J-S18011-16



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                          Appellee

                     v.

JUSTIN LAMONT THOMPSON,

                          Appellant                  No. 534 MDA 2015


          Appeal from the Judgment of Sentence February 24, 2015
            In the Court of Common Pleas of Cumberland County
                         Criminal Division at No(s):
                          CP-21-CR-0003532-2011


BEFORE: BOWES, LAZARUS AND STRASSBURGER,* JJ.

MEMORANDUM BY BOWES, J.:                             FILED APRIL 01, 2016

       Justin Lamont Thompson appeals from the judgment of sentence of

200 to 480 months incarceration, which was imposed following his conviction

of third-degree murder, aggravated assault, endangering the welfare of

children, and recklessly endangering another person (“REAP”). We affirm.

       The facts as gleaned from the trial transcript are as follows. At 7:21

a.m. on September 1, 2011, Appellant dialed 911 and reported to the

dispatcher that his infant daughter was not breathing.     Paramedics were

dispatched to Appellant’s South Middleton Township home, where they

immediately initiated life-saving emergency treatment and transported the

infant. Despite their efforts, the infant had no pulse and was incapable of


*
    Retired Senior Judge assigned to the Superior Court.
J-S18011-16



breathing on her own when they arrived at the hospital. The five-week-old

infant was pronounced dead at 8:04 a.m.

       The attending physician, Katarzyna Ferraro, M.D., noted the infant had

bruises around both eyes and that the soft spot on the baby’s head was

distended and firm, which suggested swelling of the brain. Hemorrhaging of

the retinas of the eyes was consistent with significant head trauma.

       Pennsylvania State Police Corporal Bryan Henneman conducted a

recorded interview of Appellant at the hospital that morning. According to

Appellant, the infant went to sleep around midnight, but awoke around 3

a.m.     Appellant told the trooper that he did not notice anything unusual

about the baby. After a bottle and a diaper change, the infant went back to

sleep. At 7:00 a.m., when his older daughter woke him up, Appellant said

he noticed the baby was not breathing.

       An autopsy revealed bruising to the left side of the scalp and bleeding

beneath the parietal bones, bruises to the back and buttocks, bleeding

around the brain and into the retina and optic nerves, bleeding around the

covering of the spinal cord, and injury or tearing of the wiring of the brain.

N.T., Jury Trial Vol. IV, 2/5/15, at 66-67. The infant sustained blunt force

trauma injuries either from her head striking something, something striking

the head, or a violent motion applied to her head such as shaking. Id. at

74-75.




                                     -2-
J-S18011-16



      Upon receipt of the autopsy results, State Police interviewed Appellant

a second time at the barracks. Initially, Appellant repeated his denial that

anything strange or unusual had occurred.        After being confronted with

evidence from the autopsy that the baby was shaken to death while in his

care, Appellant broke down and admitted that he shook the baby “maybe

one time” for “maybe three to five seconds.” N.T. Jury Trial Vol. III, 2/4/15,

at 25.   He acknowledged that it “hurt” knowing that it was his fault.        Id.

Appellant penned a letter admitting that he shook the baby and apologizing

for causing her injury and death. The letter was read at trial to the jury.

      At trial, Dr. Ferraro opined that forceful shaking of the infant for three

to five seconds could have caused these injuries. Dr. Daniel Brown, a board-

certified neuropathologist, testified that the diffuse axonal injury and spinal

cord injury occurred at either 3:00 a.m. or 7:00 a.m., and that this case was

one of the most severe that he had seen. N.T. Jury Trial Vol. IV, 2/5/15, at

40.   He opined that such injuries would not occur with normal care and

handling of an infant.

      Dr. Samuel Land, a board-certified forensic pathologist, testified that

all of the injuries, except the bruise on the side of the infant’s head, could

have been caused by violent shaking.       The bruise was consistent with the

side of the head striking something soft, like the bed.      He opined further

that, it was “highly unlikely, nearly impossible” that the infant could have

caused the injuries to herself, and there was no evidence of underlying

                                     -3-
J-S18011-16



disease.   Id. at 76.   He concluded the manner of death was blunt force

trauma to the head and the manner of death was homicide. Id. at 79.

      The infant’s mother, Camillah Johnson, testified that, when the child

was born, she and Appellant watched a video at the hospital on shaken baby

syndrome.     They signed a paper confirming that they had viewed the

required video and the certification was admitted into evidence.           The

Commonwealth was permitted to show the video to the jury over the

defense’s objection that it was irrelevant.     Six black and white closely-

cropped autopsy photographs that were utilized by the medical experts to

explain the infant’s injuries were also admitted over a defense objection that

they were “unduly inflammatory.” N.T. Jury Trial Vol. IV, 2/5/15, at 5.

