J-A26007-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ORLANDO RICARDO WILLIAMS :
:
Appellant : No. 880 WDA 2018
Appeal from the Judgment of Sentence December 4, 2017
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0009866-2016
BEFORE: SHOGAN, J., LAZARUS, J., and OLSON, J.
MEMORANDUM BY SHOGAN, J.: FILED NOVEMBER 26, 2019
Orlando Ricardo Williams (“Appellant”) appeals from the judgment of
sentence imposed after a nonjury trial at which he was found guilty of first-
degree murder, endangering the welfare of children (“EWC”), and recklessly
endangering another person (“REAP”).1 We affirm.
The trial court, sitting as the finder of fact, summarized the trial
evidence as follows:
[O]n June 20, 2016, [eight–year-old] J.S., was admitted into the
hospital with fatal injuries. The day before had been Father’s Day
and the family spent the day at Ohiopyle and visited Grandma at
Big Bear camp grounds. J.S. was fine all day, laughing, running,
playing, and eating pizza. (Nonjury Trial Transcript of
November 28, 2017 — December 4, 2017, (hereinafter “TT”) at
53 - 60). They left for home between 11:00 p.m. and midnight.
Aliehsa Lininger, J.S.’s mother (hereinafter “Mother”) drove the
family home and the victim slept on the way home. [Appellant]
____________________________________________
1 18 Pa.C.S. §§ 2502(a), 4304(a)(1), and 2705, respectively.
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was Mother’s boyfriend and had lived with the family since 2011.
He was the biological father of the youngest child, Z.P., but not
[of] the victim or [Mother’s thirteen-year-old son, S.S.].
The family arrived home about 1:30 a.m. J.S. fell asleep at
the table after they were home and Mother told him to go to his
room, but first take out the garbage. (TT at 64). J.S. was not
injured at this point. (TT at 65). As J.S. walked towards the front
door with the garbage, [Appellant] punched him in the chest for
attempting to take the garbage out the front door rather than the
back door. The punch caused J.S.’s head to hit the wall. (TT at
185). Mother testified that [Appellant] would physically discipline
the children using a belt, paddle, or other items. (TT at 49, 89).
After the punch, J.S. took out the garbage and then went upstairs.
J.S. had no trouble walking or going upstairs after the punch and
did not seem abnormal, so this punch could not have been the
cause of the fatal injuries. (TT at 64 - 66, 187).
Mother and S.S. left shortly after that, around 1:30 a.m.,
for Mother’s nighttime commercial cleaning job. (TT at 62, 92).
S.S. went with Mother to help her clean many nights, including
that night. (TT at 63, 188). While they were away [Appellant]
was left at home to care for J.S. and Z.P., his younger brother.
(TT at 191). Mother and S.S. returned from their job between
2:30 a.m. and 3:30 a.m. They had been away from the house
between one and two hours. (TT at 66, 191).
Soon after they returned home from work, S.S. went to his
room and [found] J.S. sleeping in his bed. (TT at 72, 193). S.S.
moved J.S. to the floor, placing a pillow underneath his head. (TT
at 193). S.S. noticed that J.S.’s clothes were wet. (TT at 197).
He was concerned about J.S.’s unusually loud snoring and went
downstairs and told Mother, who did not check on J.S. (TT at 72,
193). S.S. did not see J.S. again because when he returned to his
[room] J.S. was gone. [Appellant] had been upstairs with the
opportunity to move J.S. from the floor into J.S.’s bed.
It is important to note that J.S.’s clothes were wet when
S.S. moved him to the floor. [Appellant] told Detective Anthony
Perry as he showed the detective around the house, that he threw
water on J.S. to try to wake him up. (TT at 147). He also told
this to Detective Daniel Goughnour at the McKeesport hospital.
He said that he found J.S. unconscious in his bedroom at
approximately 3:30 a.m. and he threw water on J.S. to try to wake
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him up. [Appellant] was not in custody when [he] made these
statements. (TT at 20 - 22).
A few hours after Mother went to sleep, before 6:00 a.m.,
[Appellant] came down carrying J.S. and said they had to take
him to the hospital. (TT at 74). They took J.S. to McKeesport
Hospital and from there J.S. was transferred to Children’s
Hospital.
Dr. Jennifer Clarke, a pediatrician at the Child Advocacy
Center at Children’s Hospital, testified about J.S.’s condition. She
testified that he was admitted about 6 a.m. in critical condition.
