Com. v. Bass, Q.

J-S42020-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
QUADIM BASS :
:
Appellant : No. 2344 EDA 2019

Appeal from Judgment of Sentence Entered March 15, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0009385-2017

BEFORE: PANELLA, P.J., OLSON, J., and MUSMANNO, J.

MEMORANDUM BY OLSON, J.: Filed: October 29, 2020

Appellant, Quadim Bass, appeals from the judgment of sentence entered

on March 15, 20191 following his jury trial convictions for third-degree murder

and endangering the welfare of a child.2 We affirm.

The trial court summarized the facts of this case as follows:

On July 14, 2017, at approximately 1:15 pm., Police Officers
Nikolas Shannon and Timothy Sedler responded to a radio call of
a person screaming at [a residence on] North 57th Street,
Philadelphia[, Pennsylvania]. When police arrived, they
encountered [Appellant] who identified himself as the father of the
victim, a two[-]year[-]old child. [Appellant] directed police to a
second floor apartment where they observed the victim laying
[sic] on the bedroom floor, naked and unconscious. [Appellant]
told police officers that the victim had fallen down the stairs.

____________________________________________

1 The judgment of sentence in this case was made final by the denial of
post-sentence motions on July 12, 2019.

2 18 Pa.C.S.A. §§ 2502(c) and 4304, respectively.
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[Appellant] also told police that he and the victim were the only
persons in their residence at the time of the emergency.

First, the police officers, and upon their arrival, the EMT personnel,
performed Cardio Pulmonary Resuscitation (CPR) on the
unconscious victim. During their efforts to resuscitate the victim,
both officers observed that [Appellant] vacillated back and forth
between extreme distresses with loud outbursts to a perfectly
calm demeanor. After the first responders failed to resuscitate
the victim, the child was transported to Children's Hospital of
Philadelphia (CHOP), where he was pronounced dead at
approximately 2:16 [p.]m. The mother of the victim arrived at the
hospital after the child was pronounced dead, and was observed
arguing with and physically striking [Appellant]. On July 15, 2017,
a post mortem examination was performed and the medical
examiner ruled the cause of death to be blunt force trauma, and
the manner of death to be homicide. At trial, Dr. Sam Gulino,
Chief Medical Examiner, testified for the Commonwealth and
offered the above opinions to a reasonable degree of medical
certainty.

In contrast to [Appellant’s] statement that the child was injured
in a fall, Dr. Gulino opined that the injuries to the victim were not
consistent with falling down stairs, nor were they consistent with
medical interventions such as CPR. Instead, Dr. Gulino concluded
with a reasonable degree of medical certainty that the child's
death was caused by blunt force traumas such as punching,
kicking, stomping, or other similar type of crushing force to the
body administered by another person.

Further, the child's aunt [] testified that [Appellant] had a history
of physically abusing the victim and his mother [] prior to July 14,
2017.

Trial Court Opinion, 10/29/2019, at 2-3 (record citations omitted).

On January 10, 2019, a jury convicted Appellant of third-degree murder

and endangering the welfare of a child. The trial court ordered a presentence

investigation report and mental health evaluation. On March 15, 2019, the

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trial court sentenced Appellant to an aggregate term of 20 to 40 years of

imprisonment. This timely appeal resulted.3

On appeal, Appellant presents the following issues for our review:

1. Was the evidence insufficient to convict Appellant of
[third-degree murder], as there was insufficient evidence to
prove beyond a reasonable doubt that Appellant caused the
death of the victim?

2. Was the evidence insufficient to convict Appellant of
[e]ndangering the [w]elfare of a [c]hild, as there was
insufficient evidence to prove beyond a reasonable doubt that
Appellant endangered the welfare of the victim?

3. Did the [t]rial [c]ourt err by granting the Commonwealth's
[Pa.R.Crim.P.] 404(b) [m]otion permitting the Commonwealth
to introduce "other acts" evidence of violence allegedly
committed by [] Appellant?

