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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT
                                                       OF PENNSYLVANIA
                             Appellee

                        v.

    JENNIFER ANNE MEDZIE,

                             Appellant                 No. 694 WDA 2018


       Appeal from the Judgment of Sentence Entered November 6, 2017
               In the Court of Common Pleas of Clearfield County
             Criminal Division at No(s): CP-17-CR-0000771-2016

BEFORE: BENDER, P.J.E., MCLAUGHLIN, J., and PELLEGRINI, J.*

MEMORANDUM BY BENDER, P.J.E.:                       FILED OCTOBER 09, 2019

        Appellant, Jennifer Anne Medzie, appeals from the judgment of sentence

of 20 to 40 years’ incarceration, imposed after a jury convicted her of third-

degree murder and related offenses. Appellant challenges the discretionary

aspects of her sentence, as well as the sufficiency of the evidence to sustain

her convictions. We affirm.

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

              The case at bar involved the death of [a] two-year-old
        [female] (hereinafter, “Victim”) on November 18, 2013.
        Immediately prior to Victim’s untimely death, she was under the
        care and supervision of … [Appellant]. [Appellant] met Victim’s
        biological father, Cody Lauder (hereinafter, “Lauder”), in July of
        2013. [Appellant] moved in with Lauder in September of the same
        year. Because of Lauder’s work schedule, [Appellant] became the
        primary caretaker of Victim during the day. In the 4 (four) to 6
        (six) weeks prior to her death, Victim began losing her hair, and
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*   Retired Senior Judge assigned to the Superior Court.
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      developed dark circles … under her eyes. On November 14, 2013,
      Victim began to vomit. Lauder and [Appellant] then took Victim
      to the Dubois Hospital Emergency Room, where she was released
      thereafter with flu-like symptoms.

             On November 15, 2013, Lauder checked on … Victim before
      leaving for work. Lauder report[ed] that Victim was asleep and
      well in her pack n’ play. [Appellant] report[ed] that she went to
      get Victim out of the pack n’ play at approximately 7:30 a.m., at
      which time Victim “appeared to be normal and showed no signs of
      being sick.” [Appellant] stated that as she was dressing her,
      Victim went limp and “fainted in her arms.” She thereafter called
      paternal grandmother Brandi Lauder and [Appellant’s] friend,
      Krisandra Evans (hereinafter, “Evans”).          She report[ed]
      attempting to call 911 and not being able to get through. At this
      point, Evans called 911, [and emergency personnel] arrived at
      approximately 9 a.m. Approximately one hour and 15 minutes
      elapsed between the inception of Victim’s symptoms and calling
      911.

            At no point in time did [Appellant] admit to knowing what
      was wrong with … Victim. … Victim was ultimately life-flighted
      from Clearfield Hospital to Pittsburgh Children’s Hospital; she was
      pronounced brain dead on November 18, 2013. Medical personnel
      attempted to gather information from [Appellant] and Lauder. As
      noted, [Appellant] never gave any information or admitted to
      knowing what was wrong with Victim. Uncontested testimony
      from three medical experts revealed that [Victim] died from global
      hypoxic[]ischemic encephalopathy resulting from blunt force
      trauma to the head, or, “Shaken Baby Syndrome.”

Trial Court Opinion (TCO), 11/30/18, at 1-2 (footnotes omitted).

      Following a jury trial, Appellant was convicted of third-degree murder,

aggravated assault, endangering the welfare of children (EWOC), simple

assault, and recklessly endangering another person (REAP). On November 6,

2017, she was sentenced to 20 to 40 years’ imprisonment for her third-degree

murder conviction, and a concurrent term of 1 to 2 years’ incarceration for her




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EWOC offense.     Appellant’s remaining convictions merged for sentencing

purposes.

      Appellant filed a timely post-sentence motion, which the court denied.

She then filed a timely notice of appeal, and she also complied with the trial

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

complained of on appeal.      The court filed its Rule 1925(a) opinion on

November 30, 2018. Herein, Appellant states two issues for our review:

      I. Whether the sentence imposed, which was the statutory
      maximum, was excessive and focused too much on the punitive
      nature of the sentence and did not place enough emphasis on
      rehabilitation[,] especially in light of [] Appellannt’s [sic] young
      age?