She said he “essentially presented as dead.” (TT at 255). The
victim “had a large subdural hemorrhage with mass effect and
herniation which [caused] his fatal injury.” (TT at 258). J.S. had
a large bleed in his brain. (TT at 256 - 258). Dr. Clarke explained
what had happened to J.S.:
So subdural hemorrhages — basically there are
veins inside the head, in the brain. When they get
torn or avulsed, they bleed, and that collection is your
subdural hemorrhage. When they get large -- when
they get very large, that collection, there can be mass
effect on the brain. So the skull is basically an
enclosed space, so if there’s something bleeding in
there, there’s nowhere for that brain -- the brain gets
compressed and eventually needs to go somewhere,
and so that somewhere is your neck, and that’s what
you call herniation, when the brain goes down towards
your neck, and that causes death. ([TT at] 259)
The subdural hemorrhage was caused by repetitive
significant and severe acceleration-deceleration forces to J.S.’s
head. (TT at 275). Multiple forward and backward movements
plus impact caused the fatal brain injury. (TT at 277). The
repetitive impact was severe enough [to] have avulsed the veins.
(TT at 275). Dr. Clarke testified that “There was also bruising to
the front part of the brain so again signifying that there was a lot
of forces that acted on his brain to be shaken in his skull.” (TT at
275). A single impact would not have caused the subdural
bleeding. (TT at 277). There were abrasions, bruising and
swelling on his forehead and multiple bruises on his neck that were
not caused by medical care. J.S. did not have any preexisting
medical issues that would explain his brain injury. (TT at 266,
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270). Dr. Clarke’s diagnosis was that the fatal brain injury was
caused by child abuse. (TT at 274).
The injuries to his brain were so severe that he would have
become symptomatic immediately afterwards, but not necessarily
immediately incapacitated, perhaps losing consciousness,
showing lethargy, headaches, or vomiting. (TT at 275-276, 301).
He would not have seemed normal after the brain injury occurred.
Dr. Todd Luckasevic, a forensic pathologist [and] Associate
Medical Examiner for Allegheny County Medical Examiner’s Office
testified about the autopsy he performed on J.S. His findings were
consistent with Dr. Clark[e]’s conclusions. At the time of the
autopsy J.S. weighed 51 pounds and his height was 48 inches (TT
at 287). J.S.’s head depicted multiple contusions. There was
internal trauma to the head and brain. (TT at 294 — 296).
Dr. Todd Luckasevic concluded that J.S. had a large subdural
hemorrhage of the brain. (TT at 297). Dr. Luckasevic explained
that the bleeding in the brain was caused by:
the head striking a blunt object or a blunt object
striking the head, so in this case, again it’s more like
a -- a couple mechanisms that could occur would be a
forceful push against the wall or a forceful push
against the floor where you have a sudden stop. You
have impact and a sudden stop, because we need to
have a sudden stop to cause tearing of the bridging
veins which causes that subdural hemorrhage. So the
[skull] stops, but the brain still kind of moves in the
cranial cavity, and it breaks those bridging veins
which causes the hemorrhage. (TT at 312).
The cause of death was blunt force trauma to the head, a
homicide. It was not caused by a single blow. There were injuries
to the front, back, and right side of J.S.’s head. (TT at 311). There
were two major abrasions on the back of the head which could
have resulted in the subdural hemorrhage. The bruising of the
right side and frontal forehead definitely contributed to the
subdural hemorrhage. (TT at 303).
Trial Court Opinion, 1/22/19, at unnumbered 1–4.
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Detective James Fitzgerald and Detective Anthony Perry of the
Allegheny County Police Department testified as follows: On June 20, 2017,
at approximately 8:30 a.m., Detective Fitzgerald was informed by his
supervisor that a child was admitted to the hospital with a head injury and
was in grave condition. N.T. Trial, 11/28/17, at 24. While Detective Fitzgerald
was speaking to Mother, Appellant consented to a search of his vehicle and
the house. Id. at 27. During the vehicle search, Detective Fitzgerald
discovered a plastic bag holding the clothes that J.S. wore to the hospital and
noted that the clothes “were wet or moist.” Id. at 28. Although he later
changed his story, Appellant initially admitted to Detective Perry that
Appellant attempted to wake J.S. by throwing water on him. N.T. Trial,
11/29/17, at 147.
Detective Fitzgerald also conducted a search of Mother’s and Appellant’s
house. In J.S.’s bedroom, the detective observed red-brown stains on a sheet
that was “consistent with blood” and a red-brown stain on the wall of the
bedroom. N.T. Trial, 11/28/17, at 35–36. Subsequent testing revealed that
the blood stains collected from the bedroom matched J.S.’s DNA. N.T. Trial,
11/29/17, at 242.
At the conclusion of the bench trial on December 4, 2017, the trial court
found Appellant guilty of the aforementioned crimes. N.T. Trial, 12/4/17, at
340. The trial court sentenced Appellant on the same day to life in prison
without parole on the murder conviction, with no further penalty on the EWC
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and REAP convictions. Id. Appellant filed post-sentence motions, which the
trial court denied. This timely appeal followed. Appellant and the trial court
complied with Pa.R.A.P. 1925.
On appeal, Appellant presents the following questions for our
consideration:
1. To convict [Appellant] of First-degree murder, the
Commonwealth was required to establish that [Appellant]
killed [J.S.]. It failed to do so. Was the evidence insufficient
to support [Appellant’s] conviction?
