J-S61041-14

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,             :     IN THE SUPERIOR COURT OF
                                          :          PENNSYLVANIA
                      Appellee            :
                                          :
                v.                        :
                                          :
JESSICA ELIZABETH RHODES,                 :
                                          :
                     Appellant            :      No. 834 WDA 2014


       Appeal from the Judgment of Sentence Entered January 23, 2014,
               In the Court of Common Pleas of Fayette County,
             Criminal Division, at No(s): CP-26-CR-0000120-2013

BEFORE: FORD ELLIOTT, P.J.E., WECHT, and STRASSBURGER,* JJ.

MEMORANDUM BY: STRASSBURGER, J.:                FILED NOVEMBER 10, 2014

        Jessica Elizabeth Rhodes (Appellant) appeals from the judgment of

sentence entered January 23, 2014, following her convictions for aggravated

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

recklessly endangering another person (REAP).1 We affirm.

        The certified record reveals the following facts. On December 1, 2012,

Appellant brought her 14-month-old son to the emergency room at

Uniontown Hospital. Appellant told emergency room staff that the child fell

and struck his head on a hard floor, rendering him unresponsive. Uniontown

Hospital treating physician, Dr. Bruce Teich, determined that the child had

significant intracranial bleeding. Due to the severity the child’s injuries, he

was flown to the Children’s Hospital of Pittsburgh for treatment. The child


1
    18 Pa.C.S. §§ 2702(a)(1), 2701(b)(2), 4304(b), and 2705, respectively.
* Retired Senior Judge assigned to the Superior Court.
J-S61041-14


was in critical condition and comatose upon his arrival at Children’s Hospital.

Additional testing revealed that he suffered a subdural hematoma and

extensive retinal hemorrhaging.

       Believing that Appellant’s explanation did not account for the actual

injuries sustained, Dr. Teich contacted Fayette County Children and Youth

Services (CYS) to report suspected child abuse. In response, Pennsylvania

State Police Troopers Daniel Boyd and John Krause twice interviewed

Appellant at Children’s Hospital, once on the day of the incident, and again

on December 5, 2012. During the second interview, Appellant admitted to

the troopers that after her child fell, she shook him twice to stop him from

crying. As a result of this statement, Appellant was arrested and charged

with the above-mentioned offenses.

      On March 12, 2013, Appellant filed a motion seeking to suppress her

statements to police on both December 1 and December 5, 2012, claiming

that those statements were taken in violation of Miranda v. Arizona, 384

U.S. 436 (1966).    Following a hearing on April 19, 2013, the trial court

denied Appellant’s motion.

      The matter proceeded to a jury trial on January 6, 2014.       Appellant

was convicted on all counts, and on January 23, 2014, she was sentenced to

a term of three to six years’ imprisonment. This appeal followed. Appellant

complied with the trial court’s order to file a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925.



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      Appellant raises three issues for our review.

      1. Whether the [suppression] court erred by failing to suppress
      various oral and written statements made by [Appellant] to the
      police without counsel [present]?

      2. Whether the [trial] court erred by allowing an emergency
      room doctor, Dr. Bruce Teich, to hypothesize [on] how the
      injuries were caused to the child victim []?

      3. Whether the evidence was legally and factually insufficient to
      prove that [Appellant] committed the crimes of: aggravated
      assault, [EWOC], simple assault, [and REAP]?

Appellant’s Brief at 3 (capitalization omitted).

      Appellant first challenges the admissibility of the statements she made

to police during questioning in December of 2012.      Specifically, Appellant

contends that her interactions with State Troopers Boyd and Krause on both

December 1 and December 5, were custodial interrogations requiring

Miranda warnings from the start. Appellant’s Brief at 11-12.        Appellant

concedes that she was Mirandized in the middle of her second interview,

prior to giving a written statement, but maintains that this does not cure the

initial defect. Id. at 12-13.      Accordingly, Appellant believes that her

statements to police should have been suppressed.

      We have discussed our review of suppression claims as follows:

      When considering the denial of a suppression motion, this
      Court’s review is limited to determining whether the [lower]
      court’s factual findings are supported by the record and whether
      the legal conclusions drawn from those facts are correct.
      Because the Commonwealth prevailed in the suppression court,
      we consider only the Commonwealth’s evidence and so much of
      the appellant’s evidence as is uncontradicted when read in the



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      context of the record as a whole. Where the record supports the
      suppression court’s factual findings, we are bound by those facts
      and may reverse only if the legal conclusions drawn from them
      are erroneous.

