s written statement. Id. At trial, Trooper

Pierce testified that upon reading Forsythe’s statement, Appellant “dropped his head and

2 Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602 (1969).

[J-11-2015] - 3
he appeared to start crying. I asked [Appellant] if he ever struck Trenton and he replied

that he struck Trenton on the back of the head and slapped him across the face.” Id.

142. When asked why he would strike Trenton, Appellant replied that Trenton wouldn’t

listen and that the slaps were meant to discipline him, not to hurt him. Id. When

Trooper Pierce questioned whether Appellant felt remorse for Trenton’s death, Appellant

replied, “[o]f course I feel remorse, he was only four years of age.” Id. Appellant was

charged with first-degree murder3 and child endangerment. 4, 5

At trial, Forsythe testified that in early September of 2011, she and Trenton were

living in a home on Morgantown Road in Point Marion with Appellant and his father,

Patrick Ray Haney, Sr. Id. at 41. In the first few weeks of September, Forsythe began

noticing bruises on Trenton’s body. When Forsythe questioned Appellant about the

origin of the bruises, Appellant “would say he fell, or he was climbing, or fell, or running,

tripped, whatever.” Id. at 42-43. In the week leading up to Trenton’s death, Forsythe

noticed the bruises were increasing in number, but Appellant would again provide similar

explanations for the injuries. Id. at 43.

On September 10, 2011, Forsythe arrived home after attending a funeral, “heard a

ruckus upstairs” and observed Appellant standing above Trenton. Appellant was hitting,

slapping, and kicking Trenton, while the child cried. Id. at 44. Forsythe testified that the

3 18 Pa.C.S. § 2502(a).

4 18 Pa.C.S. § 4304(a)(1).

5 Following her statement to police, Forsythe was initially charged with homicide and
child endangerment. Forsythe later pled guilty to child endangerment, and the
Commonwealth agreed to drop the homicide charges in exchange for her testimony
against Appellant. N.T. at 59.

[J-11-2015] - 4
incident left red marks on Trenton’s body. Id. at 45. In the days after this attack,

Trenton complained of a stomach ache. Forsythe testified that during this time Appellant

would not allow her to leave the home or make any phone calls. Id. at 45-46.

On September 13, 2011, Trenton’s condition worsened and he began vomiting.

Forsythe testified she sent a text message to Appellant around 4:00 p.m. that day that

read:

My son has bruising all over him. He can’t keep even water
down or food. I can’t take him to the doctor. I am a piece of
shit mother. I can’t even say how these bruises got there and
I’m not going to take and lose him because of him [sic].

Id. at 48.6 Shortly thereafter, Appellant agreed to take Trenton to the hospital, but did not

allow Forsythe to call 911, claiming that he could get them there faster. While driving to

the hospital, Appellant repeatedly told Forsythe he was sorry and that he was going to go

6The Commonwealth further introduced into evidence the content of a text message
Forsythe sent to Appellant on September 3, 2011, ten days prior to Trenton’s death. The
message read:

I’m depressed and you yell at me and shit rather than notice --
you notice or not. You have been belittling me. You treat
me at times like I’m stupid. You make comments that you
hate kids, you can’t stand them and you don’t want any.
What if I get knocked up, Pat? Do you not see it from my
side? Trenton is my only child, he is my miracle, and you say
things like that to me. There is [sic] many times I could have
lost him. He is my miracle and I love my son with all my
heart, nothing can change that. Then you talk about shit
about sending him away from me. That would be like asshole
taking him from me. It would feel the same way to me. He
loves you and hears you say them [sic] things and cry to me
that you want him to leave and he asks me if I’m going too.
He’s only four. He has a lot to learn. You’re the only dad he
has.

Id. at 72-73.

[J-11-2015] - 5
to jail. Id. at 49. During the drive, Forsythe and Appellant decided to tell the hospital

staff that Trenton had fallen. Id. at 50. Trenton stopped breathing on the way to the

hospital, and Forsythe attempted to perform cardiopulmonary resuscitation (“CPR”) in the

car. Id. at 48.

The Commonwealth presented testimony from Dr. Matrina Schmidt (“Dr.

Schmidt”), whom both parties accepted as an expert in the field of Forensic Pathology,

regarding her autopsy of Trenton. Dr. Schmidt recited Trenton’s injuries as follows:

On the forehead, in the face, there were contusions. There
[were] contusions on the forehead, there [was] a contusion
below the right eye, there were contusions on the right jaw line
extending onto the neck, there were contusions on the left
cheek, the left face, the left jaw line, and also on the left side of
the neck. There were contusions on the chest, the abdomen,
there were contusions on the back and the buttocks and there
were contusions on the right and left arms and right and left
legs.

Id. at 83. Dr. Schmidt continued to explain that contusions are considered bruises, and

that some of the many bruises on Trenton’s body were circular in nature and consistent

with finger impressions. Id. at 84. The Commonwealth showed Dr. Schmidt pictures

taken of Trenton prior to the autopsy and asked that Dr. Schmidt explain the external

injuries portrayed in each picture. Id. at 84-89.

Dr. Schmidt testified to the findings she made during her internal examination.