2. To convict [Appellant] of First-degree murder, the
Commonwealth was required to establish that [Appellant]
had the specific intent to kill. It failed to do so. Was the
evidence insufficient to support this conviction?
3. To convict [Appellant] of Endangering [the] welfare of
children (F3), the Commonwealth was required to prove
that [Appellant] engaged in a course of conduct of
endangering the welfare of [J.S.]. It failed to prove a course
of conduct. Was the evidence insufficient to support this
conviction?
4. To convict [Appellant] of Recklessly endangering another
person, the Commonwealth was required to prove that
[Appellant] engaged in conduct that placed or may have
placed J.S. in danger of death or serious bodily injury.
Again, it failed to do so. Was the evidence also insufficient
to support this conviction?
Appellant’s Brief at 2–3.2
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2 Appellant raised five more issues in his Rule 1925(b) statement of errors,
but he has abandoned them on appeal. Commonwealth v. Dunphy, 20 A.3d
1215, 1218 (Pa. Super. 2011) (issues raised in 1925(b) statement that are
not included in appellate brief are waived).
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All of Appellant’s issues challenge the sufficiency of the Commonwealth’s
evidence to sustain the convictions. Because a determination of evidentiary
sufficiency presents a question of law,
our standard of review is de novo and our scope of review is
plenary. In reviewing the sufficiency of the evidence, we must
determine whether the evidence admitted at trial and all
reasonable inferences drawn therefrom, viewed in the light most
favorable to the Commonwealth as verdict winner, were sufficient
to prove every element of the offense beyond a reasonable doubt.
The facts and circumstances established by the Commonwealth
need not preclude every possibility of innocence. It is within the
province of the fact-finder to determine the weight to be accorded
to each witness’s testimony and to believe all, part, or none of the
evidence. The Commonwealth may sustain its burden of proving
every element of the crime by means of wholly circumstantial
evidence. Moreover, as an appellate court, we may not re-weigh
the evidence and substitute our judgment for that of the fact-
finder.
Commonwealth v. Baker, 201 A.3d 791, 795 (Pa. Super. 2018) (internal
citations, quotation marks, and brackets omitted).
This was a nonjury trial; therefore, the trial court served as the
factfinder. “[T]he 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. Davison, 177 A.3d 955, 957 (Pa. Super.
2018) (citation omitted).
Appellant initially challenges whether the Commonwealth offered
sufficient evidence to prove two of the elements necessary to sustain his first-
degree murder conviction: namely, that he was responsible for the killing and
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whether he acted with specific intent to kill. A person commits first-degree
murder:
when he intentionally kills another human being; an intentional
killing is defined as a “willful, deliberate and premeditated killing.”
18 Pa.C.S. §§ 2501, 2502(a), (d). To sustain a conviction for first-
degree murder, the Commonwealth must prove that: (1) a
human being was unlawfully killed; (2) the accused was
responsible for the killing; and (3) the accused acted with malice
and a specific intent to kill. A jury may infer the intent to kill
based on the accused’s use of a deadly weapon on a vital part of
the victim’s body.
Baker, 201 A.3d at 795–796 (some internal citations and quotation marks
omitted).
Appellant first discusses the actus reus element of first-degree murder
and asserts that the evidence did not identify him as the person who caused
J.S.’s death. Appellant’s Brief at 14–15. The focus of Appellant’s argument is
on the timing of J.S.’s injury. Appellant’s Brief at 17–24. According to
Appellant, evidence of the injury occurring around 3:00 a.m. was “inherently
contradictory.” Id. at 20. Appellant posits that the injury actually occurred
around 6:00 a.m., at which time Mother and S.S. were also present in the
house, and suggests that one of them could have inflicted the injury. Id. at
22. Appellant contends that the Commonwealth’s evidence identifying him as
the murderer “merely raised a conjectural suspicion which was in and of itself
insufficient to convict.” Id. at 23 (internal quotation and citation omitted).
Rejecting Appellant’s argument, the trial court based its ruling on the
following:
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The evidence . . . showed that [Appellant] was the person
responsible for the killing. J.S. was in [Appellant’s] exclusive care
when the fatal brain injuries occurred. Although the timeline is
not precise regarding the time Mother and S.S. left for work and
when they returned, it is certain that [Appellant] remained home
[with] J.S. and the younger child Z.P. for at least an hour. This
[c]ourt found Mother and S.S. to be credible when they testified
that Mother took S.S. to work with her. This [c]ourt accepted
Mother’s explanation that she had originally told the detectives
that S.S. stayed at the house while she went to work that night
because it was embarrassing to admit that she took S.S. to work
with her. (TT at 63). This [c]ourt, as fact-finder, observed Mother
at trial as she explained the reasons for her prior inconsistent
statement, and determined which of the two statements told by
the Mother was worthy of belief. Commonwealth v. Brown, 617
Pa. 107, 156, 52 A.3d 1139, 1169 (Pa. 2012). Credibility
determinations are made solely by the fact-finder, and will not be
overturned by the appellate courts. This [c]ourt, as fact-finder,
was able to exclusively weigh the evidence, assess witness
credibility, and was free to believe all, part, or none of the
witness’s testimony. Commonwealth v. Konias, 136 A.3d 1014,
1023 (Pa. Super. 2016).