      Appellant testified at trial and denied shaking the baby.             He

maintained that he fell while holding the baby after tripping on the tubing

that connected him to his dialysis machine. He specifically recollected that

the only lamp in the room fell and no longer worked thereafter, a claim that

the Commonwealth undermined on cross-examination when it showed

Appellant a photograph depicting the working light. Appellant told the jury

that he wrote the apology as it was his fault that he tripped and fell with the

baby, not that he shook her.         The Commonwealth utilized his prior

inconsistent statement to impeach his testimony.

      The jury returned a guilty verdict on the aforementioned charges.

Following sentencing, Appellant appealed to this Court.     He complied with

                                     -4-
J-S18011-16



the trial court’s order to file a Pa.R.A.P. 1925(b) concise statement of errors

complained of on appeal, and the trial court authored its opinion. Appellant

presents three issues for our review:

      I.     Was the evidence sufficient to ensure a conviction beyond
             a reasonable doubt if one were to preclude the highly
             inflammatory and prejudicial evidence introduced by the
             Commonwealth?

      II.    Did the court err when it admitted into evidence a video on
             the dangers of shaking a baby to the jury?

      III.   Did the court err when it admitted into evidence graphic
             autopsy photographs of the decedent and showed those
             photographs to the jury?

Appellant’s brief at 7.

      Appellant alleges first that the evidence was insufficient to sustain the

convictions. In reviewing a challenge to the sufficiency of the evidence, we

examine the entire record and view the evidence and all reasonable

inferences derived therefrom in a light most favorable to the Commonwealth

as the verdict winner.     Commonwealth v. Watley, 81 A.3d 108, 113

(Pa.Super. 2013) (en banc).         The Commonwealth’s burden may be

established by circumstantial evidence and any doubt about the defendant’s

guilt is to be resolved by the factfinder unless the evidence is so weak and

inconclusive that, as a matter of law, no probability of fact can be drawn.

Commonwealth v. Olsen, 82 A.3d 1041, 1050 (Pa.Super. 2013). Where

the issue involves a question of law, “our standard of review is de novo and




                                     -5-
J-S18011-16



our scope of review is plenary.” Commonwealth v. Henkel, 90 A.3d 16,

20 (Pa.Super. 2014) (en banc).

      We note preliminarily that Appellant’s statement of the first issue

reveals a misunderstanding of our scope and standard of review.                 In

reviewing a sufficiency claim, we examine all of the evidence admitted, even

improperly admitted evidence. Watley, supra at 113. We do not review a

diminished record in evaluating a challenge to the sufficiency of the evidence

claim.   See Commonwealth v. Palmer, 751 A.2d 223, 227 (Pa.Super.

2000) (holding that “we are required to consider all evidence that was

actually received, without consideration as to the admissibility of that

evidence or whether the trial court's evidentiary rulings were correct.”).

      In support of his claim, Appellant argues that while Dr. Ferraro

admitted on the stand that shaking of the baby was a possible cause of the

decedent’s injuries and death, she also stated that there were other

possibilities for the source of the injuries. N.T. Jury Trial, Vol. III, 2/4/15, at

44. Appellant contends that, since the evidence cannot conclusively point to

cause of the injuries, the evidence is legally insufficient.

      The Commonwealth counters that Appellant’s sufficiency claim is

waived twice over: once for failure to develop his arguments; once due to

his failure to identify which element of the charges was not proven. It points

out that Appellant’s entire argument consists of two paragraphs, the first of

which is the standard of review and the other an argument misrepresenting

                                       -6-
J-S18011-16



Dr. Ferraro’s testimony. The Commonwealth contends that Appellant failed

to develop his argument or cite to any authorities to support it as required

by Pa.R.A.P. 2119(a). See also Commonwealth v. Walter, 966 A.2d 560

(Pa. 2009). Nor did he identify in his Rule 1925(b) statement or in his brief

what elements of the offenses were not proven as required in a sufficiency

challenge. Commonwealth v. Gibbs, 981 A.2d 274 (Pa.Super. 2009) (Rule

1925(b) statement must specify what elements were insufficiently proven in

order to preserve a sufficiency issue for appeal).

      Assuming that Appellant is challenging the mechanism of the baby’s

fatal injury, the Commonwealth contends that the evidence is more than

sufficient to support Appellant’s third-degree murder conviction.     Appellant

was the only adult in the home during the relevant time and solely

responsible for the infant’s care. The fatal injuries occurred on his watch.

