J-S30014-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                         IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA
                            Appellee

                       v.

SAMUEL N. CABRERA

                            Appellant                      No. 511 EDA 2015


            Appeal from the Judgment of Sentence January 16, 2015
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0009793-2013


BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and JENKINS, J.

MEMORANDUM BY GANTMAN, P.J.:                               FILED JUNE 15, 2016

        Appellant, Samuel N. Cabrera, appeals from the judgment of sentence

entered in the Philadelphia County Court of Common Pleas, following his

convictions    of   third   degree      murder,   involuntary   manslaughter,   and

endangering the welfare of children (“EWOC”).1 We affirm.

        In its opinion, the trial court fully and correctly sets forth the relevant

facts and procedural history of this case.2 Therefore, we have no reason to

restate them.

        Appellant raises the following issues for our review:
____________________________________________


1
    18 Pa.C.S.A. §§ 2502(c), 2504(a), and 4304(a)(1), respectively.
2
 Appellant filed his supplemental concise statement of errors complained of
on appeal pursuant to Pa.R.A.P. 1925(b) on June 4, 2015, not June 4, 2014,
as stated in the trial court opinion.
J-S30014-16


         WAS NOT THE EVIDENCE INSUFFICIENT TO SUPPORT THE
         VERDICT OF THIRD DEGREE MURDER AS A MATTER OF
         LAW WHERE APPELLANT DID NOT ACT WITH MALICE
         WHEN HE STRUCK HIS CHILD?

         DID NOT THE TRIAL COURT ERR AS A MATTER OF LAW
         AND ABUSE ITS DISCRETION IN ALLOWING HEARSAY
         TESTIMONY IN THE FORM OF A VIDEO RECORDING OF A
         CHILD WITNESS PURSUANT TO THE TENDER YEARS
         HEARSAY ACT, 42 [PA.C.S.A]. § 5985.1, WHERE THE
         HEARSAY DID NOT CONTAIN CORE INDICIA OF
         RELIABILITY—SPONTANEITY AND CONTEMPORANEITY[?]

(Appellant’s Brief at 3).

      A challenge to the sufficiency of the evidence implicates the following

legal principles:

         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)


                                     -2-
J-S30014-16


(quoting Commonwealth v. Bullick, 830 A.2d 998, 1000 (Pa.Super.

2003)).

     The Crimes Code defines murder as follows:

          § 2502. Murder

          (a) Murder of the first degree.—A criminal homicide
          constitutes murder of the first degree when it is committed
          by an intentional killing.

          (b) Murder of the second degree.—A criminal
          homicide constitutes murder of the second degree when it
          is committed while defendant was engaged as a principal
          or an accomplice in the perpetration of a felony.

          (c) Murder of the third degree.—All other kinds of
          murder shall be murder of the third degree. Murder of the
          third degree is a felony of the first degree.

                                  *    *    *

18 Pa.C.S.A. § 2502(a)-(c).     “Murder in the third degree is an unlawful

killing with malice but without the specific intent to kill.” Commonwealth

v. Dunphy, 20 A.3d 1215, 1219 (Pa.Super. 2011). Malice is defined as:

          [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…. [M]alice may be found where the
          defendant consciously disregarded an unjustified and
          extremely high risk that his actions might cause serious
          bodily injury.

Commonwealth v. DiStefano, 782 A.2d 574, 582 (Pa.Super. 2001),

appeal denied, 569 Pa. 716, 806 A.2d 858 (2002). “Malice may be inferred

by considering the totality of the circumstances.” Dunphy, supra.

     After a thorough review of the record, the briefs of the parties, the

                                      -3-
J-S30014-16


applicable law, and the well-reasoned opinion of the Honorable Sandy L.V.

Byrd, we conclude Appellant’s issues on appeal merit no relief.            The trial

court opinion comprehensively discusses and properly disposes of the

questions presented. (See Trial Court Opinion, filed September 30, 2015, at

11-16, 24-28) (finding: (1) Commonwealth’s expert witness, Dr. Aaron

Rosen, described victim’s injuries to include multiple rib fractures, fractured

collarbone, and significant lacerations to victim’s liver; Dr. Rosen opined to

reasonable degree of medical certainty that these injuries caused victim’s

death and were caused by severe blunt force trauma; Dr. Rosen also noted

that victim’s autopsy revealed new bone formation on victim’s rib and

collarbone, which indicated victim had sustained prior injuries; Dr. Rosen

further stated that elasticity of child’s bones makes them very difficult to

fracture and that victim’s injuries required significant amount of force;

Commonwealth also demonstrated Appellant’s guilt through introduction of

Appellant’s   three   different   statements   of   what   happened   to    victim;

Appellant’s different versions of incident indicated Appellant’s attempt to

hide fact that he was alone with victim when victim sustained fatal injuries;

all of Commonwealth’s evidence established Appellant grossly disregarded

that his actions might create substantial and unjustifiable risk of death or

serious bodily injury to victim; further, Appellant failed to obtain immediate

medical care for victim in violation of his parental caretaking duties; thus,

Commonwealth proved beyond reasonable doubt that Appellant acted with


                                       -4-
J-S30014-16


malice when he beat victim to death, and trial court properly convicted

Appellant of all offenses charged; (2) video of child witness’ statement,

taken six months after victim’s death, was relevant to Appellant’s case;

additionally,   time,    content    and    circumstances    of    statement     provided

sufficient indicia of reliability; video revealed that only person present during

interview with child witness was interviewer from Philadelphia Children’s

Alliance; in fact, child advocate, detective, and social worker merely

observed interview from another room and were not involved in questioning

of child; additionally, statement given by child witness was spontaneous and

mirrored     child   witness’      in-court    testimony;   further,    child    witness

demonstrated competent mental state, used terminology of child of similar

age, and lacked motive to fabricate; thus, Commonwealth established

truthfulness and reliability of statement, and trial court properly admitted

statement pursuant to Tender Years Hearsay Act).                 We accept the court’s

sound reasoning.

       To the extent the separate sentence for Appellant’s EWOC conviction

implicates the legality of the sentence, which we raise sua sponte,3 the court

indicated on the record that this conviction stemmed from Appellant’s failure

to seek medical attention for victim.          In contrast, Appellant’s third degree

____________________________________________


3
  See Commonwealth v. Randal, 837 A.2d 1211 (Pa.Super. 2003) (en
banc) (stating appellate court can raise and review legality of sentence sua
sponte).



                                           -5-
J-S30014-16


murder and involuntary manslaughter convictions stemmed from Appellant’s

beating of the victim.     Because Appellant’s involuntary manslaughter and

EWOC convictions pertained to separate criminal acts committed by

Appellant,   they   do     not   merge   for   sentencing   purposes.   See

Commonwealth v. Robinson, 931 A.2d 15 (Pa.Super. 2007) (en banc)

(holding concepts of merger do not apply when defendant commits multiple

distinct criminal acts).     Thus, the court properly imposed a separate,

concurrent sentence for Appellant’s EWOC conviction. Accordingly, we affirm

the judgment of sentence on the basis of the trial court opinion.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/15/2016




                                     -6-
                                                                                                   Circulated 05/17/2016 03:03 PM




              IN THE COURT OF COMMON PLEAS PHILADELPHIA COUNTY
                            CRIMINAL TRIAL DIVISION



COMMONWEAL TH OF PENNSYLVANIA                                                       CP-51-CR-0009793-2013


                  V,             CP-51-CR-0009793-201~;;~~~- v. Cabrera. SamuelN.   SUPERIOR COURT


SAMUEL N. CABRERA                      1111111111111111               m                                    FILED
                                            7351092121                              511 EDA 2015
                                                                                                            SEP 3 0 2015
                                                                                                       Crimina r .f.\opeals Uni.
                                                                                                    First Judic1a1'rnstrict 01 ;::~
                                                          OPINION

Byrd, J.                                                                                             September30,2015

      Samuel N. Cabrera filed a direct appeal from this court's January 16, 2015 judgment of sentence.

    In accordance with the requirements of PA. R.APP. PROC. 1925, this court submits the following

Opinion.