Appellant’s Brief at 3.

Appellant’s first two issues are inter-related, so we will examine them

together.4 Appellant claims that the Commonwealth failed to prove that

Appellant was the perpetrator. He argues that “there was no direct evidence

that Appellant committed these crimes” and “the Commonwealth failed to

____________________________________________

3 Appellant filed a timely post-sentence motion seeking reconsideration of his
sentence and arrest of judgment on March 22, 2019. The trial court denied
relief by order entered on July 12, 2019. On August 9, 2019, Appellant filed
a notice of appeal. On August 13, 2019, the trial court directed Appellant to
file a statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(b). Appellant complied timely on September 3, 2019. The trial court
issued an opinion pursuant to Pa.R.A.P. 1925(a) on October 29, 2019.

4 Appellant even addresses both claims in his appellate brief “jointly since
the arguments for each count are identical.” Appellant’s Brief at 13 n.1.

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show that Appellant was alone at the time the offenses occurred.” Id. at 12.

In sum, Appellant maintains:

There is no specific time in evidence when the child's mother left
the home, nor was she asked if she was [sic] aware if anyone else
was with Appellant and child that morning. The Commonwealth
presented no other evidence to show that Appellant was the only
individual who had contact with the child that day, other than the
evidence that he was in the home alone with the child when the
police arrived. While the Commonwealth is permitted to prove its
case with circumstantial evidence, the jury is not permitted to
guess or speculate. Without any definitive evidence that Appellant
was alone with the child when the injuries occurred, the evidence
cannot be sufficient to [Appellant’s] sustain convictions[.]

Id. at 17-18.

We adhere to the following standards:

The standard we apply when 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 trier 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. Furthermore,
when reviewing a sufficiency claim, our Court is required to give
the prosecution the benefit of all reasonable inferences to be
drawn from the evidence.

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However, the inferences must flow from facts and
circumstances proven in the record, and must be of such
volume and quality as to overcome the presumption of
innocence and satisfy the jury of an accused's guilt beyond
a reasonable doubt. The trier of fact cannot base a
conviction on conjecture and speculation and a verdict which
is premised on suspicion will fail even under the limited
scrutiny of appellate review.

Commonwealth v. Slocum, 86 A.3d 272, 275–276 (Pa. Super. 2014)

(citation omitted).

Moreover,

[i]n addition to proving the statutory elements of the crimes
charged beyond a reasonable doubt, the Commonwealth must
also establish the identity of the defendant as the perpetrator of
the crimes. Commonwealth v. Brooks, 7 A.3d 852, 857 (Pa.
Super. 2010). “Evidence of identification need not be positive and
certain to sustain a conviction.” Commonwealth v. Orr, 38 A.3d
868, 874 (Pa. Super. 2011) (en banc) (citation omitted).

Our Supreme Court has stated that “any indefiniteness and
uncertainty in the identification testimony goes to its weight.
Direct evidence of identity is, of course, not necessary and a
defendant may be convicted solely on circumstantial evidence.”
Commonwealth v. Hickman, 453 Pa. 427, 309 A.2d 564, 566
(1973) (citations omitted).

Commonwealth v. Strafford, 194 A.3d 168, 175–176 (Pa. Super. 2018).

Furthermore, our Supreme Court has previously determined that

“[w]here [] an adult has sole custody of a child for a period of time, and,

during that time the child suffers wounds which unquestionably are neither

self-inflicted nor accidental, the evidence is sufficient to allow a jury to infer

that the adult inflicted the wounds.” Commonwealth v. Paquette, 301

A.2d 837, 840 (Pa. 1973). More specifically, in Paquette, our Supreme Court

noted:

