J-S18020-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
VERNELL HOLLAND NICKENS, IV :
:
Appellant : No. 1397 MDA 2019
Appeal from the Judgment of Sentence Entered March 13, 2019
In the Court of Common Pleas of Lebanon County
Criminal Division at No(s): CP-38-CR-0000624-2018
BEFORE: KUNSELMAN, J., KING, J., and STEVENS, P.J.E.*
MEMORANDUM BY KING, J.: FILED JULY 27, 2020
Appellant, Vernell Holland Nickens, IV, appeals from the judgment of
sentence entered in the Lebanon County Court of Common Pleas, following his
jury trial convictions for three counts of aggravated assault, two counts of
simple assault, and one count each of recklessly endangering another person
(“REAP”) and endangering the welfare of children (“EWOC”).1 We affirm.
The relevant facts and procedural history of this case are as follows.
Appellant and A.G. (“Mother”) are the married parents of M.N. (“Child”). On
January 13, 2018, Mother went to work and left Appellant at home to care for
Child and Child’s older sister. At the time, Child was five months old. The
____________________________________________
* Former Justice specially assigned to the Superior Court.
1 18 Pa.C.S.A. §§ 2702(a)(8), (9); 2701(a)(1); 2705; and 4304(a)(1),
respectively.
J-S18020-20
following day, January 14, 2018, Mother noticed that Child was not eating or
acting normally. On January 15, 2018, Mother and Appellant took Child to the
emergency room. Doctors determined that Child had suffered subdural and
retinal hemorrhages. Doctors also observed a bruise on Child’s leg that was
uncommon for a non-mobile five-month-old. Appellant later told state police
that Child was crying on the night in question, and Appellant pulled Child “hard
out of bed.” (See N.T. Trial, 2/26/19, at 46). Text messages between Mother
and Appellant also revealed that Appellant was drinking alcohol and smoking
marijuana that night. (Id. at 50).
On May 1, 2018, the Commonwealth charged Appellant with multiple
offenses related to Child’s injuries. Following trial, a jury convicted Appellant
on February 26, 2019, of three counts of aggravated assault, two counts of
simple assault, and one count each of EWOC and REAP. The court sentenced
Appellant on March 13, 2019, to an aggregate eight (8) to sixteen (16) years’
imprisonment. The next day, Appellant timely filed post-sentence motions
challenging the weight and sufficiency of the evidence. The court denied
Appellant’s post-sentence motions on July 17, 2019. Appellant filed a notice
of appeal on August 15, 2019.2 The court did not order, and Appellant did not
____________________________________________
2 The 120-day period for a decision on Appellant’s post-sentence motion
expired on July 12, 2019. Nevertheless, the clerk of courts failed to enter an
order deeming the motion denied on that date. See Pa.R.Crim.P.
720(B)(3)(a) (stating judge shall decide post-sentence motion within 120
days; if judge fails to decide motion within 120 days, or to grant extension,
-2-
J-S18020-20
file, a concise statement of errors complained of on appeal pursuant to
Pa.R.A.P. 1925(b).
Appellant raises the following issues for our review:
Did the Commonwealth fail to present sufficient evidence at
trial to prove beyond a reasonable doubt that Appellant was
responsible for the injuries to the victim?
Were the verdicts of guilty against the weight of the
evidence in that the Commonwealth failed to prove that
Appellant was responsible for the injuries to the victim?
(Appellant’s Brief at 4).
In his issues combined, Appellant argues the Commonwealth failed to
present sufficient evidence at trial to prove Appellant caused Child’s injuries.
Appellant avers the Commonwealth did not present any testimony that
Appellant admitted to causing Child’s injuries. Appellant asserts the testimony
at trial instead revealed that Mother was Child’s primary caretaker and was
usually home alone with Child during the day while Appellant was at work.
Appellant further avers the jury verdicts were against the weight of the
____________________________________________
motion shall be deemed denied by operation of law); Pa.R.Crim.P.