Specifically, Dr. Schmidt explained that the internal examination revealed a deep scalp

hemorrhage, an exudate on the small intestines, a contusion on the small intestine, a

hematoma on the right side of the abdomen, and acute inflammation of the small

intestines, large intestines, and bladder. Id. at 91-93. Dr. Schmidt further testified that

she found “early formation of fibroblast formation, fibroblast coming in a form of

[J-11-2015] - 6
supporting membrane” in some of Trenton’s injuries, which is a sign of healing. Id. at

93-94. Dr. Schmidt further explained that “the hematoma that was found in the

abdominal cavity occurred at a different time than the peritonitis or the exudate that I saw,

observed on the intestines.” Id. at 94. Dr. Schmidt testified that Trenton would have

been experiencing lethargy, a fever, nausea, vomiting and severe abdominal pain due to

the peritonitis. Id. at 95.

Dr. Schmidt testified she determined Trenton’s death to be caused by “peritonitis

due to closed abdominal injury due to battery,” and although she could not rule out a fall

down the steps as the cause of the peritonitis, the injuries that she observed on Trenton

were not consistent with injuries that would be found on a four-year-old child who had

fallen. Id. at 96, 101. Dr. Schmidt explained, “the bruises are scattered all over in [a]

pattern and some of them are circular that look like finger impressions, and you wouldn’t

expect to see bruises, like, just from a fall.” Id. at 96-97. Accordingly, Dr. Schmidt

stated with a reasonable degree of certainty within the forensic pathology field that the

manner of death was homicide. Id. at 97.

Dr. Larabee also testified at trial as an agreed upon expert in the field of

Emergency Medicine. Dr. Larabee testified that Trenton was “essentially dead” when he

arrived at the hospital, and that “it was immediately evident that the child had been

beaten.” N.T. 3/11/14, jury trial, at 162-63. Dr. Larabee described Trenton’s external

injuries, as described by Dr. Schmidt, and added that Trenton’s stomach was noticeably

distended, meaning it was firm and pushed out, a condition which is not normal for a thin,

healthy child. Id. at 167.

[J-11-2015] - 7
 When asked to describe the significance of bruises that are circular in nature, Dr.

Larabee explained:

These injuries appear to a trained physician to obviously be
secondary to intentional trauma. They appear to be
secondary to fingerprints to the hand. It is very unusual to
see circular bruises to those parts of the body to soft tissue,
the neck, the stomach, the chest, the buttocks are not areas,
the low back, where you should see bruises on children. You
should see them on elbows and on the shins from normal
activities.

Id. at 169-170. On cross-examination, Dr. Larabee conceded that she could not give an

opinion as to whether a man or woman would have caused the circular bruises. Id. at

175.

Moreover, Dr. Larabee testified as to the abnormality of an abdominal bruise:

So most bruises whether its children or adults occur when the
skin is caught between a hard surface and a bone. So the
bruise is because you fall and hit something and so the bone
and the surface contract and the skin is caught between and
that causes the bruise. It’s unusual specifically over the
abdomen, there’s no bones to create that bruise against so
it’s much harder, it takes a great deal of force to create bruises
over a soft tissue like the abdomen, the buttocks, the neck.

Id. at 170. When asked whether the injuries that she observed on Trenton were

consistent with a child that had fallen down the stairs, Dr. Larabee responded, “It is

absolutely not consistent with a child falling down the steps.” Id. at 171. On

cross-examination, Dr. Larabee reiterated that she has never seen an injury pattern like

Trenton’s from a fall down the stairs. Id. at 177. Dr. Larabee was further questioned

whether any of Trenton’s injuries could have been consistent with a fall off a jungle gym or

a child who fell off an all-terrain vehicle (“ATV”), to which she consistently responded in

the negative. Id. at 171-72. Dr. Larabee further testified that Trenton’s bruises

[J-11-2015] - 8
appeared to be different ages, with some appearing to be not more than two to three days

old, while others appeared to be not less than six to twelve hours old. Id. at 173.

Dr. Larabee testified that peritonitis is very treatable when detected at an early

stage, and had Trenton been brought to the hospital earlier, he “likely would have

survived.” Id. Ultimately, Dr. Larabee determined that Trenton died of “intentional

injury, non-accidental trauma, child abuse.” Id. Finally, Dr. Larabee testified that “I’ve

had a lot of time to think about this. It’s without a doubt the wors[t] case I’ve ever seen

and I have had other children die of non-accidental traumas. This is the wors[t] case I’ve

ever seen.” Id. at 174.

The Commonwealth initially sought to introduce twenty photographs of Trenton’s

deceased body into evidence and allow the jury to view the photographs during

deliberations. Appellant filed a motion in limine seeking to exclude all photographs of

Trenton’s body from being viewed by the jury. The trial court granted the motion as to

Exhibit 10, which depicted Trenton’s open skull, and as to Exhibits 38 through 47, which

showed medical equipment attached to Trenton. The trial court denied the motion as to

Exhibits 1 through 9, finding that the photographs of Trenton’s body exhibiting the injuries

were “probative in establishing a pattern of repetitive abuse” and their “probative value

outweigh[ed] any inflammatory effect.” Id. at 186.

The defense made various attempts to discredit Forsythe’s testimony.

Specifically, on cross-examination, the defense questioned Forsythe’s contention that

Appellant would not allow her to leave the home between September 10 and September

13, indicating that Forsythe told police she had gone to the Family Dollar store on

September 11. N.T. 3/10/14, jury trial, at 62. Forsythe responded, that while she did

[J-11-2015] - 9
visit the Family Dollar store, she could not recall when she went. Id. The defense also

questioned Forsythe’s contention that Appellant prevented her from using her phone,

citing to the text message Forsythe sent Appellant on September 13, 2011, quoted supra.