The evidence proved that J.S. was in [Appellant’s] sole care
during the time period that the brain injury must have occurred.
J.S. had not received the fatal injuries before Mother and S.S. left
the house for work, as they both saw him walking upstairs
uninjured shortly before they left. The punch in J.S.’s chest that
S.S. witnessed, which caused J.S.’s head to hit a wall, could not
have caused the fatal brain injury. Both Dr. Clark[e] and
Dr. Luckasevic said that a single blow to the head would not have
caused the subdural hemorrhage that caused J.S.’s death.
Additionally, J.S. continued to take out the garbage and then
walked upstairs, which would have been impossible after the
subdural hemorrhage occurred. Mother and S.S. would have
noticed if the subdural hemorrhage occurred before they left the
house.
It is also clear from the evidence that the fatal brain injury
occurred before Mother and S.S. returned from work. Shortly
after arriving home, S.S. went upstairs to his room and J.S. was
in the bed where S.S. usually slept. When S.S. moved J.S. to the
floor, he noticed that J.S’s clothes were wet and J.S.’s snoring was
unusually loud. [Appellant] admitted to Detective Perry and
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Detective Goughnour that he poured water on J.S. attempting to
wake him. This must have occurred before Mother and S.S.
returned home since J.S. was wet when S.S. moved him. This
time-line established that [Appellant] caused the fatal brain injury
because it occurred when Mother and S.S. were at work and J.S.
was in [Appellant’s] exclusive care.
Trial Court Opinion, 1/22/19, at unnumbered 5–6.
In support of his position that the evidence was insufficient to establish
that he committed the murder, Appellant relies on Commonwealth v.
Woong Knee New, 47 A.2d 450 (Pa. 1946). The conviction in New was
based on evidence that placed the defendant with the victim at the victim’s
home shortly before he was murdered. There was, however, no evidence
tending to prove that the defendant committed the crime or casting doubt on
the equally likely possibility that an unknown assailant killed the victim after
the defendant left his company. Id. at 468. In reversing the conviction the
Pennsylvania Supreme Court noted that:
When two equally reasonable and mutually inconsistent inferences
can be drawn from the same set of circumstances, a [fact-finder]
must not be permitted to guess which inference it will adopt,
especially when one of the two guesses may result in depriving a
defendant of his life or his liberty.
Id.
In contrast, the nonjury trial we are reviewing involved fatal blunt force
trauma to the head and a parental figure who never left the scene of the
crime. The Commonwealth established that J.S. was not seriously injured
when Mother and S.S. left the house. Although S.S. witnessed Appellant
punch J.S. in the chest, causing J.S. to hit the back of his head against a wall,
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see N.T. Trial, 11/29/17, at 185–186, Mother testified that when she left the
house, there was nothing wrong with J.S. N.T. Trial, 11/28/17, at 65. S.S.
also recalled that after Appellant punched J.S., J.S. was able to walk up the
stairs without difficulty. N.T. Trial, 11/29/17, at 187. This evidence indicates
that the initial punch and resultant head bang were only the precursors to the
subsequent blunt force trauma inflicted on J.S. that night.
This conclusion is supported by Dr. Clarke’s medical opinion that an
individual with the type of brain injury that J.S. ultimately suffered would not
have been able to walk up steps. N.T. Trial, 11/29/17, at 278. Furthermore,
Dr. Clarke asserted that J.S.’s subdural bleeding could not have been caused
by a single impact; rather, it resulted from “repetitive acceleration-
deceleration forces upon the head.” Id. at 277. Dr. Luckasevic confirmed
that J.S.’s external injuries to the forehead contributed to the subdural
hemorrhage. N.T. Trial, 11/30/17, at 303. It is obvious that a punch to the
chest and hitting the back of a head on a wall would not cause an external
injury to the forehead.
We next examine the events that transpired after Mother and S.S.
returned home. When Mother walked into the house, she proceeded to the
second-floor bathroom. Mother passed by J.S.’s and Z.P.’s bedroom on her
way to the bathroom, but she did not look into their room. N.T. Trial,
11/28/17, at 68–69. She did, however, open the door to S.S.’s bedroom and,
from the hallway, observed J.S. sleeping in S.S.’s bed and heard him snoring
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loudly. Id. at 69. That was the last time she saw J.S. until Appellant woke
her in the morning. Id. at 73.