720(B)(3)(c) (stating when post-sentence motion is denied by operation of
law, clerk of courts shall enter order on behalf of court that post-sentence
motion is deemed denied). Instead, the trial court ruled on the motion on July
17, 2019, outside the 120-day period, and Appellant appealed within 30 days
of that order. Under these circumstances, a breakdown in the operations of
the court occurred, and we will consider Appellant’s appeal as timely filed.
See Commonwealth v. Patterson, 940 A.2d 493, 498-99 (Pa.Super. 2007),
appeal denied, 599 Pa. 691, 960 A.2d 838 (2008) (explaining that this Court
has held breakdown in court operations occurs when trial court clerk fails to
enter order deeming post-sentence motions denied by operation of law
pursuant to Pa.R.Crim.P. 720(B)(3)(c)).
-3-
J-S18020-20
evidence. Appellant contends Mother’s trial testimony revealed that Mother
was alone with Child on most days, Mother suffered from postpartum
depression, and Mother was frustrated that Appellant chose to nap rather than
help her take care of the children. Appellant concludes this Court should
vacate his convictions and/or remand for a new trial. We disagree.
Appellate review of a claim challenging the sufficiency of the evidence
is as follows:
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) (quoting
Commonwealth v. Bullick, 830 A.2d 998, 1000 (Pa.Super. 2003)).
The following principles apply to a weight of the evidence claim:
The weight of the evidence is exclusively for the finder
of fact who is free to believe all, part, or none of the
-4-
J-S18020-20
evidence and to determine the credibility of the
witnesses. An appellate court cannot substitute its
judgment for that of the finder of fact. Thus, we may
only reverse the…verdict if it is so contrary to the
evidence as to shock one’s sense of justice.
Commonwealth v. Small, 559 Pa. 423, [435,] 741 A.2d
666, 672-73 (1999). Moreover, where the trial court has
ruled on the weight claim below, an appellate court’s role is
not to consider the underlying question of whether the
verdict is against the weight of the evidence. Rather,
appellate review is limited to whether the trial court palpably
abused its discretion in ruling on the weight claim.
Commonwealth v. Champney, 574 Pa. 435, 444, 832 A.2d 403, 408
(2003), cert. denied, 542 U.S. 939, 124 S.Ct. 2906, 159 L.Ed.2d 816 (2004)
(most internal citations omitted).
The Pennsylvania Crimes Code defines aggravated assault in relevant
part as follows:
§ 2702. Aggravated Assault
(a) Offense defined.—A person is guilty of aggravated
assault if he:
* * *
(8) attempts to cause or intentionally, knowingly or
recklessly causes bodily injury to a child less than six years
of age, by a person 18 years of age or older; or
(9) attempts to cause or intentionally, knowingly or
recklessly causes serious bodily injury to a child less than
13 years of age, by a person 18 years of age or older.
18 Pa.C.S.A. § 2702(a)(8), (9). The Crimes Code defines simple assault in
relevant part as follows:
§ 2701. Simple Assault
-5-
J-S18020-20
(a) Offense defined.—Except as provided under section
2702 (relating to aggravated assault), a person is guilty of
assault if he:
(1) attempts to cause or intentionally, knowingly or
recklessly causes bodily injury to another;
* * *
18 Pa.C.S.A § 2701(a)(1). Section 2705 of the Crimes Code provides:
§ 2705. Recklessly endangering another person
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.A. § 2705.
As it pertains to these sections, “bodily injury” is defined as
“[i]mpairment of physical condition or substantial pain.” 18 Pa.C.S.A. § 2301.
“Serious bodily injury” is defined as “[b]odily injury which creates a substantial
risk of death or which causes serious, permanent disfigurement, or protracted
loss or impairment of the function of any bodily member or organ.” Id.
The Crimes Code defines the crime of EWOC in relevant part as follows:
§ 4304. Endangering welfare of children
(a) Offense defined.—
(1) 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,
commits an offense if he knowingly endangers the
welfare of the child by violating a duty of care,
protection or support.