Forsythe explained that she sent the text while she was sitting next to Appellant. When

questioned further, Forsythe clarified that while Appellant “watched when I called other

people,” she was able to send a “few” text messages from her phone. Id. at 63. The

defense further elicited testimony from Forsythe that, in August of 2011, she slapped

Trenton because he was asking too many questions about a movie. N.T. at 63-64.

The defense called only two witnesses, Appellant and Melissa Leadbeater

(“Leadbeater”). Leadbeater testified that she saw Trenton at her husband’s funeral with

Forsythe on September 10, 2011, suggesting that Trenton was not home alone with

Appellant while Forsythe attended the funeral as she had testified. N.T. 3/11/14, jury

trial, at 187-89.

Appellant testified that, on September 10, he heard a bang come from Trenton’s

bedroom, and when he went to investigate, he noticed Trenton had some small scratches

on his body. Appellant theorized that Trenton had fallen off a desk while he was trying to

get one of his cats. Id. at 192. Appellant denied laying a hand on Trenton in the days

leading up to his death, and he further testified that he did not see Trenton fall down the

stairs on September 13, as he had been in bed all day and had no contact with Trenton

until he took him to the hospital. Id. at 195. Moreover, Appellant testified he had not

seen any of the bruises on Trenton’s body until they cut his clothes off at the hospital. Id.

at 200. While Appellant testified that he did not see Forsythe hit Trenton in the days

preceding his death, he did witness her grab his shoulders and shake him. Id. at 201.

[J-11-2015] - 10
 When questioned about his statement to Trooper Pierce that he struck Trenton in

the head and slapped him across the face, Appellant denied making this statement,

claiming instead that he was trying to explain what Forsythe had accused him of doing.

Id. at 202. Appellant further testified that Trooper Pierce’s report was “mistaken” in as

much as it indicated that Appellant told the trooper he had seen Trenton fall down the

stairs. Id. at 203.

After two days of testimony, the jury found Appellant guilty of first-degree murder

and endangering the welfare of children. The trial then proceeded to the penalty phase,

where the Commonwealth offered two aggravating factors for the jury to consider,

namely, that the killing was by means of torture7 and that Trenton was under the age of

twelve.8 The Commonwealth called Trooper Pierce to testify as to the date of Trenton’s

birth, as verified by his birth certificate, to establish that Trenton was, in fact, under the

age of twelve. Trooper Pierce confirmed that Trenton’s date of birth was February 17,

2007, making Trenton four years old at the time of his death. N.T. 3/12/14, sentencing

phase, at 16-17. To support the contention of killing by means of torture, the

Commonwealth asked the jury to consider the testimony of Drs. Schmidt and Larabee,

which had been presented during the guilt phase.

Appellant testified during the penalty phase, and the defense called four additional

witnesses: Appellant’s grandmother, Appellant’s counselor at the Fayette County Prison,

Appellant’s cousin, and Appellant’s mother. The jury ultimately sentenced Appellant to

death, unanimously finding, as the two aggravating factors, that the victim was under the

7 42 Pa.C.S. § 9711(d)(8).

8 42 Pa.C.S. § 9711(d)(16).

[J-11-2015] - 11
age of twelve and the offense was committed by means of torture. The jury found no

mitigating circumstances. This timely direct appeal followed wherein Appellant raised

the following issues:

a) Whether the pretrial hearing court erred in failing to grant
[Appellant’s] Motion to Quash the charges of first[-]degree
murder and third[-]degree murder[?]

b) Whether the pretrial hearing court erred in failing to dismiss
the aggravating factor of torture during the Omnibus Pre-Trial
Motion Hearing[?]

c) Whether the evidence was legally and factually insufficient
to prove that the defendant committed the crime of criminal
homicide beyond a reasonable doubt[?]

d) Whether the trial court erred in failing to grant [Appellant’s]
Motion for Judgment of Acquittal at the conclusion of the
Commonwealth’s case, when the Commonwealth failed to
sustain its burden of proving that [Appellant] had the specific
intent to kill the deceased beyond a reasonable doubt[?]

e) Whether the trial court committed reversible error in
permitting nine (9) photographs of the body of the victim to be
viewed by the jury during deliberations over defense
counsel’s objections that the photographs were highly
prejudicial[?]

f) Whether the trial court erred in permitting the aggravating
factor of torture to be decided by the jury when there was no
evidence of torture presented by the Commonwealth[?]

II. SUFFICIENCY OF THE EVIDENCE

Appellant alleges that the evidence presented at trial was insufficient to prove

beyond a reasonable doubt that he committed the crime of criminal homicide. Moreover,

Appellant contends that the trial court erred in denying his Motion for Judgment of

Acquittal, which he made at the end of the Commonwealth’s case-in-chief, as the

[J-11-2015] - 12
Commonwealth failed to prove that Appellant had the specific intent to kill Trenton beyond

a reasonable doubt.

When reviewing the sufficiency of the evidence, this Court is tasked with

determining whether the evidence at trial, and all reasonable inferences derived

therefrom, are sufficient to establish all elements of the offense beyond a reasonable

doubt when viewed in the light most favorable to the Commonwealth as verdict winner.

Commonwealth v. Powell, 598 Pa. 224, 238, 956 A.2d 406, 415 (2008) (citing,

Commonwealth v. Bridges, 563 Pa. 1, 12, 757 A.2d 859, 864 (2000)).9 Evidence is

sufficient to sustain a conviction of first-degree murder where the Commonwealth

establishes that: (1) a human being was unlawfully killed; (2) the defendant is responsible

for the killing; and (3) the defendant acted with malice and the specific intent to kill.