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There was a dispute between the version [offered by Paquette’s’]
defense and that of the Commonwealth as to whether or not the
child had bruised tissue at the time she was delivered into the
custody of [Paquette]. Admittedly, the Commonwealth's evidence
to support its position that all of the bruising occurred during the
time the child was under his exclusive care was weak. [Our
Supreme Court found,] however, [that] the medical evidence,
offered by the Commonwealth [in that case], clearly establishe[d]
repeated and severe blows to the infant as being the origin of the
factors causing death. Such a finding [wa]s completely
incompatible with the defense's theory that the injuries were
either sustained by a fall from the couch to the floor or an epileptic
fit while the child was in the bath. Considering the number of
bruises, their severity and their positioning about the head and
the face, the fact-finder was justified in rejecting the possibility of
accidental or self-inflicted injury particularly when recognizing the
mobility of a 6 [and] 1/2 month old baby.

Paquette, 301 A.2d at 839–840.

Here, on Appellant’s sufficiency claims, the trial court determined:

Dr. Sam Gulino testified that the cause of death was blunt force
trauma, and the manner of death was homicide. Further, he
testified that it was a near impossibility for the child's injuries to
have been caused by falling down a flight of stairs. Specifically,
Dr. Gulino testified that the victim suffered no injury on or around
his head, which would be expected when a child of similar age and
physical development falls down a flight of stairs. In addition, Dr.
Gulino pointed out that the extent of injuries the victim suffered
in the last few hours of his life could not possibly have been caused
by falling down a flight of stairs or the performance of CPR.
Additionally, both Officer Nikolas Shannon and EMT Jermel Bowen,
the men who performed CPR on the victim, had been trained to
perform CPR properly.

Second, the police officers testified that only [Appellant] and the
unconscious victim were on the scene upon their arrival. Indeed,
it was [Appellant] who called 911 to alert the police to the
emergency in this case. Therefore, the Commonwealth has
proven beyond a reasonable doubt that [Appellant] was
responsible for the injuries that caused the death of the victim.

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Trial Court Opinion, 10/29/2019, at 5-6 (record citations omitted).

Upon review, we agree that there was sufficient evidence establishing

Appellant was the perpetrator, because the Commonwealth established

Appellant was alone with the victim at the time of the crimes. Initially, we

note that Appellant does not challenge Dr. Gulino’s testimony that the victim’s

death was not accidental but, rather, a killing by blunt force trauma. See

Appellant’s Brief at 13 (“The scientific evidence presented by the forensic

pathologist certainly indicated that the child died as a result of blunt force

trauma, but shed no light on who perpetrated these offenses.”). Regardless,

similar to Paquette, here, the Commonwealth presented forensic evidence

that the victim’s severe and fatal injuries were neither self-inflicted nor the

result of an accident from failing down stairs.

Moreover, viewing the evidence in the light most favorable to the

Commonwealth, as our standard requires, there was sufficient evidence

proving that the victim was in Appellant’s sole custody at the time of the

crimes. The victim’s mother testified that on the morning of the crimes, she

left the victim alone in the residence with Appellant. See N.T., 1/9/2019, at

28-29; 36; see also N.T., 1/8/2019, at 220-225 (testimony that when the

victim’s mother saw the victim’s body, she exclaimed that she should not have

left the victim alone with Appellant when he was mad). When the victim’s

mother left the house, the victim was alive and uninjured. N.T., 1/9/2019, at

38. Appellant told police that the victim fell down the stairs and vomited on

himself. N.T., 1/8/2019, at 71. Appellant also claimed that he bathed the

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victim before calling 911. Id. Appellant was still talking to the 911 operator

when the police arrived. Id. at 102-104. Finally, when the police arrived,

Appellant told them that he was the only adult present in the residence and

the police did not see anyone else. Id. at 105-106. Based upon all of the

foregoing, there is simply no evidence that anyone else was present. Likewise,

there is no record evidence that anyone else came to the residence before, or

while, the crimes occurred or before the police arrived. Viewing all of the

evidence together, the record clearly shows that the victim was in Appellant’s

sole custody at the time of the crimes and, thus, we conclude that the

Commonwealth provided sufficient evidence to identify Appellant as the

perpetrator.