Commonwealth v. West, 937 A.2d 516, 527 (Pa. Super. 2007) (internal

citations omitted).

      Additionally, we note that

      the Miranda safeguards come into play whenever a person in
      custody is subjected to either express questioning or its
      functional equivalent. Thus, interrogation occurs where the
      police should know that their words or actions are reasonably
      likely to elicit an incriminating response from the suspect. [I]n
      evaluating whether Miranda warnings were necessary, a court
      must consider the totality of the circumstances. In conducting
      the inquiry, we must also keep in mind that not every statement
      made by an individual during a police encounter amounts to an
      interrogation. Volunteered or spontaneous utterances by an
      individual are admissible even without Miranda warnings.

Commonwealth v. Williams, 941 A.2d 14, 30 (Pa. Super. 2008) (citations

and quotation marks omitted).

             Whether a person is in custody for Miranda purposes
      depends on whether the person is physically denied of [his or
      her] freedom of action in any significant way or is placed in a
      situation in which [he or she] reasonably believes that [his or
      her] freedom of action or movement is restricted by the
      interrogation. Moreover, the test for custodial interrogation does
      not depend upon the subjective intent of the law enforcement
      officer interrogator. Rather, the test focuses on whether the
      individual being interrogated reasonably believes [his or her]
      freedom of action is being restricted.

            Under the totality of the circumstances approach, the
      following factors are relevant to whether a detention has become
      so coercive as to constitute the functional equivalent of a formal
      arrest: the basis for the detention; its length; its location;
      whether the suspect was transported against his or her will, how



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     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.

Id. at 30-31 (citations and quotations omitted).

     Instantly, Trooper Boyd testified at the suppression hearing. Appellant

did not testify, nor did she present any witnesses on her behalf.         The

suppression court made the following findings of fact.

     1. On December 1, 2012, [Troopers Boyd and Krause] went to
     Children’s Hospital in Pittsburgh, Pennsylvania, to investigate an
     incident involving a baby who had been injured in his home.

     2. The Troopers, not wearing uniforms, arrived at 7:00 pm[.]

     3. At the hospital, the troopers met the child’s mother,
     [Appellant], along with several family members, in the waiting
     room, and asked to speak with her.[2]

     4. [Appellant agreed] to speak to the Troopers, [and] the three
     of them proceeded to a private room immediately next to the
     waiting room and discussed what had occurred.

     5. Thereafter, on December 5, [2012], the Troopers returned to
     Children’s Hospital and again asked to speak to [Appellant].

     6. [Appellant] once more [agreed] to speak with the Troopers,
     who were not in uniform, [and] the three of them left the waiting
     room and proceeded to the same private room in which they
     spoke on December 1, [2012].

     7. As before, the door was closed but not locked, and neither
     Trooper blocked [Appellant’s] ability to leave the room.




2
  The suppression court considered the limited issue of whether Appellant’s
statements were given freely and voluntarily; thus, the substance of this
discussion was not introduced at the suppression hearing. N.T., 4/19/2013,
at 8.


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     8. [Appellant] was advised that the Troopers wanted to speak
     with her another time about how her child had been injured.

     9. [Appellant] was also advised that she was not under
     arrest and was free to leave at any time.

     10. [Appellant] appeared to understand what she was being
     advised of, did not leave the room, agreed to speak with the
     Troopers, and responded appropriately to questions.

     11. During the conversation with the Troopers, [Appellant]
     stated that she shook the baby.

     12. Upon [making] this statement, [Appellant] was placed under
     arrest and given her Miranda rights, [she] indicated that she
     understood her rights, waived her rights, and provided a written
     statement.

     13. [Appellant] understood what was being said to her and was
     not under the influence of [any drugs or alcohol].

     14. No promises or threats were made to induce either the
     verbal or written statements, nor was any force used to obtain
     any statements.

     15. The oral and written statements of [Appellant] were made
     knowingly, intelligently, and voluntarily.

     16. The testimony of Trooper Boyd, which was not contradicted,
     was credible.

Suppression Court Opinion, 7/3/2014, at 2-3 (emphasis added).