                                          I. PROCEDURAL HISTORY

      Defendant Samuel N. Cabrera was arrested on April 11, 2013 and charged with a range of

offenses.1 After waiving a jury trial, defendant was tried by this court, commencing on November 12,

2014. On November 13, 2014 defendant was found guilty of murder of the third degree, involuntary

manslaughter and endangering the welfare of a child. On January 16, 2015 defendant was sentenced

to an aggregate twenty (20) - forty ( 40) years of state incarceration.' Appellate counsel filed a Notice

of Appeal on defendant's behalf on February 13, 2015. This court issued an order on February 17,

2015 directing defendant to file a Statement of Matters Complained of on Appeal in accordance with


1
  Defendant was charged with murderofthe third degree (18 PA. CONS. STAT.ANN.§ 2502(c)); involuntary manslaughter
§ 2504 (a); and endangering the welfare of a child § 4304 (a)(]).
2
  Defendant received a sentence of twenty (20) - forty (40) years of confinement for the charge of murder of the third




                                                                                                                                   .ce-;:-}z;_;
                                                                                                                                      y /
PA. RAPP. PROC. 1925 (b). On March 10, 2015, defendant filed said statement along with a Motion

for an Extension of Time to File a Supplemental Statement of Errors Complained of on Appeal after

receipt of the completed notes of testimony. On May 14, 2015 an extension to file was granted until

June 4, 2014, on which date said statement was timely filed.

                                        II. FACTUALBACKGROUND

        During the trial evidence was presented which when viewed in the light most favorable to the

Commonwealth as the verdict winner established the following.

        In 2013 defendant Samuel Cabrera resided at 618 N. 63rd Street in Philadelphia,

Pennsylvania with his fiancee, Jennifer Wycoff and her children, seven-year-old                     f'l.W.V. J.
six-year-old}                      ;;"!:.rour-year-o ld'/"   13 . W ,   l   ,   sixteen-month-old      G .. \N.'

and three-month-old                    s . . c.                     ; the decedent. Also living in the home were

Ms. Wycoff smother, Gabriella and Ms. Wycoff s grandmother, "Toto." N T 11/7/2014 at 15; NT

11/12/2014 at 140.         s.c .          was born £M. J {.iM.IA..<vl-'1, 20 13 in the Lankenau Medical Center

where he was diagnosed with Neonatal Abstinence Syndrome (NAS)3, as a result of exposure to

methadone, methamphetamines             and marijuana prior to birth, and admitted into the Neonatal

Intensive Care Unit (NICU). NT 11/7/2014 at 15-16, 67; N.T. 11/12/13 at 83-84. He remained in

the NICU at Lankenau from January               2013 to March 26, 2013, for a total of seventy-six days before

he was discharged into the custody of defendant and Ms. Wycoff. NT 11/ 12/2014 at 82, 84. 4 On

March 26, 2013, the day of discharge, both defendant and Ms. Wycoff received special instructions




degree, of which involuntary manslaughter was merged and a concurrent two and one-half (2.5) - five (5) years on the
charge of endangering the welfare of a child.
3
  NAS occurs when a baby goes through drug withdrawal and requires medical monitoring. N. T 11/12/2014 at 84.
4
  Defendant and Ms. Wycoff visited      S, C, a total of seven days including the day he was discharged into their
care. N. T 11/12/2014 at 85.
                                                             2
Commonwealth v. Samuel Cabrera
regarding necessary developmental and follow-up care, including an instruction to take                 S. C •

to his pediatrician within two to four days after discharge from Lankenau Medical Center. Id. at 86.

       On April 9, 2013 at 11 : 00 a.m., fourteen days after discharge, defendant andli               S. C w' s

grandmother took him to his pediatrician, Dr. Mangano for a follow-up visit. N.T. 11/7/2014 at 16;

N.T. 11/12/13 at 103. Immediately afterwards, at approximately 12:00p.m.,.,v                s. c.     /was taken

back home where defendant took him upstairs and laid him in his playpen. N.T. 11/7/2014 at 17;N.T

11I12/2014 at 141-14 2. Defendant then went back downstairs where the grandmother was cooking

and both adults later went outside together. N.T. 11/12/2014 at 141-142. At about 1:45 p.m.,

defendant heard/      5· C •     J, crying,    and he brought the child downstairs to change his diaper.

11/7/2014 at 17; N.T. 11/12/2014 at 142. Afterwards,'             S ·C •    .: fell   asleep and defendant took

him back upstairs and laid him on the bed in Ms. Wycoff' s bedroom. Id Defendant then left the baby

inthecareofthechild'sgrandmother.              ll/7/2014at 17;N.T. ll/12/2014at          142, 172.

        When defendant returned around 3 :20 p.m., Ms. Wycoff had just arrived home with the other

children. N. T. 11/7/2014 at 18; N. T. 11/12/2014 at 142, 172; N. T. 11113/2014 at 11. Upon her arrival,

    s. c.    (was crying loudly and defendant went upstairs with F\ .W.1/. ~ following behind him.

N.T. 11/13/2014 at 12. After defendant entered Ms. Wycoff's bedroom, where,                       S   .c.   was

crying, he pushed ~. w. V, out of the room and closed the door behind him. N.T 11/13/2014 at 13.

 A. W, \J. rtestified5 that she subsequently heard defendant yell at·            S. c.      /and tell him to be

quiet, before she heard the child crying and choking. N.T. 11/13/2014 at 14-15.                 A.~.V. further

testified that she called her mother upstairs, who tried but could not open the bedroom door. N. T.

11/13/2014 at 14. t A.W,V. then ran downstairs and minutes later Ms. Wycoff ran downstairs

holding a black and blue       s.c.           : irt her arms while screaming and crying that he was cold and


                                                         3
Commonwealth v. Samuel Cabrera
was not breathing.NT. 11/7/2014 at 18-19; NT. 11/12/2014 at 143,170-171 ;NT. 11/13/2014 atl 7-

18. At some point, defendant attempted to perform untrained CPR on/                              .S.C.     J   and at

approximately 3:43 p.m. Ms. Wycoff dialed 911. NT. 11/7/2014 at 19; NT. 11/12/2014 at 111-112,

143, 171-73. Paramedics were dispatched at about 3:48 p.m. and arrived at the residence

approximately five minutes later.NT.             11/7/2014 at 113-114. Defendant was standing outside the

residence holding/          .S. C,     :.who was not breathing, very pale, cold and in a serious condition. Id

at 115. The paramedics immediately placed/                S, c .     /in the back of the ambulance, began CPR

and attempted to intubate and ventilate him. Id. at 116, 121-122. While the paramedics administered

medications to           S. c.       '}md after showing defendant the proper way to administer CPR, they

asked defendant to take over chest compressions for approximately thirty seconds. Id. at 116-117,

124. The paramedics continued CPR the entire way to the hospital. Id at 118. En route to the

hospital'l       s. c.     fhad a very faint pulse. Id at 117. They arrived at the Children's Hospital of

Philadelphia (CHOP) at approximately 4:15 p.m. Id

         Later that evening, around 1 O: 00 p .m., Officer Gregory Meissler and Detective Daria Jackson

of the Special Victims Unit arrived at CHOP after receiving the report ofa baby in the Intensive Care

Unit with signs of abuse. NT. 11/7/2014 at 9-10; NT. 11/12/2014 at 137. Upon arrival, the officers

observed defendant and Ms. Wycoff in a conference room speaking with Department of Human

Services and hospital social workers. NT. 11/7/2014 at 11. Defendant was asked to accompany

Officer Meissler into a small family room and Ms. Wycoff was asked to accompany Detective

Jackson into a different family room in the same facility. Id. at 11, 30-31. Officer Meissler asked

defendant questions regarding the cause of                      S. C. 1 s 'injuries and wrote down both the



 5At trial        A• W • \J, Hestified and an admissible portion of her videotaped October 28, 2013 interview with the
 Philadelphia'   Cnildien Alliance was played. N. T. 11/13/2014 at 5-21.
                                                            4
 Commonwealthv. Samuel Cabrera
questions and answers as close to verbatim as he could.6 Id at 12; NT. 11/12/2014 at 139-140.

Defendant reviewed, signed and dated the handwritten interview, attesting to its veracity on April 9,

2013 at 10:45 p.m. NT. 11/7/2014 at 14; NT. 11/12/2014 at 143-144. Officer Meissler testified that

defendant was not given Miranda warnings prior to being questioned because defendant was not in

custody.NT. 11/7/2014 at 19. He further stated that prior to conducting the informational interview

he had only been informed that'             S .c   .     sustained multiple severe non-accidental internal

injuries as a result of inflicted trauma, but neither defendant nor Ms. Wycoff were suspects.

                                                                             1
11/7/2014 at 20. By 12:12 a.m. on April 10, 2013                    S. C.        was pronounced dead. NT.

