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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
JOSHUA STEVEN PERRY
Appellant No. 585 MDA 2016
Appeal from the Judgment of Sentence October 27, 2015
In the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-CR-0007652-2014
BEFORE: BOWES, LAZARUS AND MUSMANNO, JJ.
MEMORANDUM BY BOWES, J.: FILED MAY 10, 2017
Joshua Perry appeals from the judgment of sentence of sixty-six to
132 months incarceration imposed following his convictions for aggravated
assault and endangering the welfare of a child. We affirm.
The following facts were presented at trial. The victim in this case is
L.L., an eighteen-month-old child. On October 20, 2014, Appellant, who was
dating L.L.’s mother K.M., watched the child while K.M. was at work.
Appellant told K.M. via text message that L.L. jumped out of his crib and fell.
N.T., 9/8-10/15, at 106. This incident occurred while K.M.’s grandfather was
present in the household, albeit in another room. Id. at 121. K.M. lowered
the mattress level in the crib to prevent future incidents. Id. at 129.
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On October 23, 2014, K.M. took L.L. to a previously-scheduled
wellness check. The pediatrician, Dr. James Sioma, testified that the
mother’s primary concern was L.L.’s biting and scratching behaviors. Id. at
175. L.L.’s vital signs were normal and Dr. Sioma did not note any other
issues. Id. at 177. L.L. was smiling, playful, alert, and active. Id. at 178.
On October 24, 2014, L.L.’s father took custody for the weekend. Id.
at 144-47. The father testified that the child did not suffer any falls or other
injuries, and was generally normal. Id. at 146. On October 26, 2014, K.M.
regained custody of L.L. Id. at 147. That evening, she took the child to a
family birthday party where he played, ate cake, and showed no signs of
distress. Id. at 109.
On October 28, 2014, K.M. left L.L. in Appellant’s care while she went
to work.1 No one else was in the home. Id. at 111. K.M. sent text
messages throughout the morning, with Appellant replying at approximately
11:00 a.m., stating that he was unpacking and moving things. Id. at 112.
At approximately 2:19 p.m., Appellant began calling. At 2:30 p.m., K.M.
returned the call. Appellant told her that she needed to get to the hospital.
Id. at 112. She learned that Appellant had taken L.L. to the emergency
room at Holy Spirit Hospital in his vehicle instead of calling for emergency
services.
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1
On or about October 23, 2014, K.M. and Appellant moved in together.
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Dr. Salvatore Alfano, the treating physician, testified that L.L.
presented in serious condition and required resuscitation. Appellant told Dr.
Alfano that he had put L.L. down for a nap and checked on him thirty
minutes later, whereupon he saw that the child was unresponsive. Id. at
77. Dr. Alfano sent L.L. for a CAT scan, which revealed a subdural
hematoma and bleeding of the brain. Id. L.L. was transferred to Hershey
Medical Center Pediatric Hospital.
The local police department was alerted and Officer Scott Rood, an
officer located in the hospital’s jurisdiction of Cumberland County, responded
and spoke to Appellant. Id. at 85. Appellant told Officer Rood that he put
L.L. down for a nap between 1:30 and 2:00 p.m., and woke him up fifteen to
forty-five minutes later in order to go outside and play. Id. at 87. Appellant
stated that he put L.L. on the floor and turned to get a diaper; when he
turned around he saw that L.L. was unconscious. He then took L.L. to the
hospital. Id. at 88. During the conversation, Officer Rood learned that the
injury had occurred in York County and called their communication center.
Detective William Haller, of the Northern York County Regional Police,
went to the hospital and spoke to Appellant, who again indicated that he had
put L.L. in his crib for a nap around 1:45 p.m. Id. at 186. Appellant stated
that he woke the child about fifteen minutes later in order to take him
outside to play. Id. Appellant gave the detective his cell phone and
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authorized a search of the residence. Nothing of evidentiary value was
recovered. Id. at 191.
Dr. Kent Hymel, a child abuse pediatrician at Hershey Medical Center,
was asked to consult for a possible abuse diagnosis and later testified as an
expert witness. He opined that the child’s injuries could not have resulted
from a fall from the crib. Id. at 228. Dr. Hymel reached this conclusion
after reviewing L.L.’s injuries, which included a subdural hemorrhage,
multilayered retinal hemorrhaging, and extensive swelling. The swelling
required the removal of a bone flap to reduce the pressure. Id. at 227.
