Com. v. Cabrera, S.

J-S30014-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

SAMUEL N. CABRERA

Appellant No. 511 EDA 2015

Appeal from the Judgment of Sentence January 16, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0009793-2013

BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and JENKINS, J.

MEMORANDUM BY GANTMAN, P.J.: FILED JUNE 15, 2016

Appellant, Samuel N. Cabrera, appeals from the judgment of sentence

entered in the Philadelphia County Court of Common Pleas, following his

convictions of third degree murder, involuntary manslaughter, and

endangering the welfare of children (“EWOC”).1 We affirm.

In its opinion, the trial court fully and correctly sets forth the relevant

facts and procedural history of this case.2 Therefore, we have no reason to

restate them.

Appellant raises the following issues for our review:
____________________________________________

1
18 Pa.C.S.A. §§ 2502(c), 2504(a), and 4304(a)(1), respectively.
2
Appellant filed his supplemental concise statement of errors complained of
on appeal pursuant to Pa.R.A.P. 1925(b) on June 4, 2015, not June 4, 2014,
as stated in the trial court opinion.
J-S30014-16

WAS NOT THE EVIDENCE INSUFFICIENT TO SUPPORT THE
VERDICT OF THIRD DEGREE MURDER AS A MATTER OF
LAW WHERE APPELLANT DID NOT ACT WITH MALICE
WHEN HE STRUCK HIS CHILD?

DID NOT THE TRIAL COURT ERR AS A MATTER OF LAW
AND ABUSE ITS DISCRETION IN ALLOWING HEARSAY
TESTIMONY IN THE FORM OF A VIDEO RECORDING OF A
CHILD WITNESS PURSUANT TO THE TENDER YEARS
HEARSAY ACT, 42 [PA.C.S.A]. § 5985.1, WHERE THE
HEARSAY DID NOT CONTAIN CORE INDICIA OF
RELIABILITY—SPONTANEITY AND CONTEMPORANEITY[?]

(Appellant’s Brief at 3).

A challenge to the sufficiency of the evidence implicates the following

legal principles:

The standard we apply in reviewing the sufficiency of the
evidence is whether viewing all the evidence admitted at
trial in the light most favorable to the verdict winner, there
is sufficient evidence to enable the fact-finder to find every
element of the crime beyond a reasonable doubt. In
applying [the above] test, we may not weigh the evidence
and substitute our judgment for the fact-finder. In
addition, we note that the facts and circumstances
established by the Commonwealth need not preclude every
possibility of innocence. Any doubts regarding a
defendant’s guilt may be resolved by the fact-finder unless
the evidence is so weak and inconclusive that as a matter
of law no probability of fact may be drawn from the
combined circumstances. The Commonwealth may sustain
its burden of proving every element of the crime beyond a
reasonable doubt by means of wholly circumstantial
evidence. Moreover, in applying the above test, the entire
record must be evaluated and all evidence actually
received must be considered. Finally, the [finder] of fact
while passing upon the credibility of witnesses and the
weight of the evidence produced, is free to believe all, part
or none of the evidence.

Commonwealth v. Jones, 874 A.2d 108, 120-21 (Pa.Super. 2005)

-2-
J-S30014-16

(quoting Commonwealth v. Bullick, 830 A.2d 998, 1000 (Pa.Super.

2003)).

The Crimes Code defines murder as follows:

§ 2502. Murder

(a) Murder of the first degree.—A criminal homicide
constitutes murder of the first degree when it is committed
by an intentional killing.

(b) Murder of the second degree.—A criminal
homicide constitutes murder of the second degree when it
is committed while defendant was engaged as a principal
or an accomplice in the perpetration of a felony.

(c) Murder of the third degree.—All other kinds of
murder shall be murder of the third degree. Murder of the
third degree is a felony of the first degree.

* * *

18 Pa.C.S.A. § 2502(a)-(c). “Murder in the third degree is an unlawful

killing with malice but without the specific intent to kill.” Commonwealth

v. Dunphy, 20 A.3d 1215, 1219 (Pa.Super. 2011). Malice is defined as:

[A] wickedness of disposition, hardness of heart, cruelty,
recklessness of consequences, and a mind regardless of
social duty, although a particular person may not be
intended to be injured…. [M]alice may be found where the
defendant consciously disregarded an unjustified and
extremely high risk that his actions might cause serious
bodily injury.

Commonwealth v. DiStefano, 782 A.2d 574, 582 (Pa.Super. 2001),

appeal denied, 569 Pa. 716, 806 A.2d 858 (2002). “Malice may be inferred

by considering the totality of the circumstances.” Dunphy, supra.

After a thorough review of the record, the briefs of the parties, the

-3-
J-S30014-16

applicable law, and the well-reasoned opinion of the Honorable Sandy L.V.

Byrd, we conclude Appellant’s issues on appeal merit no relief. The trial

court opinion comprehensively discusses and properly disposes of the

questions presented. (See Trial Court Opinion, filed September 30, 2015, at

11-16, 24-28) (finding: (1) Commonwealth’s expert witness, Dr. Aaron

Rosen, described victim’s injuries to include multiple rib fractures, fractured

collarbone, and significant lacerations to victim’s liver; Dr. Rosen opined to

reasonable degree of medical certainty that these injuries caused victim’s

death and were caused by severe blunt force trauma; Dr. Rosen also noted

that victim’s autopsy revealed new bone formation on victim’s rib and

collarbone, which indicated victim had sustained prior injuries; Dr. Rosen

further stated that elasticity of child’s bones makes them very difficult to

fracture and that victim’s injuries required significant amount of force;

Commonwealth also demonstrated Appellant’s guilt through introduction of

Appellant’s three different statements of what happened to victim;

Appellant’s different versions of incident indicated Appellant’s attempt to

hide fact that he was alone with victim when victim sustained fatal injuries;

all of Commonwealth’s evidence established Appellant grossly disregarded

that his actions might create substantial and unjustifiable risk of death or

serious bodily injury to victim; further, Appellant failed to obtain immediate

medical care for victim in violation of his parental caretaking duties; thus,

Commonwealth proved beyond reasonable doubt that Appellant acted with

-4-
J-S30014-16

malice when he beat victim to death, and trial court properly convicted

Appellant of all offenses charged; (2) video of child witness’ statement,

taken six months after victim’s death, was relevant to Appellant’s case;

additionally, time, content and circumstances of statement provided

sufficient indicia of reliability; video revealed that only person present during

interview with child witness was interviewer from Philadelphia Children’s

Alliance; in fact, child advocate, detective, and social worker merely

observed interview from another room and were not involved in questioning

of child; additionally, statement given by child witness was spontaneous and

mirrored child witness’ in-court testimony; further, child witness

demonstrated competent mental state, used terminology of child of similar

age, and lacked motive to fabricate; thus, Commonwealth established

truthfulness and reliability of statement, and trial court properly admitted

statement pursuant to Tender Years Hearsay Act). We accept the court’s

sound reasoning.