Commonwealth v. Johnson, 615 Pa. 354, 369, 42 A.3d 1017, 1025 (2012) (citations

omitted).

Appellant argues that, although it was not disputed that Trenton perished as a

result of injuries caused by abuse, Appellant has consistently denied that he abused

Trenton or caused his death. Appellant emphasizes that, while Dr. Schmidt determined

Trenton died from “peritonitis due to closed abdominal injury due to battering,” she also

testified that the bruises on his body did not contribute to his death. N.T. 3/10/14, jury

trial, at 96, 101. Moreover, Appellant stresses that Dr. Schmidt could not rule out that the

injury to the abdomen was caused by a fall down the stairs, a fall off a jungle gym, or an

9 It is the practice of this Court to perform a self-imposed duty to review the sufficiency of
evidence underlying the first-degree murder convictions in all death penalty direct
appeals, even in the absence of a sufficiency challenge. See Commonwealth v.
Zettlemoyer, 500 Pa. 16, 26, 454 A.2d 937, 942 n.3 (1982) cert. denied, 461 U.S. 970,
103 S.Ct. 2444 (1983).

[J-11-2015] - 13
ATV accident. Id. at 101-02. Appellant further asserts that neither Dr. Schmidt nor Dr.

Larabee could opine as to whether Trenton’s alleged abuser was a man or woman.

Appellant also attacks the credibility of Forsythe by first highlighting the testimony

of Melissa Leadbeater, who testified that Trenton was at her husband’s funeral with

Forsythe on September 10, 2011, thereby disputing Forysthe’s claim that she had

witnessed Appellant abusing Trenton when she returned home. Appellant next claims

that, although Forsythe originally testified Appellant would not allow her to leave the home

between September 10 and September 13, she later admitted she was at the Family

Dollar Store on September 11, 2011.10 Appellant further alleges Forsythe admitted that,

the day after Trenton died, she told a Children and Youth Services caseworker she did not

observe Appellant hit Trenton. 11 Finally, Appellant contends the only evidence

presented at trial that linked him to Trenton’s abuse came from Forsythe, and her

testimony was not credible.

The Commonwealth responds by first suggesting Appellant’s main argument that

Forsythe was not credible is without merit, as “determinations of credibility are within the

sole purview of the jury as finder of fact.” Commonwealth’s Brief at 4. The

Commonwealth next dismisses Appellant’s argument that the Commonwealth failed to

establish that Appellant delivered the blows to Trenton’s torso and abdomen which were

the cause of the peritonitis. The Commonwealth compares the instant case to

10 A review of the record reveals that, while Forsythe concedes that she told police she
was at the Family Dollar Store, she could not recall the date. N.T. 3/10/14, jury trial, at
64.

11 The record reflects that Forsythe testified that she did not recall making such a
statement. Id. at 66.

[J-11-2015] - 14
Commonwealth v. Chambers, 602 Pa. 224, 980 A.2d 35 (2009) wherein the appellant

repeatedly abused the victim and her siblings. The victim died after an exceptionally

brutal episode of abuse during which appellant threw her into a radiator and then threw

her between the bed and the wall, leaving her to suffocate to death. The medical

examiner in Chambers concluded that the cause of death was due to a combination of

factors, including the child’s weakened state, blunt force trauma, and asphyxia. The

appellant argued that because the medical examiner did not testify that his final blow to

the three-year-old victim was sufficient to cause her death, the conviction could not stand.

This Court rejected the so-called “final blow” argument and upheld appellant’s conviction.

The Commonwealth contends that the evidence at trial clearly established strong

circumstantial evidence that Appellant did, in fact, deliver the fatal blows which caused

Trenton’s peritonitis. Specifically, the Commonwealth explains that Appellant admitted

to striking Trenton on the back and slapping his face, and “[t]he same finger shaped

marks found on the head and chest, parts of the body [Appellant] admitted to striking,

were found on the abdomen, torso, lower back, buttocks, indeed, the remainder of the

victim’s body.” Commonwealth’s Brief at 5.

Viewing the evidence in the light most favorable to the Commonwealth, the

evidence sufficiently establishes each element of first-degree murder beyond a

reasonable doubt. Thus we find the evidence was sufficient to support a finding of guilt

on the first-degree murder charge.

First, the Commonwealth had the burden of establishing that Trenton’s death was

a homicide, which the Commonwealth aptly established through testimony of Dr. Larabee

and Dr. Schmidt. Appellant stresses that Dr. Schmidt acknowledged that the bruises on

[J-11-2015] - 15
Trenton’s body did not contribute to his death and she could not rule out that the injury to

his abdomen was caused by a fall down the stairs, a fall off a jungle gym, or an ATV

accident. As the Commonwealth indicated, however, this Court has consistently

rejected the “final blow” argument in instances of child abuse. See, e.g. Powell, 598 Pa.

at 241-42, 956 A.2d at 417 (where this Court found the verdict of first-degree murder was

supported by the evidence of appellant’s pattern of abuse despite the lack of evidence of

a final blow which caused the child’s death). Moreover, while Dr. Schmidt conceded she

could not positively rule out the possibility that Trenton’s injuries were caused by multiple

falls, it was her opinion that Trenton’s injuries were not consistent with a four-year-old

child who had fallen. N.T. 3/10/14, jury trial, at 96, 101. Ultimately, Dr. Schmidt testified

that Trenton died of “peritonitis due to closed abdominal injury due to battery,” and

declared within a reasonable degree of medical certainty that the manner of Trenton’s

death was homicide. Id. at 96-97. Similarly, Dr. Larabee determined that Trenton’s

cause of death was “intentional injury, non-accidental trauma, child abuse.” N.T.