Next, Appellant claims that the trial court erred by permitting the

Commonwealth to present evidence of prior acts pursuant to Pa.R.E. 404(b).

More specifically, Appellant challenges the trial court’s decision to allow the

Commonwealth to present the following evidence at trial: (1) testimony from

the victim’s grandmother that she saw bruises on the child in 2015 that

Appellant claimed resulted from a fall; and (2) testimony and photographic

evidence from the victim’s maternal aunt that, in 2016, Appellant struck the

victim and left bruises and, in another incident, Appellant engaged in a

physical altercation with the victim’s mother and hit her head against the wall,

causing bruises. Appellant’s Brief at 19. Appellant claims the admission of

this evidence was erroneous for the following reasons:

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[T]he Commonwealth, through its forensic pathologist, introduced
graphic photographic evidence of the child victim and medical
testimony that the child suffered terrible wounds such as visible
bruising on the arms, chest and abdomen, potential bite marks on
his abdomen and leg, a broken left tenth rib, deep internal
bleeding, a lacerated and pulpified liver, and bruised and bloodied
kidneys and pancreas. The pathologist was asked if the damage
to the victim's liver could have been caused by a single punch,
and he replied “It is possible. It would have to be a tremendously
powerful punch because the amount of energy required to cause
that much disruption of the liver could be delivered over multiple
blows but it could also be over one much larger blow." It is
completely illogical with the admissible medical and photographic
evidence available that the Commonwealth “needed” the “other
acts” evidence presented to be able to show malice with regards
to this case. It begs credulity to claim that because Appellant had
allegedly committed acts of violence against his wife and son,
none of which were anywhere near as significant as what
happened to this victim, that those acts tended to prove and were
necessary to prove that he killed the victim with malice. The only
purpose for seeking to introduce this evidence was to show that
Appellant was a violent person: that he was allegedly violent in a
significantly less serious manner with his wife and son previously,
therefore he must have killed the victim here. This is propensity
evidence which is absolutely inadmissible.

Id. at 20-21 (record citation omitted). Hence, Appellant claims “[t]he only

similarity between these other acts and the crimes charged was that Appellant

was the alleged perpetrator.” Id. at 23. Appellant further contends that the

trial court never stated which exception under Pa.R.E. 404(b) applied to this

matter. Id. at 18-23.

This Court has previously determined:

The admissibility of evidence is a matter for the discretion of the
trial court and a ruling thereon will be reversed on appeal only
upon a showing that the trial court committed an abuse of
discretion. An abuse of discretion may not be found merely
because an appellate court might have reached a different
conclusion, but requires a result of manifest unreasonableness, or

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partiality, prejudice, bias, or ill-will, or such lack of support so as
to be clearly erroneous.

* * *

Pennsylvania Rule of Evidence 404(b), pertaining to prior bad acts
evidence, provides, in pertinent part:

* * *

(b) Crimes, Wrongs or Other Acts.

(1) Prohibited Uses. Evidence of a crime, wrong, or other
act is not admissible to prove a person's character in order
to show that on a particular occasion the person acted in
accordance with the character.

(2) Permitted Uses. This evidence may be admissible for
another purpose, such as proving motive, opportunity,
intent, preparation, plan, knowledge, identity, absence of
mistake, or lack of accident. In a criminal case this evidence
is admissible only if the probative value of the evidence
outweighs its potential for unfair prejudice.

(3) Notice in a Criminal Case. In a criminal case the
prosecutor must provide reasonable notice in advance of
trial, or during trial if the court excuses pretrial notice on
good cause shown, of the general nature of any such
evidence the prosecutor intends to introduce at trial.

Pa.R.E. 404(b).

This Court [has] determined:

Evidence of a defendant's distinct crimes are not generally
admissible against a defendant solely to show his bad
character or his propensity for committing criminal acts, as
proof of the commission of one offense is not generally proof
of the commission of another. However, this general
proscription against admission of a defendant's distinct bad
acts is subject to numerous exceptions if the evidence is
relevant for some legitimate evidentiary reason and not
merely to prejudice the defendant by showing him to be a
person of bad character.