To the extent the separate sentence for Appellant’s EWOC conviction

implicates the legality of the sentence, which we raise sua sponte,3 the court

indicated on the record that this conviction stemmed from Appellant’s failure

to seek medical attention for victim. In contrast, Appellant’s third degree

____________________________________________

3
See Commonwealth v. Randal, 837 A.2d 1211 (Pa.Super. 2003) (en
banc) (stating appellate court can raise and review legality of sentence sua
sponte).

-5-
J-S30014-16

murder and involuntary manslaughter convictions stemmed from Appellant’s

beating of the victim. Because Appellant’s involuntary manslaughter and

EWOC convictions pertained to separate criminal acts committed by

Appellant, they do not merge for sentencing purposes. See

Commonwealth v. Robinson, 931 A.2d 15 (Pa.Super. 2007) (en banc)

(holding concepts of merger do not apply when defendant commits multiple

distinct criminal acts). Thus, the court properly imposed a separate,

concurrent sentence for Appellant’s EWOC conviction. Accordingly, we affirm

the judgment of sentence on the basis of the trial court opinion.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/15/2016

-6-
 Circulated 05/17/2016 03:03 PM

IN THE COURT OF COMMON PLEAS PHILADELPHIA COUNTY
CRIMINAL TRIAL DIVISION

COMMONWEAL TH OF PENNSYLVANIA CP-51-CR-0009793-2013

V, CP-51-CR-0009793-201~;;~~~- v. Cabrera. SamuelN. SUPERIOR COURT

SAMUEL N. CABRERA 1111111111111111 m FILED
7351092121 511 EDA 2015
SEP 3 0 2015
Crimina r .f.\opeals Uni.
First Judic1a1'rnstrict 01 ;::~
OPINION

Byrd, J. September30,2015

Samuel N. Cabrera filed a direct appeal from this court's January 16, 2015 judgment of sentence.

In accordance with the requirements of PA. R.APP. PROC. 1925, this court submits the following

Opinion.

I. PROCEDURAL HISTORY

Defendant Samuel N. Cabrera was arrested on April 11, 2013 and charged with a range of

offenses.1 After waiving a jury trial, defendant was tried by this court, commencing on November 12,

2014. On November 13, 2014 defendant was found guilty of murder of the third degree, involuntary

manslaughter and endangering the welfare of a child. On January 16, 2015 defendant was sentenced

to an aggregate twenty (20) - forty ( 40) years of state incarceration.' Appellate counsel filed a Notice

of Appeal on defendant's behalf on February 13, 2015. This court issued an order on February 17,

2015 directing defendant to file a Statement of Matters Complained of on Appeal in accordance with

1
Defendant was charged with murderofthe third degree (18 PA. CONS. STAT.ANN.§ 2502(c)); involuntary manslaughter
§ 2504 (a); and endangering the welfare of a child § 4304 (a)(]).
2
Defendant received a sentence of twenty (20) - forty (40) years of confinement for the charge of murder of the third

.ce-;:-}z;_;
y /
PA. RAPP. PROC. 1925 (b). On March 10, 2015, defendant filed said statement along with a Motion

for an Extension of Time to File a Supplemental Statement of Errors Complained of on Appeal after

receipt of the completed notes of testimony. On May 14, 2015 an extension to file was granted until

June 4, 2014, on which date said statement was timely filed.

II. FACTUALBACKGROUND

During the trial evidence was presented which when viewed in the light most favorable to the

Commonwealth as the verdict winner established the following.

In 2013 defendant Samuel Cabrera resided at 618 N. 63rd Street in Philadelphia,

Pennsylvania with his fiancee, Jennifer Wycoff and her children, seven-year-old f'l.W.V. J.
six-year-old} ;;"!:.rour-year-o ld'/" 13 . W , l , sixteen-month-old G .. \N.'

and three-month-old s . . c. ; the decedent. Also living in the home were

Ms. Wycoff smother, Gabriella and Ms. Wycoff s grandmother, "Toto." N T 11/7/2014 at 15; NT

11/12/2014 at 140. s.c . was born £M. J {.iM.IA.. liver, one of which

was five centimeters long and the full thickness of the liver damaging multiple blood vessels. Id. at

47-48. The laceration's size led Dr. Rosen to opine that a severe amount ofblunttrauma was used to

cause that amount of damage to the liver. Id. at 48. Dr Rosen explained that the trauma to the liver

caused a hemorrhage and blood entered the abdominal cavity. Id at 49. Further observation of the

internal injuries led Dr. Rosen to conclude that exsanguination from heavy bleeding out of the

circulatory system and vessels into the abdomen resulted in significant blood loss and led to death.

Id at 50. Dr. Rosen testified that abdominal compartment syndrome (ACS) caused' S. c.. fto

go into shock and stop breathing. Id Dr. Rosen also described the efforts CHOP took in an attempt

to save'.! s. c. 1
S , life, which included an operation, resuscitation and an incision in an attempt

to open the abdomen and relieve the bleeding and trauma. Id. at 51-53. Thus, external examination

revealed some bruising from medical intervention and possibly CPR. Id at 53-54.8

Dr. Rosen explained that the elasticity of children's bones makes them very difficult to

fracture and doing so would require a significant amount of force. Id. at 57. He also added that such

force often occurs during a vehicular accident and is rarely the result ofimproper CPR. Id. Dr. Rosen

testified that defendant walking up the steps with' s.c. in his arms, tripping and dropping the

baby would not explain the injuries he observed. Id at 5 8. On the contrary, Dr. Rosen confirmed that

defendant punching s .c . at least twice would be consistent with the injuries suffered. Id
9

8
Dr. Rosen however noted that CPR only accounted for some of the injuries on S. C. ·~ mid-chest region and did
not explain the other significant injuries to rest of the body. N.T 11/12/13 at oo.
9Dr. Rosen further explained that if fwas on a soft surface it would have likely taken more than two blows to
s.c.
9
Commonwealth v. Samuel Cabrera
Dr. Rosen opined that! s. C. .Avould have stopped breathing approximately twenty minutes

after the injuries were inflicted. Id. at 60. Finally, phenobarbital, a common medication used to treat

NAS and help babies get over addictions to drugs ingested during pregnancy to prevent withdrawal

symptoms, was found in s . c . '.5 system at autopsy. N. T ll /12/13 at 99.