      II. Whether the evidence was sufficient enough to prove []
      Appellant committed murder of the third degree, aggravated
      assault, [EWOC], simple assault and [REAP,] as the nexus
      connecting the death of the child to [] Appellant was weak at best;
      as the evidence showed the child was sick for at least six weeks
      prior to her death, and [she] went to the emergency room the day
      before her death and was released and sent home?

Appellant’s Brief at 5 (unnecessary capitalization omitted).

      Appellant’s first issue implicates the discretionary aspects of her

sentence.

      Challenges to the discretionary aspects of sentencing do not
      entitle an appellant to review as of right. Commonwealth v.
      Sierra, 752 A.2d 910, 912 (Pa. Super. 2000). An appellant
      challenging the discretionary aspects of his sentence must invoke
      this Court’s jurisdiction by satisfying a four-part test:

         We conduct a four-part analysis to determine: (1) whether
         [the] appellant has filed a timely notice of appeal, see
         Pa.R.A.P. 902 and 903; (2) whether the issue was properly
         preserved at sentencing or in a motion to reconsider and
         modify sentence, see Pa.R.Crim.P. 720; (3) whether [the]

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         appellant’s brief has a fatal defect, Pa.R.A.P. 2119(f); and
         (4) whether there is a substantial question that the sentence
         appealed from is not appropriate under the Sentencing
         Code, 42 Pa.C.S.[] § 9781(b).

      Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006),
      appeal denied, 589 Pa. 727, 909 A.2d 303 (2006). Objections to
      the discretionary aspects of a sentence are generally waived if
      they are not raised at the sentencing hearing or in a motion to
      modify the sentence imposed. Commonwealth v. Mann, 820
      A.2d 788, 794 (Pa. Super. 2003), appeal denied, 574 Pa. 759, 831
      A.2d 599 (2003).

      The determination of what constitutes a substantial question must
      be evaluated on a case-by-case basis. Commonwealth v. Paul,
      925 A.2d 825, 828 (Pa. Super. 2007). A substantial question
      exists “only when the appellant advances a colorable argument
      that the sentencing judge’s actions were either: (1) inconsistent
      with a specific provision of the Sentencing Code; or (2) contrary
      to the fundamental norms which underlie the sentencing process.”
      Sierra, supra at 912–13.

Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (quoting

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010)).

      In this case, Appellant filed a timely notice of appeal, and she included

a Rule 2119(f) statement in her appellate brief.     Therein, she alleges the

following:

            The sentencing [court] did not state [its] reasons on the
      record for the sentence[] imposed and the … [court] gave an
      unreasonable sentence under the circumstances, although the
      sentence was within the guidelines.

            The sentencing court must state its reasons on the record
      for the sentence imposed. The sentencing court did not state its
      reasons for the sentence on the record and relied solely on the
      recommendation from the probation office. Although within the
      guidelines, because the guidelines go up to the statutory
      maximum for [t]hird[-d]egree [m]urder, the maximum sentence
      was unreasonable even though [it is] within the guidelines. The
      sentencing court stated that it had to “balance” the death of a two


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       year old versus the request for leniency from [] Appellant. ([N.T.]
       Sentencing[, 11/6/17, at] 25). There was no “balancing” as the
       court went completely one way without stating its reasons for
       doing so on the record as required and the court ignored
       sentencing factors other than punishment.

Appellant’s Brief at 9.

       Initially, Appellant did not assert, in her post-sentence motion or at the

sentencing proceeding, that the court failed to state its reasons for her

sentence on the record, or that it relied solely on the recommendation of the

probation department. See Post-Sentence Motion, 11/16/17, at 2. Instead,

Appellant argued only that the court failed to “adequately consider”

Appellant’s “age and family history[,]” her rehabilitative needs, and the

protection of the public. Id. Thus, Appellant waived the arguments she now

raises on appeal. See Commonwealth v. Bullock, 948 A.2d 818 (Pa. Super.