* * *
-6-
J-S18020-20
18 Pa.C.S.A. § 4304(a)(1). The Commonwealth must prove the following to
sustain an EWOC conviction: (1) the accused was aware of his duty to protect
the child; (2) the accused was aware that the child was in circumstances that
could threaten the child’s physical or psychological welfare; and (3) the
accused has either failed to act or has taken action so lame or meager that
such actions cannot reasonably be expected to protect the child’s welfare.
Commonwealth v. Bryant, 57 A.3d 191, 197 (Pa.Super. 2012).
Instantly, in its opinion denying Appellant’s post-sentence motions
challenging the sufficiency and weight of the evidence, the trial court
reasoned:
Viewed in the light most favorable to the Commonwealth,
the evidence presented in this case established the
following:
[Child] was a five-month-old infant who was incapable
of injuring or caring for himself.
Prior to January 13, [Child] was a normal five-month[-
]old infant. Nothing medically significant was
reported about [Child] prior to January 13.
After January 13, [Child] did not act in a normal
fashion. He did not eat or respond in a normal
fashion. [Child]’s condition so concerned [Mother]
that a trip to the hospital was undertaken on January
15.
On January 13, [Child] was placed within the sole and
exclusive care of [Appellant].
Neither [Appellant] nor [Mother] identified any other
adults who could have inflicted harm upon [Child]
during the period between January 13, 2018 and
January 15, 2018.
-7-
J-S18020-20
[Child] suffered bruises that could not have been self-
inflicted due to his non-mobile state.
[Child] suffered bleeding on both sides of his brain.
This is a serious life-threatening condition.
[Child] also suffered hemorrhaging behind his eyes.
A qualified medical expert opined none of [Child]’s
injuries were of natural or self-inflicted origin.
[Appellant] and [Mother] were interviewed on multiple
occasions by multiple individuals. At no time did
either [Appellant] or [Mother] provide a legitimate
explanation for the injuries suffered by [Child].
A qualified medical expert opined that [Child]’s
injuries were inflicted by another human being and
that no possible accidental explanation existed for the
nature and extent of [Child]’s injuries.
In addition to the circumstantial evidence outlined above,
there is direct evidence in the form of [Appellant’s] own
admission that he grabbed [Child] roughly while “frustrated
and flustered.” This direct evidence further supports the
jury’s verdicts.
* * *
In the opinion of this [c]ourt, there is more than sufficient
circumstantial evidence to support all of the jury’s verdicts.
The circumstantial evidence is supplemented by additional
direct evidence in the form of partial admissions by
[Appellant]. Accordingly, this [c]ourt rejects [Appellant’s]
challenge to the sufficiency of the evidence presented.
Moreover, nothing about the weight of the above evidence
shocks the conscience of this [c]ourt. Accordingly,
[Appellant’s] appeal based upon weight and sufficiency of
evidence should be rejected.
(Trial Court Opinion, filed July 17, 2019, at 9-11). The record supports the
trial court’s analysis.
-8-
J-S18020-20
Here, Mother left Child with Appellant while she went to work on January
13, 2018. On January 14, 2018, Mother noticed Child was not eating or acting
normally. On January 15, 2018, Mother and Appellant took Child to the
emergency room, where doctors determined Child had suffered subdural and
retinal hemorrhages. Doctors also observed a bruise on Child’s leg. Child’s
doctor testified that these injuries were uncommon for a non-mobile five-
month-old child and were likely inflicted by another person. (See N.T. at 63-
83). Additionally, testimony revealed that Appellant told police that Child was
crying on the night in question, and Appellant pulled Child “hard out of bed.”
(Id. at 46). Thus, viewed in the light most favorable to the Commonwealth
as verdict-winner, the evidence was sufficient to enable the jury to find beyond
a reasonable doubt that Appellant caused the injuries to Child and was guilty
of the offenses. See Jones, supra. Likewise, we will not disturb the trial
court’s decision regarding Appellant’s weight of the evidence challenge. See
Champney, supra. Accordingly, we affirm.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 07/27/2020
-9-