III. STATEMENT OF MATTERS COMPLAINED OF ON APPEAL

In accordance with PA. R.APP. PROC. 1925 (b) defendant raised the following issues in his

Statement of Matters Complained of on Appeal."

a. The evidence presented by the Commonwealth was insufficient to prove
beyond a reasonable doubt that appellant was guilty of third degree murder in
that there was insufficient evidence of appellant's mens rea to prove malice.

b. The Motions Court erred as a matter of law and violated appellant's rights
under the federal and state constitutions when it denied his motion to
suppress the statement given to P.O. Meissler from the SVU where appellant
was not warned of his rights pursuant to Miranda prior to interrogation under
circumstances under which any reasonable person would not have felt free to
leave and thus was the equivalent of custody for Miranda purposes.

c. The Motions Court erred as a matter of law and violated appellant's rights
under the federal and state constitutions when it denied his motion to
suppress his formal written statement and video statement (C-4; C-4A) as
they were taken subsequent to a non-mirandized verbal statement and thus
tainted.

d. The Motions Court erred and abused its discretion by denying appellant's
motion to preclude the prison tape from being played during the trial as it was
not relevant or probative as it was, for example, neither an admission by a
party opponent as to intent, or impeachment evidence, where appellant's
defense was that the act which led to the death of his son was not done with
malice and thus did not rise to third degree murder.

e. The Motions Court erred and abused its discretion by grartinrr thP.
f'ommcmwealth' s motion to allow the video of child witness Ii Pf. W. \J •
1Jo
be shown at trial and admitted into evidence, as it ranee 10
meet me reuability criteria of the Tender Years Hearsay Act.

cause the injury, as opposed to if he was on a hard surface, like the ground. N. T 11/12/13 at 59. He reasoned that
sometimes children fall or are dropped and do not suffer injuries remotely similar toO s .. c.' ~ '. Id.
10
The statement below was taken verbatim from defendant's filed Statement of Errors
10
Commonwealth v. Samuel Cabrera
 IV. DISCUSSION

Defendant now challenges the sufficiency of the evidence to support the verdict of murder in the

third degree. Further, he also challenges rulings of the motions court, including the denial of his

motion to suppress. Although this court did not preside over the motions hearing in this case, a

thorough review of the record and notes of testimony, reveals that defendant's claims lack merit.

Our Supreme Court "has long recognized that judges of coordinate jurisdiction sitting in the

same case should not overrule each others' decisions." Commonwealthv. Starr, 541 Pa. 564, 573-74

(1995). "This rule, known as the "coordinate jurisdiction rule," is a rule of sound jurisprudence based

on a policy of fostering the finality of pre-trial applications in an effort to maintain judicial economy

and efficiency." Id The "coordinate jurisdiction rule falls squarely within the ambit of a generalized

expression of the "law of the case" doctrine." Id. at 574. "This doctrine refers to a family of rules

which embody the concept that a court involved in the later phases of a litigated matter should not

reopen questions decided by another judge of that same court or by a higher court in the earlier

phases of the matter." Id. "Among the related but distinct rules which make up the law of the case

doctrine are that ... upon transfer of a matter between trial judges of coordinate jurisdiction, the

transferee trial court may not alter the resolution of a legal question previously decided by the

transferor trial court." Id See Commonwealth v. Washington,428 Pa. 131, 133 n. 2, 236 A.2d 772,

773 n. 2 (1968) (citation omitted) (a trial judge cannot reverse on the same record at trial the decision

made after the pretrial suppression hearing that defendant's statement need not be suppressed);

Commonwealth v. Rolan, 2008 PA Super 291, 964 A.2d 398, 404 (2008) (in permitting testimony,

trial court was following the pretrial ruling of a judge of the same court of common pleas).

A. Sufficiency of the evidence

"In considering a challenge to the sufficiency of the evidence, the Court must decide whether

11
Commonwealth v. Samuel Cabrera
the evidence at trial, viewed in the light most favorable to the Commonwealth, together with all

reasonable inferences there from, could enable the fact-finder to find every element of the crimes

charged beyond a reasonable doubt." Commonwealthv. Walsh, 36 A.3d613, 618 (Pa. Super. 2012)

(citations omitted). "In assessing the sufficiency of evidence, a reviewing court may not weigh the

evidence and substitute its own judgment for that of the fact-finder, who is free to believe all, part, or

none of the evidence." Commonwealth v. Ramtahal, 33 A.3d 602, 607 (Pa 2011). "The facts and

circumstances established by the Commonweal th need not preclude every possibility of innocence."

Commonwealth v. DiStefano, 782 A.2d 574, 582 (Pa. Super. 2001), appeal denied, 806 A.2d 858

(Pa. 2002). "Any doubts regarding a defendant's guilt may be resolved by the fact-finder unless the

evidence is so weak and inconclusive that as a matter of law no probability of fact may be drawn

from the combined circumstances." Commonwealth v. Cassidy, 668 A.2d 1143, 1144 (Pa. Super.

1995), appeal denied, 681 A.2d 176 (Pa. 1996) (citation omitted). ''The Commonwealthmay sustain

its burden of proving every element of the crime beyond a reasonable doubt by means of wholly

circumstantial evidence." Id. "Moreover, in applying the above test, the entire record must be

evaluated and all evidence actually received must be considered." Commonwealth v. Muniz, 5 A. 3d

345, 348 (Pa. Super.2010), appeal denied, 19 A.3d 1050 (Pa. 2011) (citation omitted). Finally, "[i]f

the record contains support for the verdict, it may not be disturbed." Commonwealth v. Adams, 882

A.2d 496, 499 (Pa. Super. 2005) (citation omitted).

Here, defendant challenges his conviction for third-degree murder. Specifically, defendant

claims that "[t]he evidence presented by the Commonwealth was insufficient to prove beyond a

reasonable doubt that [he] was guilty of third degree murderin that there was insufficient evidence of

appellant's mens rea to prove malice." Statement of Errors ~ a This claim is without merit.

12
Commonwealth v. Samuel Cabrera
 In this case, the Commonwealth proved beyond a reasonable doubt that defendant brutally

beat his infant son to death. To sustain a conviction for murder of the third degree, "the

Commonweal th need only prove that the defendant killed another person with malice aforethought."