11/7/2014 at44; NT. 11/12/2014 at 41, 144.

          On the evening of April 10, 2013 around 6:50 p.m. defendant and Ms. Wycoff were

transported to the Philadelphia Homicide Unit. NT. 11/7/2014 at 42, 54; NT. 11/12/2014 at 154-55.

Defendant was taken to an interview room, where he was first given oral Miranda rights prior to

Homicide Detective William Sierra and his partner initiating the interview or taking any handwritten

notes. N.T. 11/7/2014 at 52; NT. 11/12/2014 at 155. Detective Sierra testified that when defendant

was asked how;          s . c. .   Freceived the injuries, he stated that he wanted his response to be "off

the record.'' NT. 1117/2014 at 5 5; NT. 11I12/2014 at 157. Defendant then stated that he was carrying

      S. C.      rup the steps when he tripped on loose carpeting and dropped the baby twice. NT.

11/7/2014 at 55;NT. 11/12/2014 at 157. Detective Sierra then replied "if that's your story, we'll take

it, but we'll be able to prove scientifically and medically that's not how the injuries were sustained."

NT. 11/ 12/2014 at 157. Defendant was subsequently given written Miranda warnings at 10: 19 p.m,

During this interview, Detective Sierra explained that they were going to discuss the death of three-

month-old          S .c. 1pefore he read defendant his Miranda rights. NT. 11/7/2014 at 57-6l;NT.

6
    The interview was later memorialized and typed N. T 11/7/2014 at 13.
                                                          5
Commonwealth v. Samuel Cabrera
11/12/2014 at 159. Defendant stated that he fully understood his rights as they were explained to

him. 11/7/2014 at 68; NT. 11/12/2014 at 160-164. Defendant signed and dated the formal Miranda

warnings sheet at 10:27 p.m. NT. 11/7/2014 at 57-61; NT. 11/12/2014 at 159.

       Detective Sierra further testified that as the interview became more formal, defendant's upset

demeanor seemed to be relieved.NT.      11/7/2014 at 64. When asked "do you know who is personally

responsible for the sudden death of your son?[,]" defendant stated "[y]es, but it was an accident. I

swung at my dog to get him away from the baby and I hit my son in the side [twice] because the dog

wasn't listening." NT. 11/7/2014 at 68; NT. 11/12/2014 at 164. When asked to further explain what

happened to      s. C • J 'defendant provided the following account of events:

               I brought my son upstairs to lay him down . . . I laid him in our bed
               in our room. The first middle bedroom is our room ... I then went
               downstairs and I let my dog in from the front porch. I came in and
               opened the door and he jetted upstairs. That's what he normally does
               anyways because he sleeps in our room ... I come upstairs and I was
               yelling for him. The dog pushed the rest of the door open to let
               himself in our bedroom. I was calling him telling him to get off the
               bed, get off the bed. He doesn't listen all the time. He didn't listen, so
               I went to swing at him so he knows to jump off the bed. And then I
               went to punch at his back legs, he jumped out of the way and I hit my
               son ... in his right side ... twice. I didn't mean to[sic], I really didn't.
               The first time ... I swung my left hand (indicating using the inside
               part of a closed fist" striking my baby on his left arm ... When I hit
                him with the first punch I just thought I knocked the wind out of him
                by accident. I was trying to get the dog off the bed not realizing that
                my son was having trouble breathing. Not until I swung at the dog
                and he jumped off the bed, and ran back downstairs did I realize that
                my son was out of breath; like when someone hi ts us in our stomach .
                . . I didn't think anything was severely wrong with him ... so I put
                pressure on his chest and stomach . . . he started breathing normal
                again ... all he did was cry. So I gave him his bottle, he drank some
                milk, and he fell asleep. I didn't think nothing was wrong with him.
                Then I left to get the girls from school ... When I got home, I went
                upstairs and checked on the baby. He looked fine so I came
                downstairs ... My wife went upstairs with the other two young girls,
                the four and six year old ... she came downstairs carrying the baby
                 crying, saying he was cold, he wasn't breathing and that his skin color

                                                     6
 Commonwealth v. Samuel Cabrera
                   was really light. .. I started CPR. I panic[ked] because I didn't call
                   the ambulance or doctor knowing that my son stopped breathing
                   because of me.7

N T. 11112/2014 at 167-171. When detectives asked defendant ifhe had any additional statements, he

stated" ... I don't have money for bail and               s .c. '..s   lfuneral." Id at 174. Defendant signed a

consentto a video statement on April 11, 2013 at 1 :26 a.m. N T. 11/7/2014 at 73; NT. l l /12/2014 at

176. Later, while defendant was alone in the interview room, awaiting formal charges, detectives

found him with blood on his shirt.NT. 11/7/2014 at76;NT. 11/12/2014 177-178. When asked what

happened, defendant stated to detectives that the injury "was no big deal[,]" he bit the inside of his

jaw. Id On the same day, after defendant was informed that he would be formally charged with the

murder of his son, detectives found defendant lying in a pool of blood of his own making. NT.

11/7/2014 at 77; N T. 11/ 12/20 14 at 178.

           At trial the parties stipulated that on August 24, 2013 defendant, while incarcerated awaiting

trial in this matter, placed a phone call from prison to an unknown male wherein he provided a third

al temati ve for          s .c.'.s ~;injuries.NT.    11/12/2014 at 190. On the prison tape, defendant stated

that at some point before picking up the children from school, he returned home and noticed that the

doors to his home were open and that an intruder had broken in. Id. Defendant also stated that upon

hearing           s. c.       'crying, he ran upstairs and the male intruder hit him from behind and then

pointed a gun at him. Defendant further stated that the male intruder then ran into the room with the

child, defendant heardf           ~ .c-      [scream, and the intruder ran out. Id. Defendant concluded by

stating that before the intruder exited the house, he threatened defendant that ifhe told anyone what

happened he would kill "a family member." Id.



7
    At trial, •_  A• W 'Y • Ct~stified that the family dog remained on the porch during the incident that led to S   .c. 's
            "death.NT 11/13/2014 at 21.
                                                           7
Commonwealth v. Samuel Cabrera
       Dr. Mark Mangano,              s. c. '.s ;   pediatrician, examined him twice ante-mortem and

testified as the Commonwealth's       expert in the field of pediatric medicine.NT 11/12/13 at 97. Dr.

Mangano first saw       5   .c.       ion April 5, 2013 after his office was contacted by the Lankenau

Hospital care team, who also contacted the Department of Human Services (DHS), to schedule the

appointment. NT     11/12/13 at 88-89, 99. Dr. Mangano testified that during !\                   s .c . \ .s i /

examination, he was irritable and cried for most of the visit, as expected from a baby with NAS, but

he was also consolable and settled down after careful soothing. Id. at 100-101. Dr. Mangano opined

that irritability and crying caused by a healing rib and clavicle fracture would be very difficult to

distinguish from NAS associated irritability. Id. at 102. Because}       s. c .    fhad loss a significant

amount of weight since being discharged from Lankenau, he changed the baby's feeding regime and

scheduled a follow-up visit for April 9, 2013. Id. at 101-102.

       Dr. Aaron Rosen, an Assistant Medical Examiner, performed an autopsy oq)                   S. C. 1..s     I



body and prepared a report based on his findings and information received from the Children's

Hospital ofPhiladelphia(CHOP).         NT 11/12/2014 at38-40. Dr. Rosen, the Commonwealth's expert

in forensic pathology, concluded to a reasonable degree of medical certainty the child's death was

caused by multiple blunt impact injuries, and that the manner of death washomicide,                 Id. at 41.

During the autopsy Dr. Rosen observed and reported the following external and internal injuries:

                                                                                            1.S
abrasions and contusions (scrapes and bruises) below, above and adjacentto          S. C.          J right and

left eye and on his upper eyelid and right cheek. Id. at 42. Observation of/            s.c. '.s     . ,.torso

revealed a large area of pinkish red and several other contusions and scattered abrasions over his

abdomen and mid-chest area. Id. at 42-43. There were also several contusions on/                  s.c. '.s
extremities, specifically his left thigh, lower right knee, left foot, and toes and a laceration on his

right heel. Id at 43.       'S. c .    ::also suffered several severe internal injuries including five rib

                                                       8
Commonwealth v. Samuel Cabrera
fractures and a fractured clavicle (collar bone).        Id. at 44-46. One of the rib fractures and the fractured

collar bone showed evidence of new bone formation on top of old fractures which led Dr. Rosen to

conclude that there had been prior injury. Id. at 46-47.