Dr. Hymel also offered testimony regarding the expected onset of
symptoms associated with the type of traumatic injuries present in L.L.’s
brain. Dr. Hymel emphasized the clinical signs of distress exhibited by L.L.:
[H]e did stop breathing and needed intubation and his heart rate
stopped. That tells me he had distortions of deep structures at
the base of the brain near where the spinal cord joins the base
of the brain. The only – in the absence of penetrating trauma
like a bullet going down to those structures, the only mechanism
for closed head trauma, meaning nonpenetrating head trauma,
would be head trauma that puts the head into violent motion on
the neck.
Id. at 231. This led Dr. Hymel to opine that L.L. was injured “very shortly,
perhaps seconds, minutes before he became clearly and persistently ill.
That is the expectation when we see such definitive signs of moderate or
severe or even life-threatening injury. They are not going to be normal
thereafter.” Id. at 237. The severity of L.L.’s injuries led Dr. Hymel to
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reject the notion that L.L.’s clinical signs of distress could be a delayed onset
of symptoms from an earlier traumatic injury. “If you are going to suffer a
head injury from a fall and later it’s going to cause you to nearly die, you are
not going to be completely asymptomatic between the time of that fall and
later when you deteriorate.” Id. at 229.
This expert testimony was countered by Appellant’s expert, Dr. Robert
Zimmerman, the Chief of Pediatric Neuroradiology at Children’s Hospital of
Philadelphia. Id. at 294. He agreed that the injury was caused by trauma.
Id. at 317. Contrary to Dr. Hymel, Dr. Zimmerman opined that the injuries
could have resulted from an accident. Id. at 312. He also stated that Dr.
Hymel’s calculation of the timing was not necessarily correct. Id. at 307-08.
He described to the jury his review of multiple brain scans which were
progressively taken during the course of L.L.’s treatment. Based on this
review, he opined that whatever traumatic event caused L.L.’s injuries could
have occurred anywhere from one day to three days before the 28th. Id. at
316. With respect to the onset of symptoms, Dr. Zimmerman stated that an
eighteen-month-old child could exhibit a period of lucid behavior or what
would appear to be asymptomatic activity following the traumatic event. Id.
at 306. However, he conceded that lucid intervals are primarily seen in
cases where the hemorrhage was epidural, not subdural as in L.L.’s case.
Id. at 317.
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The jury convicted Appellant of aggravated assault and endangering
the welfare of a child. Appellant timely filed post-sentence motions, which
were ultimately denied on April 1, 2016. See Pa.R.Crim.P. 720(B)(3)(b).
The case is now ready for our review. Appellant raises two issues.
1. The Commonwealth presented insufficient evidence to convict
Appellant beyond a reasonable doubt of aggravated assault
and endangering the welfare of [a] child, because the jury
could only speculate among conflicting inferences regarding
Appellant’s guilt given the testimony, including the medical
testimony, presented.
2. The trial court abused its discretion in failing to grant a new
trial because the jury’s verdict is against the weight of the
evidence and shocks the conscience given that the evidence
was so weak and inconclusive that it required the jury to
speculate about Appellant’s level of culpability, if any, and
how the injuries to the minor child occurred.
Appellant’s brief at 5.
Appellant’s first issue concerns the sufficiency of evidence to sustain
the convictions at both charges. Our standard of review is well-settled:
[W]e examine whether the evidence admitted at trial, and all
reasonable inferences drawn therefrom, viewed in the light most
favorable to the Commonwealth as verdict winner, support the
jury's finding of all the elements of the offense beyond a
reasonable doubt. The Commonwealth may sustain its burden by
means of wholly circumstantial evidence.
Commonwealth v. Doughty, 126 A.3d 951, 958 (Pa. 2015). Moreover,
the Commonwealth need not establish guilt to a mathematical
certainty. Any doubt about the defendant's guilt is to be resolved
by the fact finder unless the evidence is so weak and
inconclusive that, as a matter of law, no probability of fact can
be drawn from the combined circumstances. The Commonwealth
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may sustain its burden by means of wholly circumstantial
evidence.