S.S. testified that when he returned home, he went upstairs to go to
sleep. N.T. Trial, 11/28/17, at 192. When he entered his bedroom, he saw
J.S. sleeping in S.S.’s bed and heard him snoring loudly. N.T. Trial, 11/28/17,
at 192. When S.S. moved J.S. to the floor, he noticed that J.S.’s clothing was
wet. Id. at 193, 197. S.S. went downstairs and told Mother that S.S. was
sleeping in his room. Id. at 194. S.S. then asked Appellant if he knew why
J.S. was sleeping in his bed. Id. at 195. Appellant responded that J.S. was
supposed to be cleaning his room. Id. After another trip down and up the
stairs, S.S. encountered Appellant walking down the steps from the upstairs.
Id. at 196. When S.S. then entered his bedroom, he noticed that J.S. was
back in his own bedroom. Id. at 197. At approximately 6:00 a.m., Appellant
came downstairs carrying J.S. and told Mother that J.S. needed to go to the
hospital. Id. at 74. According to the hospital records examined by Dr. Clarke
after J.S. was transferred to Children’s Hospital, J.S. presented at UPMC-
McKeesport with fixed and dilated pupils, a bruised forehead, no discernable
gag reflex, and a low ph level. N.T. Trial, 11/29/17, at 255. According to Dr.
Clarke, when J.S. arrived at UPMC-McKeesport “[h]e essentially presented as
dead.” Id.
This timeline establishes that, unlike the factual scenario presented in
New, there were not two equally reasonable inferences to be drawn from the
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evidence. In New, the defense presented testimony from alibi witnesses and
from the defendant designed to prove that the defendant did not kill the
victim. New, 47 A.2d at 453, 461–462. In the instant matter, there was no
evidence presented that either Mother or S.S. inflicted J.S.’s fatal injuries.
Other than looking in on J.S. from the hallway, nothing in the record indicates
that Mother had any contact with J.S. after she came home from her cleaning
job. S.S.’s contact with J.S. was his observation of J.S. in his bedroom,
hearing J.S.’s snoring, relocating J.S. to the floor, and reporting the situation
to Mother and Appellant. These facts, in contrast to those surrounding
Appellant’s activity during the time in question, do not support an equal and
reasonable inference that Mother or S.S. killed J.S. Thus, we consider the
factual posture of New distinguishable from the case at hand.
To conclude, our review of the evidence supports the trial court’s
findings with regard to Appellant’s involvement in J.S.’s death. While we agree
with Appellant that there is no direct evidence of what transpired between J.S.
and Appellant when J.S. was in Appellant’s exclusive care, the circumstantial
evidence established that Appellant caused J.S.’s fatal injuries. Despite
defense counsel’s forceful effort to undermine the Commonwealth’s case, as
the factfinder, the trial court was free to believe the Commonwealth’s theory
and evaluate the evidence in a manner supporting its decision that Appellant
was the only person who could have injured J.S. Viewing the trial evidence
and all reasonable inferences drawn therefrom in the light most favorable to
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the Commonwealth as verdict winner, we agree with the trial court that the
evidence was sufficient to prove beyond a reasonable doubt that Appellant
was the perpetrator of these crimes.3
Appellant’s second issue challenges the mens rea element of first-
degree murder; specifically, Appellant contends that the Commonwealth failed
to prove he had the requisite intent to kill the victim. Appellant’s Brief at 24.
“A criminal homicide constitutes murder of the first degree when it is
committed by an intentional killing.” 18 Pa.C.S. § 2502(a). An intentional
killing is “by means of poison, or by lying in wait, or by any other kind of
willful, deliberate and premeditated killing.” 18 Pa.C.S. § 2502(d). “It is well-
established that to convict a defendant of first-degree murder, the
Commonwealth must show that the defendant killed another person with the
specific intent to kill that person and malice aforethought.” Commonwealth
v. Perez, ___ A.3d ___, 2019 PA Super 300, *6 (Pa. Super. filed October 7,
2019) (quoting Commonwealth v. Santos, 876 A.2d 360, 363 (Pa. 2005)).
____________________________________________
3 To the extent Appellant is challenging the weight of the evidence, the issue
is waived for failure to include it in his Rule 1925(b) statement.
Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998) (“Any issues not
raised in 1925(b) statement will be deemed waived.”). Additionally, even if
certain language in Appellant’s 1925(b) statement might imply that he is
advancing a weight-of-the-evidence claim, we will not review it because
Appellant did not develop this argument in his appellate brief.
Commonwealth v. Charleston, 94 A.3d 1012, 1022 (Pa. Super. 2014)
(issue waived when the appellant failed to develop argument on appeal). See
also Dunphy, 20 A.3d at 1218 (issues raised in 1925(b) statement that are
not included in appellate brief are waived).
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“Specific intent to kill can be established through circumstantial evidence,
such as the use of a deadly weapon on a vital part of the victim’s body.” Id.