         Dr. Rosen also observed several significant lacerations             or1     S   .c. '->    liver, one of which

was five centimeters long and the full thickness of the liver damaging multiple blood vessels. Id. at

47-48. The laceration's size led Dr. Rosen to opine that a severe amount ofblunttrauma was used to

cause that amount of damage to the liver. Id. at 48. Dr Rosen explained that the trauma to the liver

caused a hemorrhage and blood entered the abdominal cavity. Id at 49. Further observation of the

internal injuries led Dr. Rosen to conclude that exsanguination from heavy bleeding out of the

circulatory system and vessels into the abdomen resulted in significant blood loss and led to death.

Id at 50. Dr. Rosen testified that abdominal compartment syndrome (ACS) caused'                            S. c..      fto

go into shock and stop breathing. Id Dr. Rosen also described the efforts CHOP took in an attempt

to save'.!      s. c.   1
                            S , life, which included an operation, resuscitation and an incision in an attempt

to open the abdomen and relieve the bleeding and trauma. Id. at 51-53. Thus, external examination

revealed some bruising from medical intervention and possibly CPR. Id at 53-54.8

             Dr. Rosen explained that the elasticity of children's bones makes them very difficult to

fracture and doing so would require a significant amount of force. Id. at 57. He also added that such

force often occurs during a vehicular accident and is rarely the result ofimproper CPR. Id. Dr. Rosen

testified that defendant walking up the steps with'                s.c.       in his arms, tripping and dropping the

baby would not explain the injuries he observed. Id at 5 8. On the contrary, Dr. Rosen confirmed that

defendant punching                s .c .    at least twice would be consistent with the injuries suffered. Id
                                                           9




8
 Dr. Rosen however noted that CPR only accounted for some of the injuries on            S. C. ·~ mid-chest region and did
not explain the other significant injuries to rest of the body. N.T 11/12/13 at oo.
9Dr. Rosen further explained that if               fwas on a soft surface it would have likely taken more than two blows to
                                           s.c.
                                                               9
Commonwealth v. Samuel Cabrera
Dr. Rosen opined that!        s.   C.       .Avould have stopped breathing approximately twenty minutes

after the injuries were inflicted. Id. at 60. Finally, phenobarbital, a common medication used to treat

NAS and help babies get over addictions to drugs ingested during pregnancy to prevent withdrawal

symptoms, was found in             s . c . '.5    system at autopsy. N. T ll /12/13 at 99.

               III. STATEMENT OF MATTERS COMPLAINED OF ON APPEAL

       In accordance with      PA.    R.APP.     PROC.   1925 (b) defendant raised the following issues in his

    Statement of Matters Complained of on Appeal."

            a. The evidence presented by the Commonwealth was insufficient to prove
               beyond a reasonable doubt that appellant was guilty of third degree murder in
               that there was insufficient evidence of appellant's mens rea to prove malice.

            b. The Motions Court erred as a matter of law and violated appellant's rights
               under the federal and state constitutions when it denied his motion to
               suppress the statement given to P.O. Meissler from the SVU where appellant
               was not warned of his rights pursuant to Miranda prior to interrogation under
               circumstances under which any reasonable person would not have felt free to
               leave and thus was the equivalent of custody for Miranda purposes.

            c. The Motions Court erred as a matter of law and violated appellant's rights
               under the federal and state constitutions when it denied his motion to
               suppress his formal written statement and video statement (C-4; C-4A) as
               they were taken subsequent to a non-mirandized verbal statement and thus
               tainted.

            d. The Motions Court erred and abused its discretion by denying appellant's
               motion to preclude the prison tape from being played during the trial as it was
               not relevant or probative as it was, for example, neither an admission by a
               party opponent as to intent, or impeachment evidence, where appellant's
               defense was that the act which led to the death of his son was not done with
               malice and thus did not rise to third degree murder.

             e. The Motions Court erred and abused its discretion by grartinrr thP.
                f'ommcmwealth' s motion to allow the video of child witness Ii Pf. W. \J •
                            1Jo
                                be shown at trial and admitted into evidence, as it ranee 10
                meet me reuability criteria of the Tender Years Hearsay Act.


cause the injury, as opposed to if he was on a hard surface, like the ground. N. T 11/12/13 at 59. He reasoned that
sometimes children fall or are dropped and do not suffer injuries remotely similar toO s .. c.' ~ '. Id.
10
   The statement below was taken verbatim from defendant's filed Statement of Errors
                                                           10
 Commonwealth v. Samuel Cabrera
                                            IV. DISCUSSION

   Defendant now challenges the sufficiency of the evidence to support the verdict of murder in the

third degree. Further, he also challenges rulings of the motions court, including the denial of his

motion to suppress. Although this court did not preside over the motions hearing in this case, a

thorough review of the record and notes of testimony, reveals that defendant's claims lack merit.

   Our Supreme Court "has long recognized that judges of coordinate jurisdiction sitting in the

same case should not overrule each others' decisions." Commonwealthv. Starr, 541 Pa. 564, 573-74

(1995). "This rule, known as the "coordinate jurisdiction rule," is a rule of sound jurisprudence based

on a policy of fostering the finality of pre-trial applications in an effort to maintain judicial economy

and efficiency." Id The "coordinate jurisdiction rule falls squarely within the ambit of a generalized

expression of the "law of the case" doctrine." Id. at 574. "This doctrine refers to a family of rules

which embody the concept that a court involved in the later phases of a litigated matter should not

reopen questions decided by another judge of that same court or by a higher court in the earlier

phases of the matter." Id. "Among the related but distinct rules which make up the law of the case

doctrine are that ... upon transfer of a matter between trial judges of coordinate jurisdiction, the

transferee trial court may not alter the resolution of a legal question previously decided by the

transferor trial court." Id See Commonwealth v. Washington,428 Pa. 131, 133 n. 2, 236 A.2d 772,

773 n. 2 (1968) (citation omitted) (a trial judge cannot reverse on the same record at trial the decision

made after the pretrial suppression hearing that defendant's statement need not be suppressed);

Commonwealth v. Rolan, 2008 PA Super 291, 964 A.2d 398, 404 (2008) (in permitting testimony,

trial court was following the pretrial ruling of a judge of the same court of common pleas).

            A. Sufficiency of the evidence

        "In considering a challenge to the sufficiency of the evidence, the Court must decide whether

                                                    11
 Commonwealth v. Samuel Cabrera
the evidence at trial, viewed in the light most favorable to the Commonwealth, together with all

reasonable inferences there from, could enable the fact-finder to find every element of the crimes

charged beyond a reasonable doubt." Commonwealthv. Walsh, 36 A.3d613, 618 (Pa. Super. 2012)

(citations omitted). "In assessing the sufficiency of evidence, a reviewing court may not weigh the

evidence and substitute its own judgment for that of the fact-finder, who is free to believe all, part, or

none of the evidence." Commonwealth v. Ramtahal, 33 A.3d 602, 607 (Pa 2011). "The facts and

circumstances established by the Commonweal th need not preclude every possibility of innocence."

Commonwealth v. DiStefano, 782 A.2d 574, 582 (Pa. Super. 2001), appeal denied, 806 A.2d 858

(Pa. 2002). "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." Commonwealth v. Cassidy, 668 A.2d 1143, 1144 (Pa. Super.

1995), appeal denied, 681 A.2d 176 (Pa. 1996) (citation omitted). ''The Commonwealthmay sustain

its burden of proving every element of the crime beyond a reasonable doubt by means of wholly

circumstantial evidence." Id. "Moreover, in applying the above test, the entire record must be

evaluated and all evidence actually received must be considered." Commonwealth v. Muniz, 5 A. 3d

345, 348 (Pa. Super.2010), appeal denied, 19 A.3d 1050 (Pa. 2011) (citation omitted). Finally, "[i]f

the record contains support for the verdict, it may not be disturbed." Commonwealth v. Adams, 882

A.2d 496, 499 (Pa. Super. 2005) (citation omitted).

        Here, defendant challenges his conviction for third-degree murder. Specifically, defendant

claims that "[t]he evidence presented by the Commonwealth was insufficient to prove beyond a

reasonable doubt that [he] was guilty of third degree murderin that there was insufficient evidence of

 appellant's mens rea to prove malice." Statement of Errors ~ a This claim is without merit.