Commonwealth v. Fisher, 622 Pa. 366, 375 (2013), cert. denied sub nom., Bestv. Pennsylvania, 134

S. Ct. 2314 (2014) (internal citations omitted). Our Supreme Court has held that "malice

comprehends not only a particular ill-will, but ... [also a] wickedness of disposition, hardness of

heart, recklessness of consequences, and a mind regardless of social duty, although a particular

person may not be intended to be injured." Fisher, 622 Pa. at 375. Thus, "[m]alice exists where the

principal acts in gross deviation from the standard of reasonable care, failing to perceive that such

actions might create a substantial and unjustifiable risk of death or serious bodily injury."

Commonwealth v. Kellam, 719 A.2d 792, 797 (Pa. Super. 1998). Likewise, "[m]alice may also exist

where the omission or failure to perform a legal duty was willful and will probably result in the death

of the victim." Id. Moreover, "third-degree murder is a killing done with legal malice but without the

specific intent to kill required in first-degree murder." Commonwealth v. Kellam, 719 A.2d 792, 797

(Pa. Super. 1998). In short, the Court has noted that:

[T]hird degree murder is not a homicide that the Commonwealth must prove was
committed with malice and without a specific intent to kill. Instead, it is a homicide
that the Commonwealth must prove was committed withrnalice, but one with respect
to which the Commonwealth need not prove, nor even address, the presence or
absence of a specific intent to kill. Indeed, to convict a defendant for third degree
murder, the jury need not consider whether the defendant had a specific intent to kill,
nor make any finding with respect thereto.

Fisher, 622 Pa. at 375 (citations omitted).

The evidence as discussed below shows that defendant provided three different versions of

events in an attempt to mask the truth, that he was alone with S. C • 'when the child sustained

several fatal injuries of a brutal nature as detailed in the autopsy report. Indeed, Dr. Aaron Rosen

13
Commonwealth v, Samuel Cabrera
testified to a reasonable degree of medical certainty that the baby's death was caused by multiple

blunt impact injuries. N. T 11/12/2014 at 3 8-40. Dr. Rosen described several severe internal injuries

to' S. c. 1 .' including five rib fractures, and a fractured collar bone. Id. at 44-46. Dr. Rosen also

described several significant lacerations on S. c. 15 liver, one of which was five centimeters

long, the full thickness of the liver, caused by a severe amount ofblunt trauma. Id Additionally, Dr.

Rosen explained how one of the rib fractures and the fractured collar bone had new bone formation

on top of old fractures which showed that there had been prior injury. Dr. Rosen further stated that

the elasticity of children's bones makes them very difficult to fracture, and the injuries suffered by

S. C., required a significant amount of force that is often the result of a vehicular accident. Id

at 57.

Further, evidence to support the verdict of murder in the third-degree must include the three

different versions of events defendant provided on three separate occasions to explain! s. c . \ .s
injuries. To account for the severe internal injuries that! S .c. /suffered, including five rib

fractures and a fractured collar bone, defendant first stated to homicide detectives that he accidentally

dropped the child twice while carrying him on the steps. When Detective Sierra responded that a

medical examination would be able to disprove that account, defendant created a different account of

what happened. Defendant proceeded to tell detectives that while trying to remove the family dog

from the bed s . C. was lying on he accidentally punched the child twice and neglected to

seek medical attention after observing him in distress. Defendant stated to detectives, "I swung my

left hand (indicating using the inside part of a closed fist) striking my baby on his left arm ... When I

hit him with the first punch I just thought I knocked the wind out of him by accident." Allegedly,

after punching! S. c . \' defendant did not immediately realize that the child was having trouble

breathing, so he did not seek medical attention. However, once defendant realized that. s.c.
14
Commonwealth v. Samuel Cabrera
was out of breath "like when someone hits us in our stomach[,]" although he "didn't think anything

was severely wrong with him ... [he] put pressure on S. C. 's I' chest and stomach" until he

began to cry, but still did not "call [an] ambulance or doctor knowing that [his] son stopped

breathing because of [him]." Clearly that conduct and subsequent failure to obtain immediate

medical care for his son meets the Kellam standard of culpability. Especially when in reality, young

A · W • V • testified that the dog was downstairs on the porch when she followed defendant upstairs.

She further testified that defendant pushed her out of the bedroom but that she heard defendant tell

S. c. 0 to be quite, followed by the child choking and gasping for air. Finally, while

incarcerated and awaiting trial defendant concocted yet a third version of events in which he blamed

the child's injuries on an armed intruder.

Assuming arguendo that it was not defendant's conscious purpose to bring about the death of

S• c. f the convincing evidence shows that defendant acted in gross deviation from the

standard of reasonable care and failed to perceive that his actions might create a substantial and

unjustifiable risk of death or serious bodily injury tq S .c. . Moreover, by his own admission,
defendant's conduct constituted malice in that he failed to perform his parental duties to obtain

medical care immediately after noticing that s . c.. :,7was having trouble breathing. "I started

CPR. I panic[ked] because I didn't call the ambulance or doctor knowing that my son stopped

breathing because of me." Thus, malice existed not only where defendant willfully struck his infant

son multiple times, but also where his willful omission and failure to perform his parental duty

resulted in the death of his son.

Thus, it is indisputable that the Commonwealth has proven that the defendant killed/ S .c..

with malice aforethought. First, as stated above, defendant was alone with 5 . C.
when the child sustained a brutal beating resulting in death. Additionally, not only did defendant's

15
Commonwealth v. Samuel Cabrera
actions reflect malice aforethought, but his failure to act also manifested ill-will and a wickedness of

disposition, hardness of heart, recklessness of consequences, and a mind regardless of social duty

evidencing malice.

B. Motions to Suppress

"In reviewing a ruling on a suppression motion, the standard of review is whether the factual

findings and legal conclusions drawn therefrom are supported by the evidence." Commonwealth v.

Kuzmanko, 709 A.2d 392, 396 (Pa. 1998). "[W]here the record supports the findings of the

suppression court, [the reviewing court] is bound by those facts and may reverse only if the legal

conclusions drawn therefrom are in error." Id. Thus the Superior Court considers "whether the

suppression court properly applied the law to the facts of the case." Commonwealth v. Ruey, 5 86 Pa.