     Based on these findings, the suppression court concluded that, under

the totality of the circumstances, Miranda warnings were unnecessary prior

to when they were actually given. Id. at 5. We agree and find Appellant’s

argument to the contrary unavailing.   The evidence of record reveals that

Appellant was not in custody for the purposes of Miranda on December 1 or




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December 5, prior to her admission.       The door to the interview room was

closed for privacy but remained unlocked. Appellant was expressly informed

that she was free to leave; she was not restrained in any way; and no force,

threats, or promises were made to elicit her incriminating statements.

Accordingly, we hold that the suppression court did not err in denying

Appellant’s motion to suppress.

      Appellant next argues that the trial court abused its discretion by

permitting Dr. Teich to render an improper expert opinion as to the

causation of the child’s injuries. Appellant’s Brief at 14.

            As a general rule, in order to be deemed an expert
      witness, one must only possess more expertise than is within the
      ordinary range of training, knowledge, intelligence, or
      experience. Our standard of review for the competency of expert
      witnesses is well established:

            the question whether a witness is qualified to testify
            as an expert is within the sound discretion of the trial
            court and will not be overturned except in clear
            cases of abuse. In Pennsylvania, a liberal standard
            for the qualification of an expert prevails. Generally,
            if a witness has any reasonable pretension to
            specialized knowledge on the subject matter under
            investigation he may testify and the weight to be
            given to his evidence is for the [fact finder]. It is also
            well established that an expert may render an
            opinion based on training and experience.

Commonwealth v. Jennings, 958 A.2d 536, 539 (Pa. Super. 2008)

(citations, quotation marks and footnotes omitted; emphasis in original).

      In this case, Dr. Teich, the treating physician at Uniontown Hospital,

was offered by the Commonwealth as an expert in emergency medicine.



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N.T., 1/6/2014, at 68-72. Appellant’s counsel objected on the basis that Dr.

Teich was not a pediatrician and had no specialization or expertise in shaken

baby syndrome or of the biomechanics and the determination of force in

such cases. Id. at 71. Counsel’s objection was overruled, and Dr. Teich was

permitted to testify. Id. at 72. A few questions into the doctor’s testimony,

counsel objected again. At this point, the assistant district attorney clarified

that the doctor was present to testify as to what he did on the day Appellant

brought her child to the hospital. Id. at 73. Dr. Teich then discussed his

examination of child in the two hours following his admission to Uniontown

Hospital. Id. at 73-79.

      On appeal, Appellant challenges the following exchange, which

occurred during the doctor’s direct examination.

      Q [by the assistant district attorney]: Upon your discharge or
      upon transfer [of child to Children’s Hospital], based upon your
      treatment of [child] for that two hours, what was the discharge
      diagnosis?

      A: Primary diagnosis would be coma and secondary was the
      subdural hematoma.

      Q: Now, I noticed in your records that there’s noted that there is
      some concern as to history and mechanism, history slash
      mechanism of injury. What does that mean?

      A: My concern was that children fall all of the time and the
      report to us was that the child -- the report to me is that the
      child had fallen near a couch and had fallen backwards and
      struck his head and that is what caused, you know, the mother
      to bring the child in. My concern was, as a physician, we see
      head injuries in children all of the time and certainly most
      children do not have such a significant result from this



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     description and my concern was that what was told to me didn’t
     particularly fit with what my findings were. There was some sort
     of significant trauma that occurred to this child more so than just
     falling.

     Q: Based upon your training and experience, what type of
     significant trauma would cause what you observed in those two
     hours?

     A: If it is a fall, it’s certainly a fall from a higher or bigger height,
     not just, you know, a couple of feet, you know maybe six feet or
     ten feet.

     Q: Okay?

     A: Or other direct impact, blunt trauma to the head causing this
     type of injury.

     Q: What type of force would cause that type of injury as far as
     trauma wise?

     A: Well, I don’t know how else to describe it. It is a much more
     major force. You know just falling from a couple of feet, that
     didn’t explain --

     [Defense Counsel]: Objection.

     The Court: Overruled.

     A. -- or account for it.

     Q: Based upon that, did you notify any social services
     organization?

     A: Yes, when we’re concerned, we notify CYS social services and
     we notified CYS and they are involved.

     Q: You are, in fact, mandated by law; correct?

     A: Yes. Yes.

     Q: Now, doctor, the opinions you stated today regarding the
     injuries and diagnosis and things of that nature, are those all



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      stated within a reasonable degree of medical certainty in the
      field of emergency medicine?

      A: Yes.

Id. at 76-78.