                                                     12
 Commonwealth v. Samuel Cabrera
        In this case, the Commonwealth proved beyond a reasonable doubt that defendant brutally

beat his infant son to death. To sustain a conviction for murder of the third degree, "the

Commonweal th need only prove that the defendant killed another person with malice aforethought."

Commonwealth v. Fisher, 622 Pa. 366, 375 (2013), cert. denied sub nom., Bestv. Pennsylvania, 134

S. Ct. 2314 (2014) (internal citations omitted). Our Supreme Court has held that "malice

comprehends not only a particular ill-will, but ... [also a] wickedness of disposition, hardness of

heart, recklessness of consequences, and a mind regardless of social duty, although a particular

person may not be intended to be injured." Fisher, 622 Pa. at 375. Thus, "[m]alice exists where the

principal acts in gross deviation from the standard of reasonable care, failing to perceive that such

actions might create a substantial and unjustifiable risk of death or serious bodily injury."

Commonwealth v. Kellam, 719 A.2d 792, 797 (Pa. Super. 1998). Likewise, "[m]alice may also exist

where the omission or failure to perform a legal duty was willful and will probably result in the death

of the victim." Id. Moreover, "third-degree murder is a killing done with legal malice but without the

specific intent to kill required in first-degree murder." Commonwealth v. Kellam, 719 A.2d 792, 797

(Pa. Super. 1998). In short, the Court has noted that:

        [T]hird degree murder is not a homicide that the Commonwealth must prove was
        committed with malice and without a specific intent to kill. Instead, it is a homicide
        that the Commonwealth must prove was committed withrnalice, but one with respect
        to which the Commonwealth need not prove, nor even address, the presence or
        absence of a specific intent to kill. Indeed, to convict a defendant for third degree
        murder, the jury need not consider whether the defendant had a specific intent to kill,
        nor make any finding with respect thereto.

Fisher, 622 Pa. at 375 (citations omitted).

        The evidence as discussed below shows that defendant provided three different versions of

events in an attempt to mask the truth, that he was alone with     S. C •   'when the child sustained

several fatal injuries of a brutal nature as detailed in the autopsy report. Indeed, Dr. Aaron Rosen

                                                  13
Commonwealth v, Samuel Cabrera
testified to a reasonable degree of medical certainty that the baby's death was caused by multiple

blunt impact injuries. N. T 11/12/2014 at 3 8-40. Dr. Rosen described several severe internal injuries

to'    S.   c. 1     .'   including five rib fractures, and a fractured collar bone. Id. at 44-46. Dr. Rosen also

described several significant lacerations on                S. c. 15    liver, one of which was five centimeters

long, the full thickness of the liver, caused by a severe amount ofblunt trauma. Id Additionally, Dr.

Rosen explained how one of the rib fractures and the fractured collar bone had new bone formation

on top of old fractures which showed that there had been prior injury. Dr. Rosen further stated that

the elasticity of children's bones makes them very difficult to fracture, and the injuries suffered by

      S. C.,       required a significant amount of force that is often the result of a vehicular accident. Id

at 57.

            Further, evidence to support the verdict of murder in the third-degree must include the three

different versions of events defendant provided on three separate occasions to explain!                 s. c . \ .s
injuries. To account for the severe internal injuries that!                S   .c.   /suffered, including five rib

fractures and a fractured collar bone, defendant first stated to homicide detectives that he accidentally

dropped the child twice while carrying him on the steps. When Detective Sierra responded that a

medical examination would be able to disprove that account, defendant created a different account of

 what happened. Defendant proceeded to tell detectives that while trying to remove the family dog

 from the bed              s . C.      was lying on he accidentally punched the child twice and neglected to

 seek medical attention after observing him in distress. Defendant stated to detectives, "I swung my

 left hand (indicating using the inside part of a closed fist) striking my baby on his left arm ... When I

 hit him with the first punch I just thought I knocked the wind out of him by accident." Allegedly,

 after punching!             S.   c . \' defendant   did not immediately realize that the child was having trouble

 breathing, so he did not seek medical attention. However, once defendant realized that.                   s.c.
                                                              14
 Commonwealth v. Samuel Cabrera
was out of breath "like when someone hits us in our stomach[,]" although he "didn't think anything

was severely wrong with him ... [he] put pressure on             S. C.   's I' chest and stomach" until he

began to cry, but still did not "call [an] ambulance or doctor knowing that [his] son stopped

breathing because of [him]."      Clearly that conduct and subsequent failure to obtain immediate

medical care for his son meets the Kellam standard of culpability. Especially when in reality, young

A · W • V • testified that the dog was downstairs on the porch when she followed defendant upstairs.

She further testified that defendant pushed her out of the bedroom but that she heard defendant tell

    S.   c.   0 to   be quite, followed by the child choking and gasping for air. Finally, while

incarcerated and awaiting trial defendant concocted yet a third version of events in which he blamed

the child's injuries on an armed intruder.

         Assuming arguendo that it was not defendant's conscious purpose to bring about the death of

    S•   c. f the     convincing evidence shows that defendant acted in gross deviation from the

 standard of reasonable care and failed to perceive that his actions might create a substantial and

 unjustifiable risk of death or serious bodily injury   tq    S .c.      . Moreover, by his own admission,
 defendant's conduct constituted malice in that he failed to perform his parental duties to obtain

 medical care immediately after noticing that       s . c..     :,7was having trouble breathing. "I started

 CPR. I panic[ked] because I didn't call the ambulance or doctor knowing that my son stopped

 breathing because of me." Thus, malice existed not only where defendant willfully struck his infant

 son multiple times, but also where his willful omission and failure to perform his parental duty

 resulted in the death of his son.

          Thus, it is indisputable that the Commonwealth has proven that the defendant killed/ S .c..

          with malice aforethought. First, as stated above, defendant was alone with               5 . C.
 when the child sustained a brutal beating resulting in death. Additionally, not only did defendant's

                                                        15
 Commonwealth v. Samuel Cabrera
actions reflect malice aforethought, but his failure to act also manifested ill-will and a wickedness of

disposition, hardness of heart, recklessness of consequences, and a mind regardless of social duty

evidencing malice.

           B. Motions to Suppress

        "In reviewing a ruling on a suppression motion, the standard of review is whether the factual

findings and legal conclusions drawn therefrom are supported by the evidence." Commonwealth v.

Kuzmanko, 709 A.2d 392, 396 (Pa. 1998). "[W]here the record supports the findings of the

suppression court, [the reviewing court] is bound by those facts and may reverse only if the legal

conclusions drawn therefrom are in error." Id. Thus the Superior Court considers "whether the

suppression court properly applied the law to the facts of the case." Commonwealth v. Ruey, 5 86 Pa.

230, 240 (2006). "In reviewing the denial of a [defendant's] motion to suppress evidence, [the

Superior Court] consider[s] only the evidence of the prosecution's witnesses and so much of the

evidence for the defense as, fairly read in the context of the record as a whole, remains

uncontradicted." In re JV, 762 A.2d 376, 379 (Pa. Super. 2000) (citations omitted). "Once a motion

to suppress evidence has been filed, it is the Commonwealth's burden to prove, by a preponderance

of the evidence, that the challenged evidence was not obtained in violation of the defendant's rights."

Commonwealth v. Wallace, 615 Pa. 395, 407 (2012)(citing PA. R.CRIM. PROC. 581(H)).

        To begin, defendant claims that he was deprived of his federal and state constitutional rights

"where [he] was not warned of his rights pursuant to Miranda prior to interrogation under

circumstances under which any reasonable person would not have felt free to leave and thus was the

equivalent of custody for Miranda purposes." Statement of Errors ~ b. For the reasons stated below,

this claim is meritless.



                                                   16
Commonwealth v. Samuel Cabrera
       "[I]t is well-settled that the police are only required to advise a person of his Miranda rights

if that person is subjected to custodial interrogation." Commonwealth v. Busch, 713 A.2d 97, 100

(Pa Super. 1998). Thus, to "trigger the safeguards of Miranda, there must be both custody and

interrogation." Commonwealth v. Cruz, 71 A.3d 998, 1003 (Pa. Super.2013). "As a general rule, the

prosecution may not use statements, whether inculpatory or exculpatory, stemming from a custodial

interrogation of a defendant unless it demonstrates that he was apprised of his right against self-

incrimination and his right to counsel." Commonwealth v. Umstead, 916 A.2d 1146, 1149 (Pa.