3/11/14, jury trial, at 173. Accordingly, the evidence supported the jury’s conclusion that

Trenton’s death was a homicide.

Second, the Commonwealth had the burden of proving beyond a reasonable

doubt that Appellant was responsible for killing Trenton, which the Commonwealth

proved through the testimony of Dr. Schmidt, Dr. Larabee, Trooper Pierce, and Forsythe.

As outlined supra, Dr. Schmidt and Dr. Larabee consistently testified that Trenton’s

injuries were consistent with battery. Appellant suggests that the Commonwealth failed

to prove that he was Trenton’s abuser, as neither Dr. Schmidt nor Larabee could

determine whether the injuries were caused by a man or a woman. Appellant ignores,

[J-11-2015] - 16
however, that our standard of review tasks us with viewing all of the evidence in the light

most favorable to the Commonwealth as verdict winner. The Commonwealth elicited

testimony from Trooper Pierce and Forsythe that sufficiently proved that Appellant

abused the child. Specifically, Trooper Pierce testified that Appellant confessed to

striking Trenton, and Forsythe testified that she witnessed Appellant physically abusing

Trenton three days prior to his death. N.T. 3/10/14, jury trial, at 44, 141-42. Appellant

contends that Forsythe’s testimony was not credible; however, the jury was free to find

this evidence to be credible. See Commonwealth v. Hornberger, 441 Pa. 57, 61, 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.”) (citation omitted). Thus, viewing all of the evidence in the light most favorable

to the Commonwealth, the jury could properly conclude that Appellant was responsible

for Trenton’s death.

Finally, the Commonwealth had the burden to prove that Appellant acted with the

requisite malice and specific intent to kill. For first-degree murder, an intentional killing is

a “[k]illing by means of poison, or lying in wait, or any other willful, deliberate and

premeditated killing.” 18 Pa.C.S. § 2502(d). The Commonwealth may prove specific

intent through purely circumstantial evidence. Johnson, 615 Pa. at 369, 42 A.3d at 1025

(citation omitted). “Specific intent to kill can be proven where the defendant knowingly

applies deadly force to the person of another.” Commonwealth v. Hawkins, 549 Pa. 352,

368-69, 701 A.2d 492, 500 (1997) (citing Commonwealth v. Meredith, 490 Pa. 303, 311,

416 A.2d 481, 485 (1980)).

[J-11-2015] - 17
 Here, Appellant’s repeated attacks on four-year-old Trenton during which he

inflicted blows to vital parts of Trenton’s body, such as his head and stomach, over a

period of at least three days, and his refusal to allow Trenton to receive timely medical

attention while the child endured lasting effects of Appellant’s abuse, proved beyond a

reasonable doubt that Appellant acted with malice and specific intent to kill. See

Johnson, 615 Pa. at 370, 42 A.3d at 1026 (finding the Commonwealth sufficiently proved

specific intent where the appellant repeatedly abused a two-year-old child for a period of

45-60 minutes, inflicting 150 bruises and injuries and causing internal injuries which lead

to the victim’s death.); Powell, 598 Pa. at 241, 956 A.2d at 416-17 (stating “[t]he extensive

physical injuries [the] appellant inflicted on the child, his cold-hearted failure to timely

seek medical assistance, and the contradictory explanations [the] appellant offered as to

how [the child] sustained his injuries . . . were sufficient to support the inference that [the]

appellant intentionally caused the child’s death.”).

Appellant further asks this Court to reverse his judgment and grant him a new trial

on the basis the trial court erred in denying Appellant’s Motion for Judgment of Acquittal at

the conclusion of the Commonwealth’s case-in-chief since the Commonwealth failed to

prove that Appellant acted with specific intent to kill Trenton. As outlined supra, we find

that the Commonwealth proved beyond a reasonable doubt that Appellant acted with the

requisite malice and specific intent to kill.

Appellant also contends that the pretrial hearing court erred in failing to quash

charges of first-degree murder and third-degree murder, as the evidence offered was

insufficient to prove that Appellant caused any of Trenton’s injuries.

As the Commonwealth indicates, however, because a jury determined that Appellant

[J-11-2015] - 18
committed first-degree murder beyond a reasonable doubt, this contention is moot.

See Commonwealth v. McCullough, 501 Pa. 423, 427, 461 A.2d 1229, 1231 (1983)

(stating “[t]his fact is clearly immaterial where at the trial the Commonwealth met its

burden by proving the underlying felony beyond a reasonable doubt.”); Commonwealth v.

Lee, 541 Pa. 260, 270, 662 A.2d 645, 650 (1995) (“[Defendant’s] adjudication of guilt

renders moot any allegation that the Commonwealth failed to establish a prima facie case

with respect to the homicide [at the preliminary hearing] . . .).

III. ADMISSION OF PHOTOGRAPHS

Appellant next posits the trial court erred in permitting nine photographs of

Trenton’s body to be viewed by the jury during deliberation over defense counsel’s

objections that the photographs were highly prejudicial. Specifically, Appellant argues

the photographs inflamed the minds and passions of the jury and were cumulative

evidence to the testimony of Drs. Schmidt and Larabee. Appellant alleges that “the jury

was unable to look past the images of the child on a medical table when the evidence was

legally and factually insufficient to prove [Appellant’s] guilt beyond a reasonable doubt.”

Appellant’s Brief at 18.

