J-S20023-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    MICHELE RENAE HUNTER                       :
                                               :
                       Appellant               :   No. 1489 MDA 2017

             Appeal from the Judgment of Sentence April 24, 2017
               In the Court of Common Pleas of Franklin County
             Criminal Division at No(s): CP-28-CR-0002417-2014


BEFORE: GANTMAN, P.J., OTT, J., and KUNSELMAN, J.

MEMORANDUM BY OTT, J.:                             FILED SEPTEMBER 07, 2018

       Michele Renae Hunter appeals from the judgment of sentence imposed

on April 24, 2017, in the Court of Common Pleas of Franklin County, following

her conviction by jury of the third-degree murder of her four-year-old stepson,

B.T. Hunter was sentenced to a term of 240-480 months’ incarceration, with

credit for time served.1 In this timely appeal, Hunter raises four issues.

Specifically, she claims: 1) the trial court erred in charging the jurors they

could consider all Hunter’s actions between the time of the assault and the

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1 Regarding the assault that eventually claimed B.T.’s life: The assault took
place in March 2011, and rendered B.T. comatose; he was kept alive by the
use of a ventilator. Hunter was tried and convicted of aggravated assault and
related charges in 2014. She received an aggregate term of 108 to 240
months’ incarceration. B.T. was adopted in 2012; he remained in the care of
his adopted parents until he died, because of the assault, in 2014, shortly
after Hunter was convicted in the first trial. Hunter was subsequently charged
with third-degree murder, resulting in the conviction now on appeal. The jury
in the instant trial was unaware of Hunter’s prior conviction.
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time B.T. went into cardiac arrest 36 hours later in determining malice, 2)

there was insufficient evidence to support the conviction, 3) the trial court

erred in denying Hunter’s post-trial motion to set aside the verdict as against

the weight of the evidence, and 4) the trial court erred in denying Hunter’s

pre-trial motion to suppress evidence.           After a thorough review of the

submissions by the parties, relevant law, and the certified record, we affirm.

       The parties to this matter must be well acquainted with the factual

history. We direct attention to the trial court’s opinion, dated November 9,

2017, at pages 2-4, for a brief recitation of the facts. We add our additional

detail, taken from the certified record.

       On March 15, 2011, Hunter “grabbed [B.T.] by the shoulders and

forcibly basically pushed or threw him away from her.          He fell backward

striking his head on the carpeted floor and he was at that point unconscious

essentially.” N.T. Trial, 1/26/2017, at 16.2 Dr. Dias further testified,

       This child was abused. The child suffered severe head injury and
       putting all the facts together I have no question in my mind this
       child suffered abuse of head injury on the morning of the 15 th
       when his stepmother [Hunter] at the very least shoved him and/or
       threw him across the room and he hit his head on the floor. He
       then suffered a head injury at that point, as I said, which was a
       fairly severe head injury. He then was left alone without any
       medical treatment while all these text messages were going back
       and forth describing the sequence of some neurological recovery
       from that coma that he had from the head injury on the morning
       of the 15th and then we see, again, from the text messages and


____________________________________________


2Testimony of Treating Physician, Dr. Mark Dias, M.D. Dr. Dias is a pediatric
neurosurgeon associated with the Penn State Hershey Medical Center.

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        from the father’s statement that evening that he wasn’t doing well
        the next day.

Id. at 45-46.

        The text messages between Hunter and William Hunter, B.T.’s father,

include a message from Hunter that read: “he’s been stretching and flailing

his arms kinda like retards do on a normal basis lol … so he’s en route to

waking up. It’s like he’s awake but not conscious.” Id., 1/24/2017, at 67.3

        The untreated injury essentially caused B.T.’s brain to swell to such a

degree that by the evening of March 16, 2011,

        he probably either had a seizure or stopped breathing on his own
        because of the brain swelling had reached such a critical point that
        his brain was so compromised that he could no longer keep
        breathing, so the net effect of that whether it was a seizure or
        whether it was from pressure in the head was that he stopped
        breathing and had a – basically a cardiorespiratory arrest.

Id., 1/26/2017, at 26.4

        On cross-examination, Dr. Dias noted the failure of either Hunter or

B.T.’s Father to respond to the clear medical emergency.