2008) (stating that a discretionary aspect of sentence claim is waived if the

appellant does not challenge it in post-sentence motions or by raising the

claim during the sentencing proceedings).1
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1 Additionally, we observe that Appellant did not raise, in her Rule 1925(b)
statement, her assertions that the court failed to state adequate reasons for
her sentence, and that it relied solely on the probation department’s
sentencing recommendation. However, our review of the record reveals that
the trial court did not inform Appellant, in its Rule 1925(b) order, that any
issue(s) not raised would be deemed waived. See Order, 5/14/18, at 1 (single
page); see also Pa.R.A.P. 1925(b)(3)(iv) (directing that the Rule 1925(b)
order state “that any issue not properly included in the Statement … shall be
deemed waived”). Therefore, we would not deem Appellant’s issues waived
based on her omitting them from her Rule 1925(b) statement. See Greater
Erie Indus. Dev. Corp. v. Presque Isle Downs, Inc., 88 A.3d 222, 225
(Pa. Super. 2014) (“In determining whether an appellant has waived his issues
on appeal based on non-compliance with [Rule] 1925, it is the trial court’s



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       Additionally, Appellant’s bald claim that her sentence is unreasonable,

and her assertion that the court ignored sentencing factors, do not constitute

substantial questions for our review.          Appellant does not identify in what

way(s) her sentence is unreasonable, nor what factors the court failed to

consider. She also does not explain, or cite any legal authority to support,

why the sentencing judge’s actions were inconsistent with a specific provision

of the Sentencing Code or contrary to the fundamental norms underlying the

sentencing process. Thus, Appellant has failed to demonstrate a substantial

sentencing question for our review.2

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order that triggers an appellant’s obligation[;] … therefore, we look first to the
language of that order.”) (citation and internal quotation marks omitted).

2 In any event, we would deem Appellant’s sentencing assertions meritless,
as it is clear from the record that the court did not focus solely on punishing
her without considering other factors, such as her age and need for
rehabilitation. Initially, the court had the benefit of a pre-sentence report.
N.T. Sentencing at 15. It also stated that it had considered a sentencing
memorandum prepared by defense counsel, as well as numerous letters
written by friends and family of Appellant that were attached thereto. Id. at
10-13. Additionally, the court heard statements at the sentencing hearing
from Appellant’s aunt and father, who stressed Appellant’s young age at the
time of her crimes. Id. at 17, 23. Appellant’s pastor also spoke, claiming that
she had been counseling Appellant, and asking the court for a lenient
sentence. Id. at 18-19. Ultimately, however, the court found that Appellant
had made the choice to move in with Victim’s father and care for Victim every
day, although Appellant was only 18 years old at the time. Id. at 24. The
court also stressed that while the individuals who wrote or spoke on
Appellant’s behalf believed “that she was innocent and that somebody else
should be held responsible[,]” that was “not what the evidence showed.” Id.
at 25. Instead, “the evidence that was presented to the jury was very clear
that on that fateful morning, for whatever reason, … [Appellant] shook and
beat that two-year-old girl to death.” Id. After carefully balancing the



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       In Appellant’s second issue, she challenges the sufficiency of the

evidence to sustain her convictions. To begin, we note our standard of review

for a challenge to the sufficiency of the evidence:

       In reviewing a sufficiency of the evidence claim, we must
       determine whether the evidence admitted at trial, as well as all
       reasonable inferences drawn therefrom, when viewed in the light
       most favorable to the verdict winner, are sufficient to support all
       elements of the offense. Commonwealth v. Moreno, 14 A.3d
       133 (Pa. Super. 2011). Additionally, we may not reweigh the
       evidence or substitute our own judgment for that of the fact
       finder. Commonwealth v. Hartzell, 988 A.2d 141 (Pa. Super.
       2009). The evidence may be entirely circumstantial as long as it
       links the accused to the crime beyond a reasonable doubt.
       Moreno, supra at 136.

Commonwealth v. Koch, 39 A.3d 996, 1001 (Pa. Super. 2011).

       Here, Appellant contends that the evidence was insufficient to sustain

her convictions because the Commonwealth failed to prove that she “caused

an injury to [Victim] which resulted in her death.” Appellant’s Brief at 14.