The Commonwealth responds that the photographs were properly admitted, as

they “exhibited the injuries and bruising that were testified to as the manner and cause of

death.” Commonwealth’s Brief at 7. Moreover, the Commonwealth argues that, in this

particular case, the jury needed to view the injuries inflicted on Trenton to determine

whether Appellant committed the beatings with the requisite mens rea.

The Commonwealth sought to introduce twenty photographs to the jury, and

Appellant filed a motion in limine seeking to keep the photographs from being viewed by

[J-11-2015] - 19
the jury. The trial court ultimately granted the motion with respect to one photograph

which showed Trenton’s exposed skull, as well as ten photographs, which depicted

medical devices attached to Trenton’s body. The trial court found the remaining

photographs to be inflammatory, but possessing evidentiary value sufficient to warrant

their admission.

At trial, defense counsel categorized his motion in limine as an objection to the

photographs being displayed to the jury, not an objection to their admission to the record.

N.T. 3/11/14, jury trial, at 183. Accordingly, the trial court’s Opinion in Support of Jury

Verdict did not discuss the admissibility of the photographs, but rather the trial court

analyzed whether the photographs were properly displayed to the jury. In so doing, the

trial court determined that the photographs were “necessary to show the amount of

deadly force[ ] the Appellant used on vital parts of Trenton’s body to enable the jury to

infer an intent to kill.” Trial Court Opinion, dated June 5, 2014, at 14.

While Appellant consistently maintains that he does not challenge the admissibility

of the photographs, his motion in limine and appellate brief analyze the test used to

determine the admissibility of photographs. For the sake of clarity, we will discuss both

the admissibility of the photographs and the decision to allow the jury to view the

photographs during deliberation.

“Photographs of a murder victim are not per se inadmissible.” Commonwealth v.

Cox, 546 Pa. 515, 534, 686 A.2d 1279, 1288 (1996) (citing Lee, 541 Pa. at 278, 662 A.2d

at 654). In reviewing a challenge to the trial court’s admission of photographs, we

employ the abuse of discretion standard. Commonwealth v. Pruitt, 597 Pa. 307, 327,

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951 A.2d 307, 319 (2008) (citation omitted). A trial court must engage in the following

two-step analysis when considering the admissibility of photographs of homicide victims:

First a [trial] 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. Tharp, 574 Pa. 202, 222, 830 A.2d 519, 531 (2003) (citation omitted).

Accepting the trial court’s finding that the photographs are inflammatory and after

having viewed the photographs, we find that the evidentiary value of the photographs

outweighed the likelihood of inflaming the passions of the jurors. Appellant maintains

that the photographs were cumulative evidence to the testimony of Drs. Schmidt and

Larabee and “inflamed the jury to the point where they could not possibly review the

evidence presented in the trial in a fair and impartial manner.” Appellant’s Brief at 18.

This Court consistently has held, however, that “the fact that a medical examiner can

describe the victim’s wounds to the jury does not render photographs of those wounds

irrelevant.” Commonwealth v. Karenbauer, 552 Pa. 420, 443, 715 A.2d 1086, 1097

(1998) (citation omitted); See Johnson, 615 Pa. at 384, 42 A.3d at 1034 (“Even if the

nurse and the pathologist could have testified as to these injuries, a witness’s ability to

testify as to the condition of the body does not render photographs per se inadmissible.”).

Most recently, in Commonwealth v. Woodard, __Pa. __, __A.3d __, 2015 WL

7767271 (Dec. 3, 2015), this Court found that the trial court did not err in admitting into

evidence twelve color photographs depicting a two-year-old child’s external injuries and

one black and white photograph portraying the child’s lacerated liver. The appellant in

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Woodard was convicted of first-degree murder and sentenced to death as a result of the

heinous beating he administered on the two-year child who was left in his care. The

appellant claimed that he only hit the child once, and the cause of death was an

accidental drowning after he sent the child upstairs to take a bath. In finding that the

trial court properly admitted the photographs of the child, this Court concluded that the

images were necessary to illustrate the “nature and extent of [the child’s] injuries” and the

photographs “related directly to the requisite elements of first[-] degree murder N and that

[a]ppellant possessed the specific intent to kill.” Woodard at __, __A.3d at __, 2015 WL

7767271, at *10.12

Similarly, a crucial portion of Appellant’s defense at trial was that Trenton was a

clumsy child and many of his bruises were caused by accidental falls. The photographs,

while troubling to view, were admissible to explain the nature and extent of Trenton’s

injuries. The photographs depict the severity of Appellant’s attacks on Trenton’s

four-year-old body and tend to prove that Appellant beat Trenton with the necessary

mens rea. See Karenbauer, 552 Pa. at 442, 715 A.2d at 1096 (“It is well established,

12 In his dissenting opinion, Chief Justice Saylor suggests that the instant case and
Woodard may cause “confusion in the area of the law in terms of what this Court means
by the word ‘inflammatory[,]’” as the Woodard majority credited the trial court’s finding that
the photographs discussed supra were not inflammatory, while we instantly credit the trial
court’s conclusion that the photographs of Trenton were inflammatory. Dissenting
Opinion, slip op. at 2 (Saylor, CJ). We respectfully disagree. As noted supra, the
standard of review for the admission of photographs is an abuse of discretion standard.
Accordingly, absent a finding that the trial court misapplied the law or the judgment
rendered was manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will,
a trial court’s evidentiary ruling will stand. Commonwealth v. Davido, __ Pa. __, 106
A.3d 611, 645 (2014).