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Exceptions that have been recognized as legitimate bases
for admitting evidence of a defendant's distinct crimes
include, but are not limited to:

(1) motive; (2) intent; (3) absence of mistake or accident;
(4) a common scheme, plan or design such that proof of one
crime naturally tends to prove the others; (5) to establish
the identity of the accused where there is such a logical
connection between the crimes that proof of one will
naturally tend to show that the accused is the person who
committed the other; (6) to impeach the credibility of a
defendant who testifies in his trial; (7) situations where
defendant's prior criminal history had been used by him to
threaten or intimidate the victim; (8) situations where the
distinct crimes were part of a chain or sequence of events
which formed the history of the case and were part of its
natural development (sometimes called “res gestae”
exception).

Additional exceptions are recognized when the probative value of
the evidence outweighs the potential prejudice to the trier of fact.

[…The] admission of distinct crimes may be proper where it is part
of the history or natural development of the case, i.e., the res
gestae exception. […The] res gestae exception to the general
proscription against evidence of other crimes, is also known as the
complete story rationale, i.e., evidence of other criminal acts is
admissible to complete the story of the crime on trial by proving
its immediate context of happenings near in time and place.

Where the res gestae exception is applicable, the trial court must
balance the probative value of such evidence against its prejudicial
impact. In conducting this balancing test,

courts must consider factors such as the strength of the
other crimes evidence, the similarities between the crimes,
the time lapse between crimes, the need for the other
crimes evidence, the efficacy of alternative proof of the
charged crime, and the degree to which the evidence
probably will rouse the jury to overmastering hostility.

Commonwealth v. Yocolano, 169 A.3d 47, 53-55 (Pa. Super. 2017)

(internal case citations omitted) (emphasis in original).

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In this case, the trial court balanced the strength of the 'other crimes'

evidence, the similarities between the crimes, the time lapse between the

crimes, the need for the other crimes evidence, the efficacy of alternative

proof of the charged crime, and the degree to which the evidence would rouse

the jury to overmastering hostility. See Trial Court Opinion, 10/29/2019, at

10-11. It determined that the other acts evidence introduced by the

Commonwealth “proved motive, intent, common scheme and plan, as well as

absence of mistake or accident in the death of the child.” Id. at 11. The trial

court also determined that the evidence “was part of a chain or sequence of

events that formed the history of the case and were part of its natural

development.” Id.

Upon review, we agree. Initially, we reject Appellant’s argument that

the prior acts were not similar because they were not “nearly as significant as

what happened to this victim.” Appellant’s contention suggests that only other

prior acts that resulted in death would be admissible against him. Appellant

does not cite any law, and our independent research has not revealed any, to

support that proposition. Additionally, we conclude that the prior acts

introduced at trial, Appellant striking and bruising the victim and the victim’s

mother on previous occasions and close in time to the crimes charged, were

similar. Moreover, Appellant claimed that the victim died as the result of an

accident. Therefore, the trial court properly admitted the other acts evidence

to permit the Commonwealth to show an absence of mistake or accident.

Further, we agree with the trial court that the evidence was part of the res

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gestae of this case. The Commonwealth was permitted to show a history of

escalating physical abuse as part of the natural development of this case. We

discern no abuse of discretion or error of law in admitting the Rule 404(b)

evidence in this matter.

Finally, the trial court instructed the jury that it allowed the admission

of the above-mentioned evidence for a limited purpose under the res gestae

exception to Pa.R.E. 404(b). See N.T., 1/9/2019, at 168-169. “It is

well- settled that the jury is presumed to follow the trial court's instructions.”

Commonwealth v. Cash, 137 A.3d 1262, 1280 (Pa. 2016). Accordingly,

Appellant is not entitled to relief on his final claim.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/29/20

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