       Specifically, Appellant contends that because Dr. Teich was certified

only as an expert in emergency medicine, as opposed to pediatrics, he was

not qualified to “hypothesize that the [child’s] extensive injuries could only

be caused by either a fall from six to ten feet or from blunt trauma.”

Appellant’s Brief at 15.

      We begin by noting that it is “well-settled that a defendant’s failure to

object to allegedly improper testimony at the appropriate stage in the

questioning of the witness constitutes waiver.” Commonwealth v. Molina,

33 A.3d 51, 55 (Pa. Super. 2011) (citation omitted).           However, even if

Appellant’s objection to Dr. Teich’s opinion testimony was timely, she would

still not be entitled to relief.

      Viewing the record in its entirety, we determine that Dr. Teich’s

testimony regarding his observations of the child in the emergency room and

subsequent      diagnosis   was    based   upon   his   knowledge,   training   and

experience in the field of emergency medicine.           This testimony was not

speculative.    Indeed, his qualifications would certainly permit Dr. Teich to

opine that subdural hematomas and comas seen in the emergency room

setting are typically the result of blunt force trauma.              Moreover, his




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testimony as to the severity of the child’s injuries and the apparent

disconnect between those injuries and their purported cause was relevant to

explain why CYS was contacted and a criminal investigation was begun.

Accordingly, we find no abuse of discretion in permitting the doctor to

testify.3

      Finally, Appellant challenges the sufficiency of the evidence presented

at trial, arguing that the Commonwealth failed to prove that she acted with

the requisite mens rea for each of the aforementioned offenses.

             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 trier of fact while


3
  Additionally, the record reveals that, despite Appellant’s objection that the
doctor was unqualified to testify regarding shaken baby syndrome, the
Commonwealth did not question Dr. Teich in that regard. Instead, the
Commonwealth offered another expert witness, Dr. Janet Squires, as an
expert in the field of child abuse pediatrics. Nonetheless, on cross
examination, Appellant’s counsel established that Dr. Teich was unfamiliar
with shaken baby syndrome and the amount of force required to inflict a
severe head injury on a child. N.T., 1/6/2014, at 79-85.



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     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. Knox, 50 A.3d 749, 754 (Pa. Super. 2012) (quoting

Commonwealth v. Brown, 23 A.3d 544, 559–60 (Pa. Super. 2011) (en

banc)).

     Under the Crimes Code, a person may be convicted of aggravated

assault if she “attempts to cause serious bodily injury to another, or causes

such injury intentionally, knowingly, or recklessly under circumstances

manifesting extreme indifference to the value of human life.” 18 Pa.C.S.

§ 2702(a)(1). Serious bodily injury is defined by the Crimes Code as “bodily

injury which creates a substantial risk of death or which causes serious,

permanent disfigurement, or protracted loss or impairment of the function of

any bodily member or organ.” 18 Pa.C.S. § 2301.

     It is well-established that

           [w]here, as here, the victim suffered serious bodily injury,
     the Commonwealth may establish the mens rea element of
     aggravated assault with evidence that the assailant acted either
     intentionally, knowingly, or recklessly. Looking first to whether
     evidence established intent to cause serious bodily injury, we
     note that such an inquiry into intent must be determined on a
     case-by-case basis. Because direct evidence of intent is often
     unavailable, intent to cause serious bodily injury may be shown
     by the circumstances surrounding the attack. In determining
     whether intent was proven from such circumstances, the fact
     finder is free to conclude the accused intended the natural and
     probable consequences of his actions to result therefrom.




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Commonwealth v. Bruce, 916 A.2d 657, 661-62 (Pa. Super. 2007)

(citations, quotation marks and footnotes omitted).

      With regard to REAP, 18 Pa.C.S. § 2705 provides that “[a] person

commits a misdemeanor of the second degree if he recklessly engages in

conduct which places or may place another person in danger of death or

serious bodily injury.”

      We have held that a person is guilty of [REAP] when it is shown
      that the person (1) possessed “a mens rea recklessness,” (2)
      committed a wrongful deed or guilty act (“actus reus”), and (3)
      created by such wrongful deed the danger of death or serious
      bodily injury to another person. The element of “mens rea
      recklessness” has been defined as “a conscious disregard of a
      known risk of death or great bodily harm to another person.”
      “Serious bodily injury” is defined as “[b]odily injury which
      creates a substantial risk of death or which causes serious,
      permanent disfigurement, or protracted loss or impairment of
      the function of any bodily member or organ. We have further
      held that Section 2705 “was directed against reckless conduct
      entailing a serious risk to life or limb out of proportion to any
      utility the conduct might have” had. Finally, the perpetrator must
      create an actual condition of danger, not merely an
      apprehension of danger.