[J-11-2015] - 22
and of particular importance to our analysis, that photographs of the victim’s wounds may

be relevant to show the assailant’s intent to kill.”) (citation omitted).

Having found the photographs were properly admitted, we turn now to Appellant’s

claim that the trial court erred in allowing the photographs to be viewed by the jury.

Pennsylvania Rule of Criminal Procedure 646 states, in pertinent part, “Upon retiring, the

jury may take with it such exhibits as the trial judge deems proper . . . .” Pa.R.Crim.P.

646(A). This Court has interpreted this Rule as committing the determination of what

objects may be viewed by the jury during deliberations to the sound discretion of the trial

court, and we will not reverse that determination absent an abuse of discretion.

Commonwealth v. Rucci, 543 Pa. 261, 285, 670 A.2d 1129, 1141 (1996). An abuse of

discretion “is not merely an error of judgment, but if in reaching a conclusion the law is

overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the

result of partiality, prejudice, bias or ill will, as shown by the evidence of record, discretion

is abused.” Id. (quoting Melzer v. Witsberger, 505 Pa. 462, 475, 480 A.2d 991, 997

(1984)).

Here, the trial court found the probative value of the photographs clearly

outweighed any potential for prejudice, as the photographs were necessary to

demonstrate the amount of deadly force that Appellant used on Trenton. Appellant does

not suggest that the trial court’s decision was the result of partiality, prejudice, bias, or ill

will; but rather, he argues the photographs inflamed the passions of the jury. Having

viewed the photographs, we find no abuse of discretion in the trial court’s decision to allow

the jury to view these nine photographs. Accordingly, this issue affords Appellant no

relief.

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 IV. AGGRAVATING CIRCUMSTANCE OF TORTURE

Appellant next contends the trial court erred in permitting the aggravating factor of

torture, 42 Pa.C.S. § 9711(d)(8), to be decided by the jury, as the Commonwealth did not

present any evidence that Appellant assaulted Trenton in any manner, let alone tortured

him. Appellant further argues that Drs. Schmidt and Larabee could not opine how long

the acts of abuse took place, and emphasizes that there was no evidence that a weapon

was used.

The Commonwealth suggests that in an abuse case which culminates in the

beating death of the victim, the entire course of the conduct can establish the aggravating

circumstance of torture. The Commonwealth highlights the testimony of Drs. Larabee

and Schmidt that the bruises covering a substantial portion of Trenton’s body were of

different ages, suggesting that Trenton sustained abuse over a period of time.

Moreover, the Commonwealth indicates that the abuse was severe enough to cause

internal injuries. Finally, the Commonwealth stresses that Trenton would have been

experiencing painful symptoms, including severe abdominal pain, fever, lethargy,

nausea, vomiting, and increased urine output in the days leading to his death.

The trial court found that Trenton’s injuries were “painful, sustained over a period

of time, and all were inflicted prior to death.” Trial Court Opinion, dated June 5, 2014 at

17. Moreover, the trial court reasoned if Appellant simply had wanted to kill Trenton, he

easily could have done so, but instead he chose to beat the child to death over a period of

time; therefore, the evidence amply supported the jury’s finding of torture. Id.

In order to establish the aggravating circumstance of torture, “the Commonwealth

must prove beyond a reasonable doubt that the defendant intentionally inflicted on the

[J-11-2015] - 24
victim a considerable amount of pain and suffering that was unnecessarily heinous,

atrocious, or cruel, manifesting exceptional depravity.” Karenbauer, 552 Pa. at 447, 715

A.2d at 1099 (citing Commonwealth v. Whitney, 550 Pa. 618, 637, 708 A.2d 471, 480

(1998)). “The linchpin of the torture analysis is the requirement of an intent to cause pain

and suffering in addition to the intent to kill.” Commonwealth v. Ockenhouse, 562 Pa.

481, 493, 756 A.2d 1130, 1136 (2000) (citing Commonwealth v. Edmiston, 535 Pa. 210,

236, 634 A.2d 1078, 1091 (1993)). In other words, the Commonwealth must prove the

defendant was not satisfied with the killing alone. Id. (citing Commonwealth v.

Caldwell, 516 Pa. 441, 448, 532 A.2d 813, 817 (1987)). It is not enough for the

Commonwealth to prove, however, that the victim endured pain before dying.

Commonwealth v. Brode, 523 Pa. 20, 28, 564 A.2d 1254, 1258 (1989).

This Court has enumerated a number of factors to guide our determination as to

whether a murder was committed by means of torture. These factors include, but are not

limited to: “(1) the manner in which the murder is committed, including the number and

types of wounds inflicted; (2) whether the wounds were inflicted in a vital or non-vital area

of the body; (3) whether the victim was conscious during the episode and (4) the duration

of the episode.” Ockenhouse, 562 Pa. at 493-94, 756 A.2d at 1137.

This Court previously has considered the applicability of the torture aggravator in

the context of a murder of a child by a caretaker. For example, in Powell, we determined

that the finding of torture was warranted where the child’s multiple injuries, administered

at the hands of his father, including blows to vital and non-vital parts of the child’s body,

were distinct from the traumatic brain injury that led to his death. Moreover, the evidence

in Powell established that the child’s injuries were “painful, sustained over a long period of

[J-11-2015] - 25
time, and the vast majority, if not all, were inflicted prior to death.” Powell, 598 Pa. at

257, 956 A.2d at 426. Similarly, in Karenbauer, this Court held the finding of the torture

aggravator to be appropriate, explaining that had the defendant:

intended to simply kill the victim, he could have used
his prohibitive size advantage and the knife in his
possession to do so far more expeditiously than he
actually did. Instead, he elected to cause eighteen
separate wounds N not deep enough to cause fatal
injury, but certainly deep enough to cause pain to the
victim, who remained conscious throughout her ordeal.