(quoting Commonwealth v. Mattison, 82 A.3d 386, 392 (Pa. 2013)).
“Specific intent to kill can be proven where the defendant knowingly applies
deadly force to the person of another.” Commonwealth v. Haney, 131 A.3d
24, 36 (Pa. 2015) (quotations and citation omitted). Specific intent to kill can
be discerned from the conduct and attending circumstances, showing the
perpetrator’s state of mind. Commonwealth v. Gonzalez, 858 A.2d 1219,
1223 (Pa. Super. 2004).
Appellant recognizes that first-degree murder is an intentional killing.
Appellant’s Brief at 24. Focusing on the “willful, deliberate and premeditated”
category of intentional killings, Appellant claims the evidence failed to prove
that he “consciously considered beforehand” or “plotted in advance” to kill the
victim. Id. at 29. Appellant points to the lack of direct evidence of Appellant’s
intent to fatally injure J.S.: “[W]e truly don’t know how J.S. was injured.” Id.
at 30. He also dismisses as “nebulous” the evidence surrounding the
circumstances of J.S.’s death: “[It] failed to show that [Appellant] knowingly
used deadly force.” Id. (emphasis in original).
The trial court disagreed, citing the expert medical opinions of
Dr. Clarke, that “[m]ultiple forward and backward movements plus impact
caused the fatal brain injury,” Trial Court Opinion, 1/22/19, at unnumbered 3,
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and of Dr. Luckasevic that a single blow to the head would not have caused
the subdural hemorrhage that caused J.S.’s death. Id. at unnumbered 4.
Based on this evidence, the trial court concluded, “[T]he use of deadly
force on the helpless young victim [Appellant] was entrusted to protect
showed specific intent to kill, even though there was no evidence showing with
particularity how the beatings were carried out.” Trial Court Opinion, 1/22/19,
at unnumbered 7 (citing Commonwealth v. Woodward, 129 A.3d 480, 491
(Pa. 2015)). In response to Appellant’s claim that the verdict was based on
speculation and facts not of record, the trial court opined: “[A]lthough there
was no testimony to show exactly how the beating was carried out, this court
did not speculate by concluding that [Appellant] banged the victim’s head on
a flat surface, not once but multiple times.” Trial Court Opinion, 1/22/19, at
unnumbered 7. Again, the trial court relied on the expert medical testimony
as to the cause of the victim’s injuries. Id.
The trial court also considered Appellant’s post-injury actions as
indicative that he acted with the specific intent to kill. The trial court observed,
knowing that J.S. was nonresponsive, Appellant threw water on J.S. to rouse
him. Despite causing grave injury to the victim, Appellant did not seek
medical attention immediately. Rather, he waited several hours before waking
Mother and taking J.S. to the hospital. According to the trial court, Appellant’s
“refusal to seek timely medical attention satisfied the specific intent to kill
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element of first-degree murder.” Trial Court Opinion, 1/22/19, at unnumbered
6.
Appellant relies heavily on our decision in Commonwealth v.
Predmore, 199 A.3d 925 (Pa. Super. 2018) (en banc), to challenge the trial
court’s specific-intent-to-kill determination. In Predmore, the victim
confronted the defendant at the victim’s ex-girlfriend’s house. After a fight
between the men, the defendant retrieved a gun from his car and pointed it
at the victim’s chest. When the victim turned and ran away, the defendant
fired three shots—two of which hit the victim in the back of his calves. Id. at
927. When the defendant was charged with various offenses, he filed a
habeus corpus motion to dismiss the attempted murder charge, and the trial
court ruled that “the Commonwealth failed to present prima facie evidence of
[the defendant’s] specific intent to kill the victim.” Id.
On review, we observed that the “‘use of a deadly weapon directed at a
vital organ of another human justifies a factual presumption that the actor
intended death unless the testimony contains additional evidence that would
demonstrate a contrary intent.’” Predmore, 199 A.3d at 931 (quoting
Commonwealth v. Alston, 317 A.2d 229, 231 (Pa. 1974)). See also
Commonwealth v. Knox, ___ A.3d ___, 2019 PA Super 278, *5 (Pa. Super.
filed September 12, 2019) (citation omitted) (factfinder may infer malice
“from the use of a deadly weapon upon a vital part of the victim’s body.”).
We then determined that the presumption did not apply in Predmore because
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the defendant did not shoot the victim in a vital organ, and in the absence of
that presumption, the Commonwealth was required to demonstrate other
evidence of a specific intent to kill. Predmore, 199 A.3d at 931–932 (citation
omitted).
Appellant urges that Predmore precludes a conclusion that Appellant
had the specific intent to kill J.S. because the evidence did not show (1) that
a deadly weapon was applied to a vital organ, or (2) that Appellant verbally
indicated that he intended to kill J.S. Appellant’s Brief at 33. Neither position
has merit.