Super. 2007). "[P]olice detentions in Pennsylvania become custodial when, under the totality of the

circumstances, the conditions and/or duration of the detention beoome so coercive as to constitute the

functional equivalent of arrest." Commonwealth v. Turner, 772 A.2d 970, 973 (Pa. Super. 2001)

(citations omitted). An arrest is defined as "an act that indicates an intention to take a person into

custody or that subjects the person to the will and control of the person making the arrest."

Commonwealth v. Gwynn, 555 Pa. 86, 723 A.2d 143, 148 (1998).

       The Superior Court has noted that"[ a]n interrogation for the purposes of Miranda refers not

only to express questioning, but also to any words or actions on the part of police (other than

normally attendant to arrest and custody) that the police should know are reasonably likely to elicit

an incriminating response from the suspect." Commonwealth v. Turner, 772 A.2d 970, 974 (Pa.

Super. 2001) "Interrogation is defined as "police conduct calculated to, expected to, or likely to

evoke admission." Commonwealth v. Snyder, 60 A.3d 165, 170(Pa. Super. 2013), appeal denied,

620 Pa. 731 (2013). In effect, "[t]he test for determining whether a suspect is being subjected to

custodial interrogation so as to necessitate Miranda warnings is whether he is physically deprived of

his freedom in any significant way or is placed in a situation in which he reasonably believes that his

freedom of action or movement is restricted by such interrogation." Commonwealth v. Chacko, 500

                                                  17
Commonwealth v. Samuel Cabrera
Pa. 571, 577 (1983) (citations omitted). Simply put, "[t]he test focuses on whether the individual

being interrogated reasonably believes his freedom of action is being restricted." Id The Superior

Court has observed that:

               The factors that the court considers to determine whether there has
               been a custodial interrogation include: the basis for the detention; its
               length; its location; whether the suspect was transported against his or
               her will, how far and why; whether restraints were used; whether the
               law enforcement officer showed, threatened or used force; and the
               investigative methods employed to confirm or dispel suspicions.

Commonwealth v. Turner, 772 A.2d 970, 973 (Pa. Super. 2001).

       In this case, Officer Meissler responded to a report of suspected abuse regarding a baby in the

Intensive Care Unit at CHOP and went to the hospital in order to conduct an informational interview

and gather the facts surrounding the incident. Officer Meissler arrived at the hospital and questioned

defendant, the father .of the victim, as part of a routine investigation of child abuse allegations.

Defendant remained on the same floor where/         s~c.      11was   being treated and was questioned
                                                              /

about the incident in a non-threatening manner in a hospital family room. Defendant gave a

statement detailing his account of events on the day of the incident. However, he never mentioned

that he inflicted any injury to     S, C •     ,- At the motions hearing, defendant argued that the

foregoing amounted to a custodial interrogation which triggered the necessity of Miranda warnings

because a reasonable person under those circumstances would not have felt free to leave. NT

11/7/13 at 93-94. Defendant conceded that he was not in a police station or handcuffed. However, he

argues that Officer Meissler did not explicitly inform him that he was free to leave and the alleged

detention amounted to the functional equivalent of an arrest which physically deprived him of his

freedom while he was subject to interrogation. Id. To the contrary, the prosecutor argued that

defendant was not subject to custodial interrogation. Id at 95-96. Further, the prosecutor argued that


                                                   18
Commonwealth v. Samuel Cabrera
defendant was not a suspect, and he was merely being questioned for investigative and fact gathering

purposes. Id.

       In denying defendant's     motion to suppress the statement, the motions court correctly

reasoned that defendant's treatment was the same as any other witness during the early stages of an

investigation. Id. at 97. The motions court held that even if the questioning escalated into an

interrogation, defendant was not in custody. The motions court held that, under the totality of the

circumstances, defendant cannot be said to have been in custody because the conditions and duration

of the questioning never became so coercive as to constitute the functional equivalent of arrest.

Moreover, in attempting to gather an accurate account of the facts, Officer Meissler had no reason to

believe that the questions he asked were reasonably likely to elicit an incriminating response from

defendant. See Commonwealth v. Fento, 363 Pa. Super. 488 (1987) (holding that police officer's

questioning of driver as part of routine accident investigation while driver was being treated in

hospital was not "custodial interrogation" requiring Miranda warnings).

        In sum, the motions court concluded that defendant was not subject to custodial interrogation

for the following reasons: the length of the interview was not excessive, its location was a

nonthreatening hospital family room, defendant was not coerced against his will, no restraints were

used, Officer Meissler did not show, threaten or use force, and defendant was not a suspect at the

time of the interview. Thus, defendant was not entitled to Miranda warnings.

        Defendant next challenges his formal written and video statement given to homicide

detectives. Specifically, he claims "his formal written statement and video statement ... were taken

 subsequent to a non-mirandized verbal statement and [are] thus tainted." Statement of Errors ~c.

This claim also lacks merit. Evidence is "fruit of the poisonous tree" and thus subject to suppression

 if the evidence comes to light by way of exploitation of the illegality and was generally inadmissible

                                                   19
 Commonwealthv. Samuel Cabrera
at trial. Commonwealth v. Abbas, 862 A.2d 606, 610 (Pa. Super. 2004) (citing Commonwealth v.

Brown, 700 A.2d 1310 (Pa.Super.1997); Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9

L.Ed.2d 441 (1963)).


       The evidence at the motions hearing established that defendant was transported to the

homicide unit on August 10, 2013 around 6:50 p.m. NT 11/7/2014 at 42, 54; NT 11/12/2014 at

154-55. Detective William Sierra testified that after arrival, defendant was taken to an interview

room where he was first orally advised of his Miranda rights from the standard police interrogation

form and asked whether he wished to waive his rights. Id. Only after indicating that he wished to

waive his rights did the interview commence. NT. 11/7/2014 at 55. Defendant subsequently gave his

first explanation for/\   s . c. "s   !,'injuries, and stated that the child was injured when defendant

tripped on loose carpeting and dropped him twice.NT 11/7/2014at 55. Detective Sierra then replied

"if that's your story, we'll take it, but we'll be able to prove scientifically and medically that's not

how the injuries were sustained." NT 11/12/2014 at 157.

        Detective Sierra further testified that defendant was later given formal written Miranda

warnings at 10: 19 p.m. During the issuance of these warnings Detective Sierra explained to

defendant that they were going to discuss the death of three-month-old'       'S , C.   f, and then read

defendant his Miranda rights. N.T 11/7/2014 at 57-61. Defendant also read the warnings and waived

them in writting before signing and dating the forms at 10:27 p.m. Id. Detective Sierra testified that

each time defendant was issued Miranda rights, both oral and written, defendant stated that he fully

understood his rights as they were explained to him and responded with identical answers. N. T

11/7/2014 at 68. When defendant was asked "do you know who is personally responsible for the

sudden death of your son?[,]" defendant stated, "[y]es, but it was an accident. I swung at my dog to


                                                   20
Commonwealth v. Samuel Cabrera
get him away from the baby and I hit my son in the side [twice] because the dog wasn't listening."

N.T 11/7/2014 at 68. Significantly, at the conclusion of defendant's interview, after reviewing his

statement and prior to signing the video statement consent form, when asked how he thought he was

treated by the detectives, defendant responded "[flair, I could have been treated worse. Due to the

circumstances,     I was treated with respect and as a person, not for what was going on." N. T

11/7/2014 at 71.

    During the motions hearing, defendant conceded that he waived written Miranda warnings at

approximately 10:30 p.m. but argued that despite Detective Sierra's testimony there isno evidence

that he received oral Miranda warnings prior to making his first statement. N.T 11/7/13 at 99.

Defendant now claims that his formal written statements were made only subsequent to a non-

mirandized oral statement and as such are tainted. The prosecutor countered by pointing out that

Detective Sierra's oral administration of Miranda warnings, which was actually memorialized in

defendants formal statement, negates the contention that defendant was not given the first set of

Miranda warnings. Id. at 91, 99-100. Awarding deference to tbe credibility determination of the

motions court, which found Detective Sierra to be "completely 100% credible," this court agrees that

it is not an unreasonable practice to give initial Miranda warnings orally. Commonwealth v. Hanible,

836 A.2d 36, 40 (Pa. 2003) (finding that "credibility determinations are solely within the province of

the fact-finder, and an appellate court may not reweigh the evidence and substitute its judgment for

that of the finder of fact"). Thus, the record supports the motions court's finding that defendant was

given Miranda warnings prior to both the informal oral interview and the subsequent formal written

statement. Id at 100.