        [Defense Counsel]: It’s fair to say that neither Michele [Hunter]
        or William Hunter [Father] had taken the necessary steps required
        to assist [B.T.], is that correct, I mean, they hadn’t tried to get
        medical help as soon as they should have?

        [Dr. Dias]: Yeah, I mean, that’s stunning for me but, yes, just
        when you – in terms of you talking about concussion and parents
        and other adults bringing children to medical attention, I can
        certainly tell you from my own personal experience with hundreds
        of children with concussions that people tend to overreact and to
____________________________________________


3   Testimony of Detective Scott Mummert.

4   Testimony of Dr. Dias.

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      bring them in for medical attention even when they’re really doing
      pretty well.    It’s stunning to me that somebody would be
      unconscious and barely responsive for two days and somebody
      wouldn’t take them to the doctor.

Id. at 54.

      Hunter’s first issue is a claim the trial court erred in instructing the jury,

after the jury had deliberated and requested clarification regarding what they

could consider in determining malice.        Trial counsel were informed of the

question and were given the opportunity to respond to the trial court. After

considering input from counsel, the trial court informed the jury in the

following manner:

      The question is, as to the act being done with malice, is it just as
      to the shoving act or is the act the entire 36 hours from the
      shoving until the time the 911 call was made. Is the act just the
      shoving or is the act what was done in the entire 36 hours.

      This is your additional instruction on that point. For murder of the
      third degree, when deciding whether the defendant acted with
      malice, you may consider all evidence regarding her words,
      conduct and attending circumstances that may show her state of
      mind at the time of the shove.

      Actions of the defendant that occurred before, during and after
      the shove may all be considered as attending circumstances.

      Malice may also exist where the failure to perform a legal duty
      was willful and will probably result in the death of the victim.

      You may consider all the actions of the defendant in the 36 hour
      period of time from the shove to cardiac arrest in determining
      whether the Commonwealth has proven the required malice
      necessary for the third element of third degree murder.

N.T. Trial, 4/24/2017, at 87 (emphasis added).




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      In conference, the defense had objected to that portion of the charge

from the referral to the willful failure to perform a legal duty to the end of the

charge.    Specifically, the defense argued there had been no evidence

presented demonstrating there would have been any other outcome had

Hunter immediately taken B.T. for medical care. In response to the objection,

the Commonwealth pointed out Dr. Dias had described the physical/medical

process that began with the shove and B.T striking his head and ending with

his failure to breath and cardiac arrest. See id. at 85-86.

      Our standard of review in assessing a trial court's jury instruction
      is as follows. “When evaluating the propriety of jury instructions,
      this Court will look to the instructions as a whole, and not simply
      isolated portions, to determine if the instructions were improper.”
      Commonwealth v. Antidormi, 84 A.3d 736, 754 (Pa. Super.
      2014) (citations and quotation omitted). A trial court has “broad
      discretion in phrasing its instructions, and may choose its own
      wording so long as the law is clearly, adequately, and accurately
      presented to the jury for its consideration.” Id. (citations and
      quotation omitted). “Only where there is an abuse of discretion or
      an inaccurate statement of the law is there reversible error.” Id.
      (citations and quotation omitted).

Commonwealth v. Miller, 172 A.3d 632, 645 (Pa. Super. 2017).

      Our review of the certified record, having paid particular attention to the

medical testimony provided at trial, leads us to conclude the jury charge given

by the trial court was proper. The medical evidence described the ongoing

process that ultimately resulted in B.T.’s death as well as the abject lack of a

timely response by Hunter, as step-mother of this four-year-old child, to

timely obtain medical care for a child that had been rendered immediately

unconscious after being thrown to the floor.         The totality of Dr. Dias’s


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J-S20023-18



testimony, as well as the testimony of other treating medical providers and

the pathologist was sufficient to allow the jury to consider Hunter’s failure to

perform her legal duty to obtain medical attention as evidence of malice.

Accordingly, we believe the instruction accurately described the law and was

appropriate in light of the evidence presented at trial.

       Next, Hunter claims the Commonwealth failed to present sufficient

evidence of malice to support a conviction for third degree murder.             She

argues B.T.’s death was caused by a single push, and there was insufficient

evidence to show any suggestion of malice.5 We disagree.