230, 240 (2006). "In reviewing the denial of a [defendant's] motion to suppress evidence, [the

Superior Court] consider[s] only the evidence of the prosecution's witnesses and so much of the

evidence for the defense as, fairly read in the context of the record as a whole, remains

uncontradicted." In re JV, 762 A.2d 376, 379 (Pa. Super. 2000) (citations omitted). "Once a motion

to suppress evidence has been filed, it is the Commonwealth's burden to prove, by a preponderance

of the evidence, that the challenged evidence was not obtained in violation of the defendant's rights."

Commonwealth v. Wallace, 615 Pa. 395, 407 (2012)(citing PA. R.CRIM. PROC. 581(H)).

To begin, defendant claims that he was deprived of his federal and state constitutional rights

"where [he] was not warned of his rights pursuant to Miranda prior to interrogation under

circumstances under which any reasonable person would not have felt free to leave and thus was the

equivalent of custody for Miranda purposes." Statement of Errors ~ b. For the reasons stated below,

this claim is meritless.

16
Commonwealth v. Samuel Cabrera
 "[I]t is well-settled that the police are only required to advise a person of his Miranda rights

if that person is subjected to custodial interrogation." Commonwealth v. Busch, 713 A.2d 97, 100

(Pa Super. 1998). Thus, to "trigger the safeguards of Miranda, there must be both custody and

interrogation." Commonwealth v. Cruz, 71 A.3d 998, 1003 (Pa. Super.2013). "As a general rule, the

prosecution may not use statements, whether inculpatory or exculpatory, stemming from a custodial

interrogation of a defendant unless it demonstrates that he was apprised of his right against self-

incrimination and his right to counsel." Commonwealth v. Umstead, 916 A.2d 1146, 1149 (Pa.

Super. 2007). "[P]olice detentions in Pennsylvania become custodial when, under the totality of the

circumstances, the conditions and/or duration of the detention beoome so coercive as to constitute the

functional equivalent of arrest." Commonwealth v. Turner, 772 A.2d 970, 973 (Pa. Super. 2001)

(citations omitted). An arrest is defined as "an act that indicates an intention to take a person into

custody or that subjects the person to the will and control of the person making the arrest."

Commonwealth v. Gwynn, 555 Pa. 86, 723 A.2d 143, 148 (1998).

The Superior Court has noted that"[ a]n interrogation for the purposes of Miranda refers not

only to express questioning, but also to any words or actions on the part of police (other than

normally attendant to arrest and custody) that the police should know are reasonably likely to elicit

an incriminating response from the suspect." Commonwealth v. Turner, 772 A.2d 970, 974 (Pa.

Super. 2001) "Interrogation is defined as "police conduct calculated to, expected to, or likely to

evoke admission." Commonwealth v. Snyder, 60 A.3d 165, 170(Pa. Super. 2013), appeal denied,

620 Pa. 731 (2013). In effect, "[t]he test for determining whether a suspect is being subjected to

custodial interrogation so as to necessitate Miranda warnings is whether he is physically deprived of

his freedom in any significant way or is placed in a situation in which he reasonably believes that his

freedom of action or movement is restricted by such interrogation." Commonwealth v. Chacko, 500

17
Commonwealth v. Samuel Cabrera
Pa. 571, 577 (1983) (citations omitted). Simply put, "[t]he test focuses on whether the individual

being interrogated reasonably believes his freedom of action is being restricted." Id The Superior

Court has observed that:

The factors that the court considers to determine whether there has
been a custodial interrogation include: the basis for the detention; its
length; its location; whether the suspect was transported against his or
her will, how far and why; whether restraints were used; whether the
law enforcement officer showed, threatened or used force; and the
investigative methods employed to confirm or dispel suspicions.

Commonwealth v. Turner, 772 A.2d 970, 973 (Pa. Super. 2001).

In this case, Officer Meissler responded to a report of suspected abuse regarding a baby in the

Intensive Care Unit at CHOP and went to the hospital in order to conduct an informational interview

and gather the facts surrounding the incident. Officer Meissler arrived at the hospital and questioned

defendant, the father .of the victim, as part of a routine investigation of child abuse allegations.

Defendant remained on the same floor where/ s~c. 11was being treated and was questioned
/

about the incident in a non-threatening manner in a hospital family room. Defendant gave a

statement detailing his account of events on the day of the incident. However, he never mentioned

that he inflicted any injury to S, C • ,- At the motions hearing, defendant argued that the

foregoing amounted to a custodial interrogation which triggered the necessity of Miranda warnings

because a reasonable person under those circumstances would not have felt free to leave. NT

11/7/13 at 93-94. Defendant conceded that he was not in a police station or handcuffed. However, he

argues that Officer Meissler did not explicitly inform him that he was free to leave and the alleged

detention amounted to the functional equivalent of an arrest which physically deprived him of his

freedom while he was subject to interrogation. Id. To the contrary, the prosecutor argued that

defendant was not subject to custodial interrogation. Id at 95-96. Further, the prosecutor argued that

18
Commonwealth v. Samuel Cabrera
defendant was not a suspect, and he was merely being questioned for investigative and fact gathering

purposes. Id.

In denying defendant's motion to suppress the statement, the motions court correctly

reasoned that defendant's treatment was the same as any other witness during the early stages of an

investigation. Id. at 97. The motions court held that even if the questioning escalated into an

interrogation, defendant was not in custody. The motions court held that, under the totality of the

circumstances, defendant cannot be said to have been in custody because the conditions and duration

of the questioning never became so coercive as to constitute the functional equivalent of arrest.

Moreover, in attempting to gather an accurate account of the facts, Officer Meissler had no reason to

believe that the questions he asked were reasonably likely to elicit an incriminating response from

defendant. See Commonwealth v. Fento, 363 Pa. Super. 488 (1987) (holding that police officer's

questioning of driver as part of routine accident investigation while driver was being treated in

hospital was not "custodial interrogation" requiring Miranda warnings).

In sum, the motions court concluded that defendant was not subject to custodial interrogation

for the following reasons: the length of the interview was not excessive, its location was a

nonthreatening hospital family room, defendant was not coerced against his will, no restraints were

used, Officer Meissler did not show, threaten or use force, and defendant was not a suspect at the

time of the interview. Thus, defendant was not entitled to Miranda warnings.

Defendant next challenges his formal written and video statement given to homicide

detectives. Specifically, he claims "his formal written statement and video statement ... were taken

subsequent to a non-mirandized verbal statement and [are] thus tainted." Statement of Errors ~c.