The record contained substantial evidence that the infant sustained blunt

force trauma to the head and that this was the cause of her death.         Dr.

Ferraro testified that the injuries were consistent with a forceful shaking.

Both Dr. Land and Dr. Brown agreed. Dr. Brown also testified that the injury

could have been caused by the child being thrown and striking a hard object.

In any event, the injuries were consistent with significant trauma.

      Appellant’s characterization of Dr. Ferraro’s testimony is misleading

and inaccurate.   Furthermore, our review of the record confirms that both

Dr. Land and Dr. Brown testified that the autopsy results were consistent

                                     -7-
J-S18011-16



with a shaken baby and significant trauma. The infant sustained whiplash-

like injuries, the stems of her eyes were torn from her skull, and the CT scan

revealed severe brain swelling and hemorrhaging. Appellant admitted that

he shook his infant daughter and expressed remorse that his shaking caused

her death.     This admission, coupled with evidence that Appellant was

informed of the dangers of shaking an infant, is sufficient to supply evidence

of the state of mind necessary to support a third-degree murder conviction.

Viewing the evidence in the light most favorable to the Commonwealth, as

we must, the jury had more than enough evidence to convict Appellant of

third-degree murder and the other charges.

      Appellant’s second and third issues are challenges to the trial court’s

evidentiary rulings.   Initially, we observe, "It is well-established that the

admissibility of evidence is within the discretion of the trial court, and such

rulings will not form the basis for appellate relief absent an abuse of

discretion."   Commonwealth v. Hoover, 107 A.3d 723, 729 (Pa. 2014).

“An abuse of discretion will not be found based on a mere error of judgment,

but rather occurs where the court has reached a conclusion that overrides or

misapplies the law, or where the judgment exercised is manifestly

unreasonable, or the result of partiality, prejudice, bias or ill-will.”

Commonwealth v. Davido, 106 A.3d 611, 645 (Pa. 2014). Additionally, if




                                     -8-
J-S18011-16



the error is harmless, a new trial is not required.      Commonwealth v.

Romero, 938 A.2d 362 (Pa. 2007).1

       First, Appellant alleges that the trial court erred in permitting the

Commonwealth to play the videotape about shaken baby syndrome that

Appellant viewed in the hospital when his infant daughter was born.         He

argues that, since the decedent’s mother testified that she and Appellant

saw the videotape and the form acknowledging same was admitted into

evidence, the video was irrelevant. He objected at trial solely on the basis of

relevance, and on appeal cites Commonwealth v. Spiewak, 617 A.2d 696,

699 (Pa. 1992), for the proposition that “Evidence is relevant if it logically

tends to establish a material fact in the case, tends to make a fact more or

less probable, or supports a reasonable inference of presumption regarding

the existence of a material fact.” Appellant argues in the alternative, that

such evidence, if relevant, was unduly prejudicial and would tend to suggest



____________________________________________


1
  In Commonwealth v. Foy, 612 A.2d 1349 (Pa. 1992), our Supreme Court
held that, “Error is considered to be harmless where: (1) the error did not
prejudice the defendant or the prejudice was de minimis; or (2) the
erroneously admitted evidence was merely cumulative of other, untainted
evidence which was substantially similar to the erroneously admitted
evidence; or (3) the properly admitted and uncontradicted evidence of guilt
was so overwhelming and the prejudicial effect of the error was so
insignificant by comparison that the error could not have contributed to the
verdict.”




                                           -9-
J-S18011-16



a verdict upon an improper basis.     See Pa.R.E. 403; Commonwealth v.

Owens, 929 A.2d 1187 (Pa.Super. 2007).

        The Commonwealth again argues waiver based upon Appellant’s

failure to develop his arguments in his brief.          In the alternative, the

Commonwealth      contends   the   issue     is   meritless   as   the   videotape

“unequivocally showed the defendant was aware of the risks of shaking a

baby,” an issue relevant to all of the charges. Commonwealth’s brief at 22.

Such proof was relevant to show that Appellant acted with the state of mind

necessary for third-degree murder, i.e., that he acted with malice but

without the specific intent to kill. It was also probative as it tended to show

that he acted knowingly or recklessly for purposes of aggravated assault, the

knowing element of endangering the welfare, and the reckless element of

REAP.

        We reject the Commonwealth’s waiver argument but agree that the

videotape was highly probative.     As we reiterated in Commonwealth v.