Commonwealth v. Lynch, 72 A.3d 706, 708 (Pa.Super. 2013) (en banc)
(internal citations and quotation marks omitted).
Appellant was convicted of aggravated assault (serious bodily injury)
and endangering welfare of a child. To prove aggravated assault, the
Commonwealth must show that Appellant “attempt[ed] to cause serious
bodily injury to another, or cause[d] such injury intentionally, knowingly or
recklessly under circumstances manifesting extreme indifference to the
value of human life[.]” 18 Pa.C.S. § 2702(a)(1). To establish endangering
the welfare of a child, the Commonwealth must establish that Appellant
supervised L.L. and “knowingly endanger[ed] the welfare of the child by
violating a duty of care, protection or support.” 18 Pa.C.S. § 4304(a)(1).
Appellant’s challenge to both convictions rests on the same point: that
the Commonwealth failed to present sufficient evidence of causation. His
argument is that nothing linked Appellant to L.L.’s injuries other than the
sheer speculation supplied by expert testimony. Primarily, Appellant notes
that Dr. Hymel’s testimony “merely speculates given his expertise in child
abuse that since an ‘explanation was never provided’ about the injury, the
only conclusion must be that it was the result of abuse. However, the
absence of explanation does not prove the conclusion of child abuse without
the actual existence of evidence.” Appellant’s brief at 22.
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We disagree. Crediting the Commonwealth’s expert testimony, as we
must when reviewing a challenge to the sufficiency of the evidence, we
accept that an accidental cause for the injuries was eliminated. Thus, the
only remaining explanation is an intentional act. Significantly, the
Commonwealth’s expert addressed the relationship between the severity of
L.L.’s injuries and when the traumatic event must have occurred. The
Commonwealth is entitled to prove its case through circumstantial evidence,
and, accepting Dr. Hymel’s testimony regarding timing as true, the injury
occurred “very shortly, perhaps seconds, minutes before he became clearly
and persistently ill.” N.T., 9/8-10/15, at 237. “The opinion of a medical
expert witness rendered to the requisite degree of certainty is itself
evidence.” Commonwealth v. Martin, 101 A.3d 706, 729 (Pa. 2014)
(citing Commonwealth v. Meals, 912 A.2d 213, 223-24 (Pa. 2006)).
Additionally, L.L.’s mother testified that she left for work at 5:30 a.m. and
Appellant was the only person in the house. Id. at 111. Thus, Appellant
was the only person who could have inflicted the injuries during the relevant
timeframe. Furthermore, Dr. Hymel noted that L.L.’s ear showed signs of
bruising, which he deemed significant since children rarely, if ever, bruise
their ear in an accidental fall. Id. at 233-34. Taken together, this evidence
serves to establish the necessary causal link. See also Commonwealth v.
Passarelli, 789 A.2d 708 (Pa.Super. 2001), affirmed, 825 A.2d 628 (Pa.
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2003) (reviewing sufficiency of evidence where Commonwealth and defense
offered competing expert testimony regarding shaken baby syndrome).
Appellant’s response to the timing issue is that the “testimony does
not address the possibility that the child either accidentally, or intentionally
due to the recent history of anxiety, smacked his head into the side of his
crib.” Appellant’s brief at 21. Contrary to this assertion, Dr. Hymel did
address this point and rejected the theory that L.L.’s injury was self-inflicted.
Q. And could [L.L.] have inflicted this [injury] on himself?
A. Let’s presume – I can’t think how [L.L.] would have gross
motor skills to put himself in a position of doing this to
himself. I guess it’s conceivable an 18-month-old could fall
from a third story window or a much more severe fall could
maybe approach this level of severity. But someone would
have been there to pick him up.
N.T., 9/8-10/15, at 230.
Finally, Appellant notes that Dr. Hymel acknowledged on cross-
examination that he was unaware that the child vomited after falling from
his crib on October 20, a fact admitted by the child’s mother and noted in
Dr. Alfano’s medical records. Id. at 81. Appellant points out that Dr. Hymel
listed vomiting as one of the symptoms that can accompany head injury.