This claim also lacks merit. Evidence is "fruit of the poisonous tree" and thus subject to suppression

if the evidence comes to light by way of exploitation of the illegality and was generally inadmissible

19
Commonwealthv. Samuel Cabrera
at trial. Commonwealth v. Abbas, 862 A.2d 606, 610 (Pa. Super. 2004) (citing Commonwealth v.

Brown, 700 A.2d 1310 (Pa.Super.1997); Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9

L.Ed.2d 441 (1963)).

The evidence at the motions hearing established that defendant was transported to the

homicide unit on August 10, 2013 around 6:50 p.m. NT 11/7/2014 at 42, 54; NT 11/12/2014 at

154-55. Detective William Sierra testified that after arrival, defendant was taken to an interview

room where he was first orally advised of his Miranda rights from the standard police interrogation

form and asked whether he wished to waive his rights. Id. Only after indicating that he wished to

waive his rights did the interview commence. NT. 11/7/2014 at 55. Defendant subsequently gave his

first explanation for/\ s . c. "s !,'injuries, and stated that the child was injured when defendant

tripped on loose carpeting and dropped him twice.NT 11/7/2014at 55. Detective Sierra then replied

"if that's your story, we'll take it, but we'll be able to prove scientifically and medically that's not

how the injuries were sustained." NT 11/12/2014 at 157.

Detective Sierra further testified that defendant was later given formal written Miranda

warnings at 10: 19 p.m. During the issuance of these warnings Detective Sierra explained to

defendant that they were going to discuss the death of three-month-old' 'S , C. f, and then read

defendant his Miranda rights. N.T 11/7/2014 at 57-61. Defendant also read the warnings and waived

them in writting before signing and dating the forms at 10:27 p.m. Id. Detective Sierra testified that

each time defendant was issued Miranda rights, both oral and written, defendant stated that he fully

understood his rights as they were explained to him and responded with identical answers. N. T

11/7/2014 at 68. When defendant was asked "do you know who is personally responsible for the

sudden death of your son?[,]" defendant stated, "[y]es, but it was an accident. I swung at my dog to

20
Commonwealth v. Samuel Cabrera
get him away from the baby and I hit my son in the side [twice] because the dog wasn't listening."

N.T 11/7/2014 at 68. Significantly, at the conclusion of defendant's interview, after reviewing his

statement and prior to signing the video statement consent form, when asked how he thought he was

treated by the detectives, defendant responded "[flair, I could have been treated worse. Due to the

circumstances, I was treated with respect and as a person, not for what was going on." N. T

11/7/2014 at 71.

During the motions hearing, defendant conceded that he waived written Miranda warnings at

approximately 10:30 p.m. but argued that despite Detective Sierra's testimony there isno evidence

that he received oral Miranda warnings prior to making his first statement. N.T 11/7/13 at 99.

Defendant now claims that his formal written statements were made only subsequent to a non-

mirandized oral statement and as such are tainted. The prosecutor countered by pointing out that

Detective Sierra's oral administration of Miranda warnings, which was actually memorialized in

defendants formal statement, negates the contention that defendant was not given the first set of

Miranda warnings. Id. at 91, 99-100. Awarding deference to tbe credibility determination of the

motions court, which found Detective Sierra to be "completely 100% credible," this court agrees that

it is not an unreasonable practice to give initial Miranda warnings orally. Commonwealth v. Hanible,

836 A.2d 36, 40 (Pa. 2003) (finding that "credibility determinations are solely within the province of

the fact-finder, and an appellate court may not reweigh the evidence and substitute its judgment for

that of the finder of fact"). Thus, the record supports the motions court's finding that defendant was

given Miranda warnings prior to both the informal oral interview and the subsequent formal written

statement. Id at 100.

Defendant alternatively claims that his waiver of the formal written Miranda rights was not

voluntary. "The determination [of] whether an accused has knowingly and voluntarily waived his

21
Commonwealth v. Samuel Cabrera
constitutional rights depends on the facts of each particular case." Commonwealth v. Cohen, 53 A3d

882, 886 (Pa. Super. 2012) (citations omitted). "It is [however] the Commonwealth's burden to

establish whether a defendant knowingly and voluntarily waived his Miranda rights." Id at 885-86.

"In order to do so, the Commonwealth must demonstrate that the proper warnings were given, and

that the accused manifested an understanding of these warnings." Id. The Superior Court has held

that a defendant has "explicitly waived his Miranda rights by clearly and unequivocally indicating

that he understood his rights and then responding to the officer's questions." Id. (emphasis added).

"Our Supreme Court elaborated that an "explicit waiver" meant "an outward manifestation of a

waiver such as an oral, written or physical manifestation." Id. For example, the Supreme Court has

found that a defendant "sufficiently manifested the intent to waive his rights" where he ''twice stating

he understood his Miranda rights after they were read to him, and answer[ed] questions

immediately."Id (emphasis added). Likewise, our Supreme Court has also concluded that a

"defendant sufficiently manifested his intent to waive his Miranda rights where those rights were

read to him, he indicated one time that he understood them, and then he answered the questions

asked by police." Id. (citing Commonwealth v. Baez, 21 A.3d 1280, 1282 (Pa. Super. 2011))

(emphasis added). Here, Detective Sierra testified that he read defendant his Miranda rights, after

which defendant indicated that he understood those rights and agreed to answer the questions asked

by the detective. Fully crediting Detective Sierra's testimony, the motions court found the absence of

any "hint of involuntariness" in the issuance of both oral and written Miranda warnings. NT.

11/7/2014 at 102. As the motions court noted, the above, coupled with viewing the video statement,

eliminates any question as to whether defendant made a knowing and voluntary statement. Id.

Indeed, during his Mirandized statement the defendant told "a story [ complete with demonstrations]

that, frankly, he had a lot of time to concoct." Id. Under our Miranda precedents, defendant

22
Commonwealth v. Samuel Cabrera
unequivocally manifested his intent to and did waive his Miranda rights. For the reasons discussed

above, the findings of fact and conclusions of law made by the motions court are supported by the

record.

Next, defendant asserts that the prison tape was not relevant or probative "where [his]

defense was that the act which led to the death of his son was not done with malice and thus did not

rise to third degree murder." Statement of Errors j d. This claim lacks merit.

On a challenge to a trial court's evidentiaryruling, [the Superior Court's] standard ofreview

is one of deference." Commonwealth v. Herb, 852 A.2d 356, 363 (Pa. Super. 2004). "Thus the

Superior Court's standard ofreview is very narrow; reversal may only occur upon a showing that the

trial court clearly abused its discretion or committed an error of law." Id. "An abuse of discretion is

not merely an error of judgment, but is rather the overriding or misapplication of the law, or the

exercise of judgment that is manifestly unreasonable ... as shown by the evidence of record.