Dunphy, 20 A.3d 1215, 1219 (Pa.Super. 2011), murder in the third degree

is an unlawful killing with malice but without the specific intent to kill. See

18 Pa.C.S. § 2502(c).    Malice is a "wickedness of disposition, hardness of

heart, cruelty, recklessness of consequences, and a mind regardless of social

duty, although a particular person may not be intended to be injured” and

may be inferred from the totality of the circumstances. Dunphy, supra at

1220.

                                    - 10 -
J-S18011-16



       Unless the jury viewed the videotape, it could not determine what

Appellant was told and thus knew about the dangers of shaking a baby. The

video was highly probative of Appellant’s knowledge and state of mind when

he shook the child. We note further that Appellant did not object at trial that

the videotape was more prejudicial than probative, and thus inadmissible.

Hence, that argument is not preserved for appellate review.              Nonetheless,

we find the argument unavailing.               There is nothing to suggest that the

informational and instructional video was inflammatory or that it unfairly

prejudiced the jury against Appellant. We find no abuse of discretion on the

part of the trial court in admitting this highly probative evidence.

       Finally, Appellant contends that the trial court abused its discretion in

admitting    six   black    and    white       autopsy   photographs   used     by   the

Commonwealth’s expert to illustrate the infant’s injuries.             He relies upon

Pa.R.E. 4032 in support of his contention that photographs illustrating the

“infant’s brain with blood pooling would inflame any reasonable person

beyond the point of considering the law.” Appellant’s brief at 18.


____________________________________________


2
  Pa.R.E. 403, entitled “Excluding Relevant Evidence                   for    Prejudice,
Confusion, Waste of Time, or Other Reasons” provides:

      The court may exclude relevant evidence if its probative value is
      outweighed by a danger of one or more of the following: unfair
      prejudice, confusing the issues, misleading the jury, undue delay,
      wasting time, or needlessly presenting cumulative evidence.



                                           - 11 -
J-S18011-16



       The Commonwealth counters that the court minimized any unfair

prejudice by permitting it to use only six photographs and requiring that

they be converted to black and white and closely cropped to depict only the

injuries.   Furthermore, such photographs were not cumulative merely

because the medical experts testified to the nature of the injuries.            See

Commonwealth v. Woodard, 2015 Pa. LEXIS 2786 (Pa. 2015) (citing

Commonwealth v. Watkins, 108 A.3d 692 (Pa. 2014). The photographs

were    demonstrative    evidence   of   the   injuries   testified   to   by   the

Commonwealth’s medical experts.

       Our High Court held in Commonwealth v. Murray, 83 A.3d 137, 156

(Pa. 2013), that when the Commonwealth proffers photographs of a

homicide victim, the trial court must engage in a two-part analysis. First,

the    trial court must examine      whether    the   particular   photograph is

inflammatory. If it is not, it is admissible if relevant and of assistance to the

jury. Id. If the photograph is inflammatory, the trial court must weigh its

evidentiary value against the likelihood that it will inflame a jury’s passions.

       In Woodard, supra, our High Court found no abuse of discretion in

the admission of color autopsy photographs of a child, which were utilized by

a forensic pathologist at trial, to explain the fatal injuries. The Court found

the photographs essential in proving the requisite intent for first-degree

murder as they tended to refute the defense theory that the injuries resulted

from an accidental fall.      Furthermore, it rejected the claim that the

                                     - 12 -
J-S18011-16



photographs were cumulative of the pathologist’s testimony describing the

injuries.

      Herein, the trial court examined the photographs and rejected those it

found too gruesome. Six photographs depicting the injuries were converted

to black and white before they were shown to the jury.        The photographs

also were cropped to remove any indication that the brain or other body part

depicted belonged to an infant. The trial court made the images “sanitary”

before permitting their use.

      The trial court herein effectively eliminated the risk of unfair prejudice

by requiring the cropping of the photographs and their conversion to black

and white.     We have viewed the photographs and do not find them

inflammatory. Furthermore, as in Woodard, supra, the photographs were

essential in proving that the infant’s death was a homicide rather than an

accident.    Moreover, they were not cumulative of expert testimony as

“[p]hotographic evidence of the victim’s injuries is not rendered duplicative

merely because a medical examiner or other comparable expert witness has

conveyed to the jury, in appropriate clinical language, the nature of the

victim’s injuries and the cause of death.” Commonwealth v. Pruitt, 951

A.2d 307, 319 (Pa. 2008). We find no abuse of discretion in the admission

of the photographs.

      Judgment of sentence affirmed.




                                    - 13 -
J-S18011-16



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/1/2016




                          - 14 -