Appellant stresses that “on the initial death certificate[, the medical examiner,

Abduurezak Shakir, M.D.,] stated that the manner of death … ‘cannot be

determined.’” Id. at 13 (citing N.T. Trial, 8/22/17, at 36). Dr. Shakir “also

testified that the blunt force trauma on the child’s body and contusions to the

child’s body could have been caused after her death when [her] organs were


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seriousness of Appellant’s offense against the mitigating circumstances of her
case, the court determined that the statutory maximum term of incarceration
(which, for third-degree murder, is also a standard range sentence) was
appropriate. In sum, even had Appellant preserved her sentencing claim for
our review, we would conclude that she has not demonstrated an abuse of
discretion in the court’s sentencing decision.

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harvested[,]” or “during the medical treatment of the child.” Id. at 14 (citing

N.T. Trial, 8/22/17, at 39). Appellant insists that

      [t]he Commonwealth wants to stretch all this into a finding that …
      Appellant caused these injuries to the child[] when[,] in fact[,]
      there is no direct evidence thereto[,] and even the medical
      evidence presented indicates that trauma caused to the child could
      have been caused by the medical personnel working on the child.
      Further, no blood testing, x-rays, or any other tests were
      performed on the child the very day before she died when she was
      at the emergency room.

Id.   Therefore, Appellant argues that the evidence was insufficient to

demonstrate that she caused the injuries to Victim that resulted in Victim’s

death.

      We disagree. Dr. Shakir opined that Victim’s cause of death was “global

hypoxic ischemic encephalopathy resulting from blunt force trauma of the

head.” N.T. Trial, 8/22/17, at 36. The doctor explained that he listed the

manner of death on Victim’s death certificate as “could not be determined”

because it was unclear, at that time, “whether this [was] a homicide or

whether … [it was] accidental.” Id. Additionally,

      [Dr.] Shakir further testified that [Appellant’s] description of
      events immediately preceding Victim’s symptoms was not
      consistent with the autopsy findings. [Dr.] Shakir stated that
      based on the autopsy and examination, [Appellant’s] description
      of events indicated [Appellant] was not describing “exactly what
      happened.”

TCO at 7.

      Furthermore, Dr. Shakir was not the sole medical expert presented by

the Commonwealth. Instead,



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            [Dr.] Shakir’s findings regarding cause of death were
      corroborated by two different medical experts. Adelaide Eichman
      (hereinafter, “[Dr.] Eichman”) at the time of trial worked as a
      pediatrician at Children’s Hospital of Pittsburgh in the Child
      Advocacy Center.        Specifically, [Dr.] Eichman conducted
      evaluations for children to determine if there has been abuse
      and/or neglect. [Dr.] Eichman performed a consultation and
      examination of Victim on November 15, 2013. Based on medical
      history, her examination of Victim and interviews with Victim’s
      family and [Appellant], [Dr.] Eichman concluded that Victim
      suffered from Abusive Head Trauma (Shaken Baby Syndrome).
      [Dr.] Eichman stated that “... this Child was in the intensive care
      unit because she had been abused ... somebody taking care of her
      had hurt her and basically put her in critical condition.”

            Pathologist     Harry    Kamerow      (hereinafter,   “[Dr.]
      Kamerow”)[,] of Centre Pathology Associates[,] testified that
      Victim died of global hypoxic ischemia encephalopathy due to
      blunt force trauma to the head. [Dr.] Kamerow further testified
      that the manner of death was homicide. [Dr.] Kamerow stated
      that, “this clinical history overwhelmingly indicates homicide.”
      Additionally, [Dr.] Kamerow testified that the individual present
      with Victim would know that something was wrong immediately.
      She would have been “symptomatic in terms of intense head pain
      within multiple minutes ... greater than one and less than ten.”

Id. at 7-8 (footnotes omitted).

      The testimony of these medical experts was sufficient for the jury to

conclude that Victim died of blunt force trauma to her head, and that her

injuries were caused intentionally, not accidentally. Additionally, Appellant

“admitted that she was the only one present with Victim. Lauder had left for

work, leaving [Appellant] and Victim alone on the morning of November 15,

2013.” TCO at 8. Therefore, the Commonwealth’s circumstantial evidence

was adequate to establish that Appellant caused the injuries to Victim that

resulted in her death. Consequently, her challenge to the sufficiency of the

evidence to support her convictions is meritless.


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     Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/9/2019




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