Commonwealth v. Cameron, 780 A.2d 688, 692 (Pa. Super. 2001)." "The threshold inquiry with

admission of evidence is whether the evidence is relevant." Commonwealthv. Stokes, 78 A.3d 644,

654 (Pa. Super. 2013), appeal denied, 89 A.3d 661 (Pa. 2014). "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 the existence of a material fact."

Commonwealth v. Spiewak, 533 Pa. 1, 8, 617 A.2d 696, 699 (1992). "In addition, evidence is only

admissible where the probative value of the evidence outweighs its prejudicial impact." Stokes, 78

A.3d at 654. "However, where the evidence is not relevant there is no need to determine whether the

probative value of the evidence outweighs its prejudicial impact." Id. Under Pennsylvania law,

generally, "[t]ape recordings are admissible in evidence when they are properly identified and are a

true and correct reproduction of the statements made, and when the voices are properly identified."

23
Commonwealth v. Samuel Cabrera
Commonwealth v. Johnson, 450 Pa. 575, 578 (1973). "When properly identified as true and correct

reproductions, and when the voices are properly identified, such tape recordings are admissible."

Commonwealth v. Leamer, 449 Pa. 76, 82 (1972).

Here, defendant does not challenge the authenticity of the prison tape, nor does he argue that

he is not correctly identified as the declarant. Instead, defendant suggests that the prison tape, on

which he concocted yet a third alternative explanation as to howP S. C - received his fatal

injuries, was not relevant or probative because his "defense was that the act which led to the death of

his son was not done with malice and thus did not rise to third degree murder." Certainly, the

evidence in which defendant asserts that he did not actually inflict the injuries which led to

s _ c , '.srdeath is relevant in that it logically tends to establish a material fact in the case, make a fact

at issue more or less probable, or supports a reasonable inference or presumption regarding the

existence of a material fact-the presence or absence of malice. As the motions court explained, the

prison tape is unequivocally relevant and admissible because it "presents [defendant] coming up with

still another explanation for how] s . c . '..s injuries] happened, which has nothing to do with

anything that he said in the prior admissible statements." NT 11/7/2015 at 125. Finally, the motions

court found that the probative value of the prison tape with defendant's fabrication of a third

alternative to zs , c .1 s 'fatal injuries far outweighed its prejudicial impact. Thus, absent

overriding misapplication of the law or the exercise of judgment that is manifestly unreasonable, the

motions court's evidentiary rulings must stand.

C. Tender Years Hearsay Act

Finally, defendant raises an evidentiary claim under the Tender Years Hearsay Act.

Specifically, defendant claims that "[tjhe Motions Court erred and abused its discretion by granting

the Commonwealth's motion to allow the video testimony of child witnessi' A.W.V.

24
Commonwealth v. Samuel Cabrera
be shown at trial and admitted into evidence, as it failed to meet the reliability criteria of the Tender

Years Hearsay Act." Statement of Errors 1 e. For the following reasons, this claim lacks merit.

"An appellate court's standard of review of a trial court's evidentiary rulings, including

rulings on the admission of hearsay and determinations of witness competency, is abuse of

discretion." Commonwealth v. Walter, 93 A.3d 442, 449 (Pa. 2014) (citing Commonwealth v.

Delbridge, 578 Pa. 641, 855 A.2d 27, 34 n. 8 (2003)). "Questions concerning the admissibility of

evidence lie within the sound discretion of the trial court." Commonwealth v. Lyons, 833 A.2d 245,

255 (Pa. Super. 2003). The Superior Court "will not reverse the trial court's decision to admit

evidence pursuant to the tender years statute absent an abuse of discretion." Commonwealth v.

Curley, 910 A.2d 692, 697 (Pa. Super. 2006).

"Generally, a witness is presumed competent to testify, and the burden falls on the objecting

party to demonstrate that a witness is incompetent." Commonwealth v. Walter, 93 A.3d 442, 451 (Pa.

2014) (citing PA. R.Evm. 601 (b)) (holding that a child need not be deemed competent to testify as a

witness in order for the trial court to admit the child's out-of-court statements into evidence pursuant

to the Tender Years Hearsay Act). Under Rule 601(b), a person may be found incompetent to testify

if the Court determines that, because of ... immaturity, the person: "(l) is, or was, at any relevant

time, incapable of perceiving accurately; (2) is unable to express himself or herself so as to be

understood either directly or through an interpreter; (3) has an impaired memory; or (4) does not

sufficiently understand the duty to tell the truth." PA.R.Evm. 601(b).

However, where a child under the age of 14 is called to testify as a
witness, the trial court must make an independent determination of
competency, which requires a finding that the witness possess (1) a
capacity to communicate, including both an ability to understand
questions and to frame and express intelligent answers; (2) the mental
capacity to observe the actual occurrence and the capacity of

25
Commonwealth v. Samuel Cabrera
 remembering what it is that he or she is called to testify about; and (3)
a consciousness of the duty to speak the truth.

Walter, 93 A.3d at 451. "Unlike a determination of competency, which pertains to a witness's

capacity to testify, the Tender Years Hearsay Act concerns the admissibility of out-of-court

statements made by a child victim or witness to third parties." Id. Our Supreme Court has held that

" [t]he admissibility of this type of hearsay is determined by assessing the particularized guarantees of

trustworthiness surrounding the circumstances under which the statements were uttered to the person

who is testifying." Id

The tender years exception is codified at 42 PA. CONS. STAT. ANN. § 5985.1 and provides

in relevant part:

An out-of-court statement made by a child victim or witness, who at
the time the statement was made was 12 years of age or younger,
describing any of the offenses enumerated in 18 Pa.C.S. Chs. 25
(relating to criminal homicide) ... not otherwise admissible by statute
or rule of evidence, is admissible in evidence in any criminal or civil
proceeding if:
( 1) the court finds, in an in camera hearing, that the evidence
is relevant and that the time, content and circumstances of the
statement provide sufficient indicia ofreliability; and
(2) the child either:
(i) testifies at the proceeding; or
(ii) is unavailable as a witness.