Id. at 229. Appellant suggests that this proves L.L. was not wholly
asymptomatic and therefore undercuts the expert opinion. However, Dr.
Hymel never indicated that learning this fact changed his opinion in any way,
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and Appellant did not ask him that question.2 Thus, the evidence was
sufficient to support the jury’s determination that Appellant intentionally
inflicted L.L.’s injuries. Since causation is the only aspect of the convictions
that Appellant challenges, we reject his sufficiency challenges.
We now examine Appellant’s second claim, which attacks the trial
court’s denial of his weight of the evidence claim. Our standard of review is
well-settled. We review the exercise of the trial court's discretion in ruling
on the weight claim, not the underlying question of whether the verdict is
against the weight of the evidence. Commonwealth v. Leatherby, 116
A.3d 73, 82 (Pa.Super. 2015) (citing Commonwealth v. Brown, 23 A.3d
544, 558 (Pa.Super. 2011)). The trial court should grant a new trial “only
when the verdict is so contrary to the evidence that it shocks one's sense of
justice and the award of a new trial is imperative so that right may be given
another opportunity to prevail.” Commonwealth v. Rayner, 153 A.3d
1049, 1056 (Pa.Super. 2016) (citation omitted). “One of the least assailable
reasons for granting or denying a new trial is the lower court's conviction
that the verdict was or was not against the weight of the evidence and that a
new trial should be granted in the interest of justice.” Leatherby, supra at
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2
We note that Dr. Hymel stated, “I have only ever heard of children being
symptomatic and some of those with less severe trauma may have been
only mildly symptomatic, irritability, and vomiting.” N.T., 9/8-10/15, at
249-50 (emphasis added).
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82. We can only reverse for an abuse of discretion. “Discretion is abused
when the course pursued represents not merely an error of judgment, but
where the judgment is manifestly unreasonable or where the law is not
applied or where the record shows that the action is a result of partiality,
prejudice, bias or ill will.” Commonwealth v. Widmer, 744 A.2d 745, 753
(Pa. 2000) (citation omitted).
Instantly, Appellant’s weight argument is the same as his sufficiency
argument, in that he avers the jury was required to credit his expert’s
testimony.
The arguments and reasons outlined in the [sufficiency of the
evidence] section are equally applicable to a weight of the
evidence claim. The Commonwealth’s evidence simply fails to
connect the injur[y] to [Appellant]’s conduct and leaves open the
possibility that the injury occurred while the child was in the
custody of his biological father, or at [the] birthday party.
Appellant’s brief at 26.
In Commonwealth v. Edwards, 903 A.2d 1139, 1148 (Pa. 2006),
our Supreme Court addressed a weight claim where the appellant essentially
repeated a sufficiency argument.
In an argument subsumed within his sufficiency claim, appellant
also contends that the verdicts for first-degree murder and
burglary were against the weight of the evidence. Although
appellant cites to the standard for reviewing a weight claim, he
does not forward an argument relating to the standard. Instead,
the only argument forwarded, to the extent one is made at all, is
the one summarized above respecting sufficiency. Thus,
appellant does not say why, or in what respect, the verdict was
against the weight of the evidence.
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Id. at 1148. The same is true here. Appellant explicitly repeats the same
arguments he advanced in attacking the sufficiency of the evidence. In
reviewing a weight claim, we are not required to view the evidence in the
light most favorable to the verdict winner. Commonwealth v. Widmer,
744 A.2d 745, 751 (Pa. 2000) (citing Tibbs v. Florida, 457 U.S. 31, 38,
n.11 (1982)). However, the trial judge is called upon to determine whether,
“notwithstanding all the facts, certain facts are so clearly of greater weight
that to ignore them or to give them equal weight with all the facts is to deny
justice.” Id. at 752.
Appellant’s expert testimony does establish that the injury may have
occurred at some other time. But the trial court, which sat and heard all of
the evidence, did not find the jury’s rejection of Dr. Zimmerman’s testimony
to rise to the level of shocking its own sense of justice. Since the jury was
free to reject or credit such expert testimony as it saw fit, Martin, supra,
we do not find that the trial court was manifestly unreasonable in rejecting
the weight claim. Hence, we do not find the court abused its discretion.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/10/2017
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