First, although Appellant does not explain whether he is refuting the use
of a deadly weapon or denying that a vital organ was involved, he would be
mistaken in either instance. A victim’s head is “a vital part of the body.”
Commonwealth v. Chine, 40 A.3d 1239, 1242 (Pa. Super. 2012).
Regarding the deadly weapon element, although the Pennsylvania
Supreme Court noted in Commonwealth v. Thomas, 594 A.2d 300 (Pa.
1991), that malice is not ordinarily evident when a homicide results from a
beating without weapons, the Court further explained that “the presence of
malice is a question to be determined by examining all the circumstances of
the assault.” Id. at 302. The Court then described three instances wherein
beatings without weapons supported a finding of malice. See
Commonwealth v. Moore, 412 A.2d 549, 551 (Pa. 1980) (quotation and
citation omitted) (“size of assailant, manner in which fists were used, the
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ferocity of the attack and its duration and provocation” were circumstances
supporting a malice finding); Commonwealth v. Buzard, 76 A.2d 394, 396
(Pa. 1950) (malice disclosed where the defendant was taller and heavier than
the victim, he forced the victim to the ground and beat him repeatedly on both
sides of the face and head); and Commonwealth v. Dorazio, 74 A.2d 125,
126–127 (Pa. 1950) (former professional prize fighter stood over the victim
and struck him repeatedly thereby causing a massive brain hemorrhage).
Thomas, 594 A.2d at 302.
At the time of the instant offense, Appellant was thirty-eight years old
and weighed 170 pounds; J.S. was eight years old and weighed fifty-one
pounds. Criminal Complaint, 8/9/16, Trial Court Docket Entry 2; N.T. Trial,
11/27/17, at 43; N.T. Trial, 11/30/17, at 302. The medical evidence
established “a single impact would not have caused the [brain injury. Rather,
it was caused by] multiple forward and backward movements plus impact.”
N.T. Trial, 11/29/17, at 277. As in Moore, Buzard, and Dorazio, the
circumstances surrounding J.S.’s killing support a malice finding. Appellant
directed a deadly weapon, repeated use of his hands, on a much younger,
smaller victim, at J.S.’s head. Accordingly, the presumption of malice applies
in this matter unless additional evidence demonstrates a contrary intent.
Predmore, 199 A.3d at 931.
Appellant asserts that his “complete lack of any verbal expression of
intent to kill . . . weighs against a finding that the evidence reasonably
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supported an inference of intent to kill.” Appellant’s Brief at 33. This
argument is specious. While Appellant cites Predmore to support his claim
that absent his verbal indication that he intended to kill J.S., a finding of malice
is unwarranted, the Predmore Court discussed such verbalization in the
context of whether, in the absence of the presumption of malice, such an
articulation, or lack thereof, was relevant to finding a specific intent to kill.
Predmore, 199 A.3d at 932. Here, where the presumption of malice does
apply, this evidence hardly suggests a contrary intent.
Nor does the decision in In the Interest of J.B., 189 A.3d 390 (Pa.
2018), advance Appellant’s argument that the evidence was insufficient to
prove the mens rea element for first degree murder. In J.B., the Pennsylvania
Supreme Court analyzed the sufficiency of the Commonwealth’s evidence
supporting the conviction of an eleven-year-old boy for murdering his
stepmother. The Court concluded:
all of the Commonwealth’s forensic and eyewitness testimony, and
all reasonable inferences derived therefrom, viewed in a light most
favorable to it, was, at best, in equipoise, as it was equally
consistent with two possibilities: first, that a person or persons
unknown entered the house in which J.B.’s stepmother was sleeping
and shot her to death . . .; second . . . J.B. . . . shot the victim in
the back of the head. . . . The Commonwealth’s evidence was,
therefore, insufficient as a matter of law to overcome Appellant’s
presumption of innocence, and the juvenile court’s adjudication of
his delinquency for these serious crimes must be reversed.
J.B., 189 A.3d at 421–422.
Relying upon the “equipoise doctrine,” Appellant offers, “[A]ssum[ing]
the worst—that as a result of [Appellant’s] actions, J.S. hit his head off the
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wall and floor more than once—then one reasonable inference” is that
Appellant struck the victim “with the intent to cause bodily injury rather
than with a premedi[t]ated intent to kill . . . .” Appellant’s Brief at 38
(emphasis in original). Appellant thus urges that the evidence equally
supports an inference that he did not possess the mens rea necessary to
validate a first-degree murder conviction.
We have previously discussed the sufficiency of the evidence
demonstrating the requisite malice for Appellant’s murder conviction. We
credit that same evidence to reject Appellant’s reliance on the equipoise
doctrine.