42 PA. CONS. STAT. ANN. § 5985.1 (West). "Any statement admitted under§ 5985.l must possess

sufficient indicia of reliability, as determined from the time, content, and circumstances of its

making." Commonwealth v. O'Drain, 829 A.2d 316, 320 (Pa. Super. 2003). "There are several

factors a court may consider in determining reliability under§ 5985.1, including, but not limited to,

"the spontaneity and consistent repetition of the statement(s); the mental state of the declarant; the

use of terminology unexpected of a child of similar age; and the lack of a motive to fabricate." Fidler

v. Cunningham-Small, 871 A.2d 231, 235 (Pa. Super. 2005).

26
Commonwealth v. Samuel Cabrera
 Thus, with respect to a child witness, one of the primary concerns
Rule 601 is designed to address is a child's ability to perceive and
remember events about which the child later testifies. Conversely, in
determining whether out-of-court statements of a child contain
"particularized guarantees of trustworthiness surrounding the
circumstances under which the statements were uttered to the person
who is testifying," Delbridge, 855 A.2d at 45, and, therefore, are
admissible under the TYHA, the focus is on the truthfulness of the
statements, which is assessed by considering the spontaneity of the
statements; the consistency in repetition; the mental state of the child;
the use of terms unexpected in children of that age; and the lack of a
motive to fabricate.

Walter, 93 A.3d at 452-53.

In the this case, the Commonwealth sought to introduce into evidence a DVD of the

statement of then eight-year-old A. w, V. ; jbeing interviewed by the Philadelphia Children's

Alliance on October 28, 2013, six months after the murder.NT. 11/7/2014 at 102-105. The video

filmed only the children's alliance interviewer and the child witness, although the prosecutor, an

appointed child advocate, assigned detective and a social worker from the children's alliance

observed the interview from another room on a closed circuit television. Id. at 105-106:

Defendant argues that the video of child witness(} A. W . V .. should not have been ·

shown at trial or admitted into evidence because it failed to meet the reliability criteria of the TYRA

Statement of Errors ~ e. After reviewing the TYHA and relevant case law, the motions court

however, found that the DVD of} A. \N, V;ii;interview and the evidence contained therein11 met the

statutory requirements.NT. 11/10/2014 at 5. The motions court found, and this court agrees that said

evidence was relevant and that the time, content and circumstances of the statement provided a

sufficient indicia ofreliability. Id. at 5-6. Based on the spontaneity and consistent repetition of the

statement on the video which mirrored A. W. V .1iih court testimony, the competent mental state of

11
The motions court did however exclude portions of the child witness's testimony that referenced allegations ofabuse
involving defendant and the witness's other younger siblings.NT 11 /l 0/2014 at 6.
27
Commonwealth v. Samuel Cabrera
A. w. v. '., the use of terminology expected of a child of similar age, and the lack of a motive to

fabricate, this court finds truthfulness in the statements which were properly admitted by the motions

court under the TYHA. N. T. 11I13/2014 at 1- 7.

V. CONCLUSION

For the aforementioned reasons, this court's judgment of sentence should be AFFIRMED.

BY THE COURT

September 30, 2015
1
SANDY L.V. BYRD, J.

28
Commonwealth v. Samuel Cabrera
 Commonwealth v. Samuel N. Cabrera CP-5l-CR-0009793-2013
511 EDA 2015

PROOFOF SERVICE

I hereby certify that I am this day serving the foregoing Court Opinion upon the
person(s), and in the manner indicated below, which service satisfies the requirements of
PA. R. CRIM.PROC. 114:

Defense Counsel: Isla A. Fruchter, Esquire
Assistant Defender, Appeals Division
Defender Association of Philadelphia
1441 Sansom Street
Philadelphia, PA 19102

Type of Service: (x) First Class Mail ( ) Certified ( ) Personal Service

District Attorney: Hugh J. Bums, Jr., Esquire
Chief, Appeals Unit
Philadelphia District Attorney's Office
Three South Penn Square
Philadelphia, PA 19107-3499

Type of Service: (x) First Class Mail ( ) Certified ( ) Personal Service

Defendant: Samuel N. Cabrera
Inmate No. LW-0609
SCI- Forest
286 Woodland Drive
P.O. Box 307
Marienville, PA 16239-0307

Type of Service: (x) First Class Mail ( ) Certified ( ) Personal Service

Date: September 30, 2015

fJ),(
Law Clerk's Signature
 FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
COURT OF COMMON PLEAS
JUDICIAL CHAMBERS

SANDY L.V. BYRD THE JUSTICE JUANITA KIDD STOUT CENTER
JUOOE FOR CRIMINAL JUSTICE
1301 FILBERT STREET, SUITE 1420
PHILADELPHIA, PA 19107
(215) 683-7157

FILED FAX: (215) 683-7159
WEBSITE:HTTP://COURTS.PHILA.GOV
E-MAIL: SANDYLV .B YRD@COURTS.PHILA.GOV

SEP 3 0 2015
Criminal Appeals Unit September 30, 2015
First Judicia\ District of PA
Isla A. Fruchter, Esquire
Assistant Defender, Appeals Division
Defender Association of Philadelphia
1441 Sansom Street
Philadelphia, PA 19102

Re: Commonwealth v. Samuel N Cabrera, CP-5l-CR-0009793-2013
511 EDA 2015

Dear Ms. Fruchter:

Enclosed herein please find a true and correct copy of the Court's Opinion in the
above-captioned matter.

Sincerely,

Enclosure

cc: Hugh J. Burns, Jr., Esquire, Chief, Appeals Unit, District Attorney's Office
Samuel N. Cabrera, Defendant
 FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
COURT OF COMMON PLEAS
JUDICIAL CHAMBERS

SANDY L.V. BYRD THE JUSTICE JUANITA KIDD STOUT CENTER
JUPGE FOR CRIMINAL JUSTICE
1301 FILBERT STREET, SUITE 1420
PHILADELPHIA, PA 19107
(215) 683-7]57 '
FAX: (215) 683-7159
WEBSITB:HTTP://COURTS.PHILA.GOV
E-MAIL: SANDYLV.BYRD@COURTS.PHlLA.GOV

September 30, 2015

Lisa Eldrige
Case Flow Manager
Superior Court of Pennsylvania
530 Walnut Street, Suite 315
Philadelphia, PA 19106

RE: Commonwealth v. Samuel N. Cabrera, CP-51-CR-0009793-2013, 5Jl EDA 2015

Dear Ms. 'Eldrigel:

In regards to your notice of June I, 2015, please be advised that an opinion was filed in ·
the above-captioned case today. A copy of the opinion is enclosed. By this letter, I am requesting
that the court administrator expedite return of these records to the Superior Court.

Thank you for your courtesy in this matter.

cc: Natasha Lowe, Esquire, Appeals Unit