       The standard of review for a challenge to the sufficiency of the evidence

is both well known and oft-repeated.

       The standard of review for a challenge to the sufficiency of the
       evidence is to determine whether, when viewed in a light most
       favorable to the verdict winner, the evidence at trial and all
       reasonable inferences therefrom is sufficient for the trier of fact to
       find that each element of the crimes charged is established beyond
       a reasonable doubt. The Commonwealth may sustain its burden
       of proving every element beyond a reasonable doubt by means of
       wholly circumstantial evidence.

       The facts and circumstances established by the Commonwealth
       need not preclude every possibility of innocence. Any doubt raised
       as to the accused's guilt is to be resolved by the fact-finder. As an
       appellate court, we do not assess credibility nor do we assign
       weight to any of the testimony of record. Therefore, we will not
       disturb the verdict 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.


____________________________________________


5Because malice is the only element of the crime challenged, we need not
detail the other elements of the crime.

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Commonwealth v. Wanner, 158 A.3d 714, 717-18 (Pa. Super. 2017)

(citation omitted).

         Hunter is correct that, as a general statement of the law, “a single blow,”

or as in this matter a single push, “without a weapon is, ordinarily not

sufficient    to   establish   malice.”     Appellant’s   Brief   at   29,   quoting

Commonwealth v. MacArthur, 629 A.2d 166, 168 (Pa. Super. 1993).

However, the trial court correctly notes that it is the totality of the

circumstances that determines malice. See Trial Court Opinion, 11/9/2017,

at 11.

         The evidence presented at trial depicts substantially more than a single

push. The record reveals that Hunter is an adult female standing five feet tall

and weighing 175 pounds. A physical description of the child victim, B.T., is

not to be found in the certified record. We know only that he was a four-year-

old boy at the time the fatal injury was visited upon him. It may be presumed,

however, that Hunter was substantially larger than B.T. Dr. Dias testified B.T

effectively was thrown to the floor with such force that when his head struck

the carpeted floor he was rendered immediately unconscious. This evidence

represents a vigorous attack upon a child.

         Although his condition waxed and waned, regaining consciousness later

in the day, he remained virtually comatose until his brain swelled to such a

degree that he suffered respiratory and cardiac arrest. It was not until his

eyes rolled back into his head and he stopped breathing that anyone

attempted to obtain medical aid. While B.T. remained unconscious on the first

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day after the assault, Hunter sent texts to her husband, B.T.’s father,

downplaying the extent of the child’s injuries, comparing the child’s seizure-

like actions to those of a “retard”, while adding “lol”6 to the text. The jury was

entitled to consider this callous disregard for B.T.’s well-being as evidence of

malice in Hunter’s abandonment of her duty to provide care for B.T. as well

as malice relating back to the attack on the child.         Dr. Dias, a pediatric

neurosurgeon, who has spent his career treating neurologically compromised

children, noted the extensive damage caused by the attack and was stunned

by the subsequent disregard of B.T.’s welfare in failing to obtain any medical

help in a timely manner.

        While our recitation of the facts has sanitized the facts underlying this

matter to some degree, it remains clear that what happened to B.T. on the

morning of March 15, 2011, was substantially more than a single push.

Accordingly, our review of the certified record confirms there was sufficient

evidence for the jury to have found Hunter acted with the malice required to

support a finding of third degree murder.

        Hunter’s third claim is the verdict is against the weight of the evidence.7

        An appellate court’s standard of review when presented with a
        weight of the evidence claim is distinct from the standard of review
        applied by the trial court:



____________________________________________


6   The acronym, “lol”, stands for “laughing out loud.”

7   This claim was properly preserved via post-trial motion.

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        Appellate review of a weight claim is a review of the
        exercise of discretion, not of the underlying question of
        whether the verdict is against the weight of the evidence.
        [Commonwealth v.] Brown, [560 Pa. 410,] 648 A.2d
        [1177] at 1189 [(1994)]. Because the trial judge has had
        the opportunity to hear and see the evidence presented,
        an appellate court will give the gravest consideration to the
        findings and reasons advanced by the trial judge when
        reviewing a trial court’s determination that the verdict is
        against the weight of the evidence. Commonwealth v.
        Farquharson, 467 Pa. 50, 354 A.2d 545 (Pa. 1976) [sic].
        One of the least assailable reasons for granting or denying
        a new trial is the lower court’s conviction that the verdict
        was or was not against the weight of the evidence and that
        a new trial should be granted in the interest of justice.