Finally, Appellant attempts to distinguish this matter from other child-
abuse cases wherein the first degree murder convictions were premised on
particularly gruesome acts. See e.g., Commonwealth v. Tharp, 830 A.2d
519 (Pa. 2003) (child restrained, starved to death, and body disposed of in
trash bags placed at roadside); Commonwealth v. Powell, 956 A.2d 406
(Pa. 2008) (beatings so severe as to alter appearance of child’s face, extensive
physical injuries inflicted on the child, and failure to timely seek medical
assistance); and, Commonwealth v. Chambers, 980 A.2d 35 (Pa. 2009)
(child beaten with an extension cord, thrown across the room, and slowly
suffocated). Citing extreme examples of ongoing abuse does not diminish or
excuse Appellant’s actions and in no way downgrades the suffering J.S.
endured.
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In summation, we find support in the record for the trial court’s findings
regarding Appellant’s specific intent to kill. In doing so, we strenuously reject
Appellant’s assertion that “this case is a far cry away from a situation where
a defendant knowingly used deadly force, such as when he strangles the life
out of his victim.” Appellant’s Brief at 30 (emphasis omitted). The medical
evidence established that Appellant inflicted blunt force trauma to J.S.’s head,
a vital organ, by striking it against a hard flat surface multiple times. Appellant
then waited several hours to seek medical attention for the victim. Viewing
the evidence and reasonable inferences drawn therefrom in the light most
favorable to the Commonwealth, we discern no error in the trial court’s
conclusion that the evidence was sufficient to prove beyond a reasonable
doubt that Appellant acted with the specific intent to kill.
Appellant combines his third and fourth issues, assailing the
Commonwealth’s actus-reus evidence as insufficient to support the EWC and
REAP convictions. Appellant’s Brief at 48. According to Appellant, because
the Commonwealth failed to prove that he “inflicted J.S.’s injuries[, i]t thus
likewise failed to show that [Appellant] recklessly engaged in conduct which
places or may place another person in danger of death or serious bodily injury”
and “engaged in a course of conduct of endangering the welfare of a child.”
Id. (quoting 18 Pa.C.S. §§ 2705 and 4304(b)(1)(ii)).
“A parent, guardian or other person supervising the welfare of a child
under 18 years of age, or a person that employs or supervises such a person,
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commits an offense if he knowingly endangers the welfare of the child by
violating a duty of care, protection or support.” 18 Pa.C.S. § 4304(a)(1). If
the actor engaged in a course of conduct of endangering the welfare of a child
or created a substantial risk of death or serious bodily injury, the offense
constitutes a felony of the third degree. Id. at (b)(1)(ii), (iii). As noted, J.S.
was under Appellant’s care while Mother was at work.
“A person commits a misdemeanor of the second degree if he recklessly
engages in conduct which places or may place another person in danger of
death or serious bodily injury.” 18 Pa.C.S. § 2705. The degree of culpability
required is recklessness, defined in 18 Pa.C.S. § 302, as follows:
(b) Kinds of culpability defined.—
* * *
(3) A person acts recklessly with respect to a material element of
an offense when he consciously disregards a substantial and
unjustifiable risk that the material element exists or will result from
his conduct. The risk must be of such a nature and degree that,
considering the nature and intent of the actor’s conduct and the
circumstances known to him, its disregard involves a gross
deviation from the standard of conduct that a reasonable person
would observe in the actor's situation.
18 Pa.C.S § 302(b)(3). “Recklessly endangering another person is a crime
‘directed against reckless conduct entailing a serious risk to life or limb out of
proportion to any utility the conduct might have.’” Commonwealth v.
Vogelsong, 90 A.3d 717, 719 (Pa. Super. 2014) (citing Commonwealth v.
Rivera, 503 A.2d 11 (Pa. Super. 1985) (en banc)). Thus, to support a REAP
conviction, the evidence must establish that the defendant acted recklessly in
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a manner that endangered another person. 18 Pa.C.S. § 2705. A person acts
in a reckless manner when he consciously disregards a substantial and
unjustifiable risk. 18 Pa.C.S. § 302(b)(3).
Disposing of Appellant’s EWC argument, the trial court observed that
the term “course of conduct” is used “to differentiate the penalties for single
and multiple endangering acts.” Trial Court Opinion, 1/22/19, at unnumbered
8 (citing Commonwealth v. Kelly, 102 A.3d 1025, 1031 (Pa. Super. 2014)).
According to the trial court, the evidence demonstrated that Appellant
“knowingly endangered the victim’s welfare and violated the duty of care and
protection” by punching J.S. in the chest and later hitting J.S.’s head multiple
times. Trial Court Opinion, 1/22/19, at unnumbered 8. The trial court also
rejected Appellant’s REAP argument: “This claim has already been refuted.
The evidence proved that [Appellant] caused fatal injuries to J.S. and then
failed to seek medical assistance until hours later.” Id.
Again, our scrutiny of the record reveals support for the trial court’s
findings. Given our standard of review, we agree with the trial court that the
EWC and REAP evidence was sufficient to prove beyond a reasonable doubt
that Appellant engaged in a course of conduct that recklessly—and fatally—
endangered the child victim.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/26/2019
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