    Defendant alternatively claims that his waiver of the formal written Miranda rights was not

voluntary. "The determination [of] whether an accused has knowingly and voluntarily waived his

                                                  21
 Commonwealth v. Samuel Cabrera
constitutional rights depends on the facts of each particular case." Commonwealth v. Cohen, 53 A3d

882, 886 (Pa. Super. 2012) (citations omitted). "It is [however] the Commonwealth's burden to

establish whether a defendant knowingly and voluntarily waived his Miranda rights." Id at 885-86.

"In order to do so, the Commonwealth must demonstrate that the proper warnings were given, and

that the accused manifested an understanding of these warnings." Id. The Superior Court has held

that a defendant has "explicitly waived his Miranda rights by clearly and unequivocally indicating

that he understood his rights and then responding to the officer's questions." Id. (emphasis added).

"Our Supreme Court elaborated that an "explicit waiver" meant "an outward manifestation of a

waiver such as an oral, written or physical manifestation." Id. For example, the Supreme Court has

found that a defendant "sufficiently manifested the intent to waive his rights" where he ''twice stating

he understood his Miranda rights after they were read to him, and answer[ed] questions

immediately."Id    (emphasis added). Likewise, our Supreme Court has also concluded that a

"defendant sufficiently manifested his intent to waive his Miranda rights where those rights were

read to him, he indicated one time that he understood them, and then he answered the questions

asked by police." Id. (citing Commonwealth v. Baez, 21 A.3d 1280, 1282 (Pa. Super. 2011))

(emphasis added). Here, Detective Sierra testified that he read defendant his Miranda rights, after

which defendant indicated that he understood those rights and agreed to answer the questions asked

by the detective. Fully crediting Detective Sierra's testimony, the motions court found the absence of

any "hint of involuntariness"     in the issuance of both oral and written Miranda warnings. NT.

 11/7/2014 at 102. As the motions court noted, the above, coupled with viewing the video statement,

eliminates any question as to whether defendant made a knowing and voluntary statement. Id.

Indeed, during his Mirandized statement the defendant told "a story [ complete with demonstrations]

that, frankly, he had a lot of time to concoct." Id. Under our Miranda precedents, defendant

                                                   22
 Commonwealth v. Samuel Cabrera
unequivocally manifested his intent to and did waive his Miranda rights. For the reasons discussed

above, the findings of fact and conclusions of law made by the motions court are supported by the

record.

          Next, defendant asserts that the prison tape was not relevant or probative "where [his]

defense was that the act which led to the death of his son was not done with malice and thus did not

rise to third degree murder." Statement of Errors j d. This claim lacks merit.

          On a challenge to a trial court's evidentiaryruling, [the Superior Court's] standard ofreview

is one of deference." Commonwealth v. Herb, 852 A.2d 356, 363 (Pa. Super. 2004). "Thus the

Superior Court's standard ofreview is very narrow; reversal may only occur upon a showing that the

trial court clearly abused its discretion or committed an error of law." Id. "An abuse of discretion is

not merely an error of judgment, but is rather the overriding or misapplication of the law, or the

exercise of judgment that is manifestly unreasonable ...         as shown by the evidence of record.

Commonwealth v. Cameron, 780 A.2d 688, 692 (Pa. Super. 2001)." "The threshold inquiry with

admission of evidence is whether the evidence is relevant." Commonwealthv. Stokes, 78 A.3d 644,

654 (Pa. Super. 2013), appeal denied, 89 A.3d 661 (Pa. 2014). "Evidence is relevant if it logically

tends to establish a material fact in the case, tends to make a fact at issue more or less probable, or

supports a reasonable inference or presumption regarding the existence of a material fact."

Commonwealth v. Spiewak, 533 Pa. 1, 8, 617 A.2d 696, 699 (1992). "In addition, evidence is only

admissible where the probative value of the evidence outweighs its prejudicial impact." Stokes, 78

A.3d at 654. "However, where the evidence is not relevant there is no need to determine whether the

probative value of the evidence outweighs its prejudicial impact." Id. Under Pennsylvania law,

generally, "[t]ape recordings are admissible in evidence when they are properly identified and are a

true and correct reproduction of the statements made, and when the voices are properly identified."

                                                    23
 Commonwealth v. Samuel Cabrera
Commonwealth v. Johnson, 450 Pa. 575, 578 (1973). "When properly identified as true and correct

reproductions, and when the voices are properly identified, such tape recordings are admissible."

Commonwealth v. Leamer, 449 Pa. 76, 82 (1972).

        Here, defendant does not challenge the authenticity of the prison tape, nor does he argue that

he is not correctly identified as the declarant. Instead, defendant suggests that the prison tape, on

which he concocted yet a third alternative explanation as to howP                S. C -     received his fatal

injuries, was not relevant or probative because his "defense was that the act which led to the death of

his son was not done with malice and thus did not rise to third degree murder." Certainly, the

evidence in which defendant asserts that he did not actually inflict the injuries which led to

s _ c , '.srdeath   is relevant in that it logically tends to establish a material fact in the case, make a fact

at issue more or less probable, or supports a reasonable inference or presumption regarding the

existence of a material fact-the presence or absence of malice. As the motions court explained, the

prison tape is unequivocally relevant and admissible because it "presents [defendant] coming up with

still another explanation for how]              s . c . '..s injuries] happened, which has nothing to do with

anything that he said in the prior admissible statements." NT 11/7/2015 at 125. Finally, the motions

court found that the probative value of the prison tape with defendant's fabrication of a third

alternative to          zs , c   .1   s   'fatal injuries far outweighed its prejudicial impact. Thus, absent

overriding misapplication of the law or the exercise of judgment that is manifestly unreasonable, the

motions court's evidentiary rulings must stand.

             C. Tender Years Hearsay Act

        Finally, defendant raises an evidentiary claim under the Tender Years Hearsay Act.

Specifically, defendant claims that "[tjhe Motions Court erred and abused its discretion by granting

the Commonwealth's motion to allow the video testimony of child witnessi'                   A.W.V.

                                                           24
 Commonwealth v. Samuel Cabrera
be shown at trial and admitted into evidence, as it failed to meet the reliability criteria of the Tender

Years Hearsay Act." Statement of Errors     1 e. For the following   reasons, this claim lacks merit.

        "An appellate court's standard of review of a trial court's evidentiary rulings, including

rulings on the admission of hearsay and determinations of witness competency, is abuse of

discretion." Commonwealth v. Walter, 93 A.3d 442, 449 (Pa. 2014) (citing Commonwealth v.

Delbridge, 578 Pa. 641, 855 A.2d 27, 34 n. 8 (2003)). "Questions concerning the admissibility of

evidence lie within the sound discretion of the trial court." Commonwealth v. Lyons, 833 A.2d 245,

255 (Pa. Super. 2003). The Superior Court "will not reverse the trial court's decision to admit

evidence pursuant to the tender years statute absent an abuse of discretion." Commonwealth v.

Curley, 910 A.2d 692, 697 (Pa. Super. 2006).

        "Generally, a witness is presumed competent to testify, and the burden falls on the objecting

party to demonstrate that a witness is incompetent." Commonwealth v. Walter, 93 A.3d 442, 451 (Pa.

2014) (citing PA. R.Evm. 601 (b)) (holding that a child need not be deemed competent to testify as a

witness in order for the trial court to admit the child's out-of-court statements into evidence pursuant

to the Tender Years Hearsay Act). Under Rule 601(b), a person may be found incompetent to testify

if the Court determines that, because of ... immaturity, the person: "(l) is, or was, at any relevant

time, incapable of perceiving accurately; (2) is unable to express himself or herself so as to be

understood either directly or through an interpreter; (3) has an impaired memory; or (4) does not

sufficiently understand the duty to tell the truth." PA.R.Evm. 601(b).

                However, where a child under the age of 14 is called to testify as a
                witness, the trial court must make an independent determination of
                competency, which requires a finding that the witness possess (1) a
                capacity to communicate, including both an ability to understand
                questions and to frame and express intelligent answers; (2) the mental
                capacity to observe the actual occurrence and the capacity of


                                                    25
Commonwealth v. Samuel Cabrera
                remembering what it is that he or she is called to testify about; and (3)
                a consciousness of the duty to speak the truth.