     [Commonwealth v.] Widmer, 560 Pa. [308] at 321-22, 744
     A.2d [745] at 753 [(2000)] (emphasis added).

     This does not mean that the exercise of discretion by the trial court
     in granting or denying a motion for a new trial based on a
     challenge to the weight of the evidence is unfettered. In describing
     the limits of a trial court’s discretion, we have explained:

        The term “discretion” imports the exercise of judgment,
        wisdom and skill so as to reach a dispassionate conclusion
        within the framework of the law, and is not exercised for
        the purpose of giving effect to the will of the judge.
        Discretion must be exercised on the foundation of reason,
        as opposed to prejudice, personal motivations, caprice or
        arbitrary actions. Discretion is abused where the course
        pursued represents not merely an error of judgment, but
        where the judgment is manifestly unreasonable or where
        the law is not applied or where the record shows that the
        action is a result of partiality, prejudice, bias or ill-will.


     Widmer, 560 Pa. at 322, 744 A.2d at 753 (quoting Coker v. S.M.
     Flickinger Co., 533 Pa. 441, 447, 625 A.2d 1181, 1184-85
     (1993)).
Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013).




                                     -9-
J-S20023-18


        On August 28, 2017, the trial court authored a comprehensive opinion

addressing Hunter’s weight of the evidence claim. We have reviewed both the

trial court’s opinion as well as the certified record and we discern no abuse of

discretion in the trial court’s denial of Hunter’s motion for a new trial based

upon the claim the verdict was against the weight of the evidence. The parties

are directed to attach a copy of the trial court’s August 28, 2017 opinion in

the event of further proceedings.

        Hunter’s final claim is that the trial court erred in failing to suppress

statements she made to the police. Hunter argues she did not knowingly and

voluntarily waive her Miranda8 rights. Hunter is not entitled to relief.

        We note our standard of review when addressing a challenge to
        the denial of a suppression motion:

           We may consider only the Commonwealth's evidence and
           so much of the evidence for the defense as remains
           uncontradicted when read in the context of the record as a
           whole. Where the record supports the factual findings of
           the trial court, we are bound by those facts and may
           reverse only if the legal conclusions drawn therefrom are
           in error. An appellate court, of course, is not bound by the
           suppression court's conclusions of law.

        Commonwealth v. Arter, 637 Pa. 541, 151 A.3d 149, 153
        (2016) (citation omitted). “[I]t is the sole province of the
        suppression court to weigh the credibility of witnesses,” and “the
        suppression court judge ‘is entitled to believe all, part or none of
        the evidence presented.’ ” Commonwealth v. Blasioli, 454
        Pa.Super. 207, 685 A.2d 151, 157 (1996), affirmed, 552 Pa. 149,
        713 A.2d 1117 (1998).



____________________________________________


8   Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

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J-S20023-18


Commonwealth v. Fitzpatrick, 181 A.3d 368, 373 (Pa. Super. 2018)

(footnote omitted).

      The trial court held a hearing on Hunter’s motion to suppress on October

13, 2015 at which time experts for both Hunter and the Commonwealth

testified regarding Hunter’s state of mind when she waived her Miranda

rights. Each expert posited reasons why Hunter had or had not voluntarily

waived her rights. Ultimately, after considering the testimony and applicable

legal authority, the trial court found that Hunter clearly had knowingly and

voluntarily waived her rights. The trial court’s decision is based upon evidence

of record, in the form of the expert testimony of Dr. Gerald Cooke, a forensic

psychologist. As such, there are no grounds to reverse the trial court’s well

considered decision.   In the event of further proceedings, the parties are

directed to attach a copy of the trial court’s January 8, 2016, opinion

addressing Hunter’s motion to suppress.

      In the event of further proceedings, the parties are directed to attach

copies to the trial court opinions dated January 8, 2016, August 28, 2017, and

November 9, 2017.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 09/07/2018

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