Karenbauer, 552 Pa. at 448, 715 A.2d at 1099.

Most recently, in Woodard, this Court concluded that there was sufficient evidence

for a jury to conclude that the appellant tortured the child. Specifically, this Court found

“the sheer number of injuries inflicted upon nearly every surface of [the child’s] body both

fatal and nonfatal, over the course of hours, would cause unimaginable pain to the young

child who had been placed in [a]ppellant’s exclusive care.” Woodard at __, __A.3d at __,

2015 WL 7767271, at *19.

The record establishes that herein the Commonwealth proved beyond a

reasonable doubt that the killing was accompanied by the circumstance of torture.

Appellant argues that neither Dr. Schmidt nor Dr. Larabee gave an opinion as to how long

the abuse occurred. Both doctors testified, however, that Trenton’s bruises appeared to

be of different ages, “with some appearing to be not more than two to three days old, and

others not less than six to twelve hours old,” indicating that Trenton had endured abuse

over a period of time. N.T. 3/11/14, jury trial, at 173. Moreover, Forsythe testified that in

the weeks leading up to Trenton’s death, she began noticing unusual bruising on his

body. Forsythe further testified that following the incident of abuse she discovered on

[J-11-2015] - 26
September 10, Trenton began complaining of a stomach ache. Dr. Schmidt confirmed

that in addition to severe abdominal pain, Trenton would have been experiencing

lethargy, a fever, nausea, and vomiting. Forsythe also stated that Appellant refused to

allow her to seek medical attention for Trenton until he became unresponsive

approximately three days after the attack. Dr. Larabee verified that if Trenton had

presented at the hospital earlier, he “likely would have survived,” as peritonitis is treatable

in its early stages. Id. Moreover if Appellant wished to simply kill Trenton, a

four-year-old child, he easily could have done so. Instead, like the victim in Powell,

Trenton sustained injuries to vital and non-vital parts of the body that were distinct from

the blow to his abdomen which caused the peritonitis, indicating that Appellant sought to

cause Trenton additional pain and suffering. See Ockenhouse, 562 Pa. at 495, 756 A.2d

at 1138 (bruises on non-vital parts of the body may indicate “an intent to cause pain and

suffering in addition to the intent to kill.”). Accordingly, we find that the Commonwealth

proved the aggravating circumstance of torture beyond a reasonable doubt.13

Finally, Appellant argues that the pretrial hearing court erred in failing to dismiss

the aggravating circumstance of torture and failing to bar the Commonwealth from

seeking the death penalty, as the Commonwealth failed to present evidence that

13 Section 9711(c)(1)(iv) of our Death Penalty Statute “provides that if the jury finds at
least one aggravating circumstance and no mitigating circumstances, then the verdict
must be death. Thus, so long as one aggravator was sustainable, if there were no
mitigators, the statute requires the death sentence must be upheld.” Powell, 598 Pa. at
257, 956 A.2d at 426 (internal quotations and citations omitted). Accordingly, if we were
to find that the Commonwealth did not establish the aggravating circumstance of torture
beyond a reasonable doubt, Appellant would not be entitled to a new penalty phase, as
the jury found two aggravating circumstances to apply and no mitigating factors, and
Appellant does not dispute that Trenton was under the age of twelve years old at the time
of the murder. See 42 Pa.C.S. § 9711(d)(16).

[J-11-2015] - 27
Appellant tortured Trenton. As the Commonwealth indicates, however, the jury found

the Commonwealth presented sufficient evidence to prove torture as an aggravator, and

therefore this claim is moot. See Commonwealth v. Walter, 600 Pa. 392, 401, 966 A.2d

560, 565 (2009) (“Any claims of inadequacy [the a]ppellant alleges with respect to

pre-trial matters have been rendered moot by the subsequent independent judicial

judgment confirming the existence of the aggravating circumstance in this case.”)

(internal quotations and citations omitted).

V. STATUTORY REVIEW

Having concluded that Appellant’s claims are without merit, we are required to

affirm the judgment of sentence 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 finding of at least one aggravating circumstance specified in subsection (d).”

42 Pa.C.S. § 9711(h)(3)(i)-(ii).

Instantly, the jury found two aggravating circumstances: the offense was

committed by means of torture (42 Pa.C.S. § 9711(d)(8)), and the victim was a child under

the age of 12 (42 Pa.C.S. § (d)(16)). At trial, Trooper Pierce testified to the date of

Trenton’s birth, as verified by his birth certificate, to establish that Trenton was, in fact,

under the age of twelve. Trooper Pierce confirmed that Trenton’s date of birth was

February 17, 2007, making Trenton four years old at the time of his death. Moreover, as

discussed at length supra, the Commonwealth proved the aggravating circumstance of

torture beyond a reasonable doubt.

After careful review of the record, we find Appellant’s death sentence was not the

product of passion, prejudice, or any other arbitrary factor.

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 VI. CONCLUSION

For the foregoing reasons, Appellant’s judgment of sentence is affirmed.14

Mr. Justice Eakin did not participate in the decision of this case.

Mr. Justice Baer and Madame Justice Todd join the opinion.

Mr. Chief Justice Saylor files a dissenting opinion.

14The 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 the opinion
and order of our Court in accordance with 42 Pa.C.S. § 9711(i).

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