Walter, 93 A.3d at 451. "Unlike a determination of competency, which pertains to a witness's

capacity to testify, the Tender Years Hearsay Act concerns the admissibility of out-of-court

statements made by a child victim or witness to third parties." Id. Our Supreme Court has held that

" [t]he admissibility of this type of hearsay is determined by assessing the particularized guarantees of

trustworthiness surrounding the circumstances under which the statements were uttered to the person

who is testifying." Id

        The tender years exception is codified at 42 PA. CONS. STAT. ANN. § 5985.1 and provides

in relevant part:

                An out-of-court statement made by a child victim or witness, who at
                the time the statement was made was 12 years of age or younger,
                describing any of the offenses enumerated in 18 Pa.C.S. Chs. 25
                (relating to criminal homicide) ... not otherwise admissible by statute
                or rule of evidence, is admissible in evidence in any criminal or civil
                proceeding if:
                         ( 1) the court finds, in an in camera hearing, that the evidence
                         is relevant and that the time, content and circumstances of the
                         statement provide sufficient indicia ofreliability; and
                         (2) the child either:
                                   (i) testifies at the proceeding; or
                                   (ii) is unavailable as a witness.

42 PA. CONS. STAT. ANN. § 5985.1 (West). "Any statement admitted under§ 5985.l must possess

sufficient indicia of reliability, as determined from the time, content, and circumstances of its

making." Commonwealth v. O'Drain, 829 A.2d 316, 320 (Pa. Super. 2003). "There are several

factors a court may consider in determining reliability under§ 5985.1, including, but not limited to,

"the spontaneity and consistent repetition of the statement(s); the mental state of the declarant; the

use of terminology unexpected of a child of similar age; and the lack of a motive to fabricate." Fidler

 v. Cunningham-Small, 871 A.2d 231, 235 (Pa. Super. 2005).

                                                    26
 Commonwealth v. Samuel Cabrera
                 Thus, with respect to a child witness, one of the primary concerns
                 Rule 601 is designed to address is a child's ability to perceive and
                 remember events about which the child later testifies. Conversely, in
                 determining whether out-of-court statements of a child contain
                 "particularized guarantees of trustworthiness surrounding the
                 circumstances under which the statements were uttered to the person
                 who is testifying," Delbridge, 855 A.2d at 45, and, therefore, are
                 admissible under the TYHA, the focus is on the truthfulness of the
                 statements, which is assessed by considering the spontaneity of the
                 statements; the consistency in repetition; the mental state of the child;
                 the use of terms unexpected in children of that age; and the lack of a
                 motive to fabricate.

Walter, 93 A.3d at 452-53.

        In the this case, the Commonwealth              sought to introduce into evidence a DVD of the

statement of then eight-year-old          A. w, V. ; jbeing interviewed by the Philadelphia Children's

Alliance on October 28, 2013, six months after the murder.NT. 11/7/2014 at 102-105. The video

filmed only the children's alliance interviewer and the child witness, although the prosecutor, an

appointed child advocate, assigned detective and a social worker from the children's alliance

observed the interview from another room on a closed circuit television. Id. at 105-106:

        Defendant argues that the video of child witness(}                A. W . V ..      should not have been ·

shown at trial or admitted into evidence because it failed to meet the reliability criteria of the TYRA

Statement of Errors ~ e. After reviewing the TYHA and relevant case law, the motions court

however, found that the DVD of} A. \N, V;ii;interview and the evidence contained therein11 met the

statutory requirements.NT.        11/10/2014 at 5. The motions court found, and this court agrees that said

evidence was relevant and that the time, content and circumstances of the statement provided a

sufficient indicia ofreliability. Id. at 5-6. Based on the spontaneity and consistent repetition of the

statement on the video which mirrored            A. W. V .1iih court testimony, the competent       mental state of


11
  The motions court did however exclude portions of the child witness's testimony that referenced allegations ofabuse
involving defendant and the witness's other younger siblings.NT 11 /l 0/2014 at 6.
                                                         27
Commonwealth v. Samuel Cabrera
A. w. v.   '., the   use of terminology expected of a child of similar age, and the lack of a motive to

 fabricate, this court finds truthfulness in the statements which were properly admitted by the motions

 court under the TYHA. N. T. 11I13/2014 at 1- 7.

                                              V. CONCLUSION

     For the aforementioned reasons, this court's judgment of sentence should be AFFIRMED.



                                                                  BY THE COURT



 September 30, 2015
                                                                   1
                                                                  SANDY L.V. BYRD, J.




                                                     28
 Commonwealth v. Samuel Cabrera
  Commonwealth v. Samuel N. Cabrera                               CP-5l-CR-0009793-2013
                                                                  511 EDA 2015




                                  PROOFOF SERVICE

        I hereby certify that I am this day serving the foregoing Court Opinion upon the
person(s), and in the manner indicated below, which service satisfies the requirements of
PA. R. CRIM.PROC. 114:


Defense Counsel:        Isla A. Fruchter, Esquire
                        Assistant Defender, Appeals Division
                        Defender Association of Philadelphia
                         1441 Sansom Street
                        Philadelphia, PA 19102

Type of Service:        (x) First Class Mail          ( ) Certified   ( ) Personal Service


District Attorney:      Hugh J. Bums, Jr., Esquire
                        Chief, Appeals Unit
                        Philadelphia District Attorney's Office
                        Three South Penn Square
                        Philadelphia, PA 19107-3499

Type of Service:        (x) First Class Mail          ( ) Certified   ( ) Personal Service

Defendant:              Samuel N. Cabrera
                        Inmate No. LW-0609
                        SCI- Forest
                        286 Woodland Drive
                        P.O. Box 307
                        Marienville, PA 16239-0307

Type of Service:        (x) First Class Mail          ( ) Certified   ( ) Personal Service




Date:   September 30, 2015


        fJ),(
Law Clerk's Signature
                     FIRST JUDICIAL   DISTRICT   OF PENNSYLVANIA
                             COURT    OF COMMON       PLEAS
                                 JUDICIAL   CHAMBERS




  SANDY L.V. BYRD                                             THE JUSTICE JUANITA KIDD STOUT CENTER
       JUOOE                                                            FOR CRIMINAL JUSTICE
                                                                   1301 FILBERT STREET, SUITE 1420
                                                                       PHILADELPHIA, PA 19107
                                                                          (215) 683-7157


                            FILED                                     FAX: (215) 683-7159
                                                              WEBSITE:HTTP://COURTS.PHILA.GOV
                                                          E-MAIL: SANDYLV .B YRD@COURTS.PHILA.GOV

                             SEP 3 0 2015
                         Criminal Appeals Unit                  September 30, 2015
                      First Judicia\ District of PA
Isla A. Fruchter, Esquire
Assistant Defender, Appeals Division
Defender Association of Philadelphia
1441 Sansom Street
Philadelphia, PA 19102

       Re: Commonwealth v. Samuel N Cabrera, CP-5l-CR-0009793-2013
                                             511 EDA 2015



Dear Ms. Fruchter:

      Enclosed herein please find a true and correct copy of the Court's Opinion in the
above-captioned matter.


                                                                Sincerely,




Enclosure


cc:    Hugh J. Burns, Jr., Esquire, Chief, Appeals Unit, District Attorney's Office
       Samuel N. Cabrera, Defendant
                         FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
                                  COURT OF COMMON      PLEAS
                                     JUDICIAL   CHAMBERS




      SANDY L.V. BYRD                                          THE JUSTICE JUANITA KIDD STOUT CENTER
           JUPGE                                                          FOR CRIMINAL JUSTICE
                                                                    1301 FILBERT STREET, SUITE 1420
                                                                         PHILADELPHIA, PA 19107
                                                                           (215) 683-7]57   '
                                                                         FAX: (215) 683-7159
                                                                 WEBSITB:HTTP://COURTS.PHILA.GOV
                                                             E-MAIL: SANDYLV.BYRD@COURTS.PHlLA.GOV


                                                            September 30, 2015

Lisa Eldrige
Case Flow Manager
Superior Court of Pennsylvania
530 Walnut Street, Suite 315
Philadelphia, PA 19106


RE: Commonwealth v. Samuel N. Cabrera, CP-51-CR-0009793-2013, 5Jl EDA 2015


Dear Ms. 'Eldrigel:


        In regards to your notice of June I, 2015, please be advised that an opinion was filed in ·
the above-captioned case today. A copy of the opinion is enclosed. By this letter, I am requesting
that the court administrator expedite return of these records to the Superior Court.


       Thank you for your courtesy in this matter.




cc:    Natasha Lowe, Esquire, Appeals Unit