Commonwealth v. Emler, 903 A.2d 1273, 1278 (Pa. Super. 2006)

(citations and bolding omitted).

      With regard to simple assault, the statute provides, in relevant part,

that “[a] person is guilty of assault if he: (1) attempts to cause or

intentionally, knowingly or recklessly causes bodily injury to another….” 18

Pa.C.S. § 2701(a)(1).      18 Pa.C.S. § 2301 defines “bodily injury” as

“[i]mpairment of physical condition or substantial pain.”




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      Finally, “a parent … commits [the offense of EWOC] if he [or she]

knowingly endangers the welfare of the child by violating a duty of care,

protection or support”. 18 Pa.C.S § 4304(a)(1). Accordingly, the mens era

for EWOC is a knowing violation of a duty of care. “A person acts knowingly

with respect to a material element of an offense when: (i) if the element

involves the nature of his conduct or the attendant circumstances, he is

aware that his conduct is of that nature or that such circumstances exist;

and (ii) if the element involves a result of his conduct, he is aware that it is

practically certain that his conduct will cause such a result.” 18 Pa.C.S.

§ 302.

      Notably, there is a substantial overlap of the mens rea required for

each offense. We begin by observing that the severe and substantial nature

of the child’s injuries is not in dispute. Moreover, for the purposes of the

EWOC charge, Appellant’s testimony established that the injuries were

sustained while in her care. With respect to the causes of those injuries, the

jury was presented with evidence from which they could reasonably infer

that Appellant caused those injuries to the child.      First, Dr. Squires, the

Commonwealth’s expert in child abuse pediatrics, testified that, in her

opinion, the child’s injuries were caused by a “severe shaking” of the child.

N.T., 1/6/2014, at 105-06. (“My diagnosis was inflicted trauma and there

might have been some impact [from a fall], I’m not saying that there wasn’t,


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but some of it had involved shaking. There had to be some component of the

child’s head going back and forth and that is what caused the major brain

injury”).   Dr. Squires clarified that the injuries she observed were

inconsistent with the child falling from a standing position to the floor, as

Appellant initially reported. Id. at 107-08.    This evidence is sufficient to

allow the jury to conclude that the child was injured due to a violent

shaking.

      In her written statement, which was introduced at trial, Appellant

admitted that on the day of the incident, the child had struck his head in a

fall and was crying. She then “shook him twice” to stop him from crying,

after which he “started to shake on his own and his eyes got big and he

wasn’t responsive.” Appellant’s Written Statement, 12/5/2012.4

      Although Appellant argues that she “did not know, nor could she have

known, that merely shaking her child back and forth only twice could

possibly injure her child,” Appellant’s Brief at 17, we are unconvinced that it

is outside of the average adult’s understanding that shaking a baby violently

will result in, possibly serious, injury. See Commonwealth v. Smith, 956

A.2d 1029, 1039 (Pa. Super. 2008) (observing that “It takes nothing more

than common sense for an adult…to know that violently shaking an infant


4
  Appellant denied the veracity of this statement at trial, testifying that she
did not shake him, but instead picked him up to comfort him following the
fall and he became catatonic after 30 seconds. N.T., 1/6/2014, at 136-37,
141-42. As discussed above, the likelihood of this version of events was
disputed by Dr. Squires.


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child with enough force to cause an abusive head trauma could threaten the

child's physical and/or psychological welfare.”)

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

Commonwealth and acknowledging that it is permissible for the factfinder to

infer that one intended the natural consequences of her actions, Bruce,

supra, we hold that the evidence presented here was sufficient to allow the

factfinder to infer that Appellant shook the child violently with the intention

of seriously injuring him. Moreover, we hold that the evidence was sufficient

to prove that Appellant acted recklessly with a conscious disregard of a

known risk of death or great bodily harm to the child.          Likewise, the

evidence supports a finding that Appellant should have been aware that the

child could be injured by her actions and knowingly disregarded this

possibility. Accordingly, based on the foregoing, we hold that the evidence

was sufficient to sustain each of Appellant’s convictions.   See Smith, 956

A.2d at 1036-39 (holding that evidence was sufficient to find Smith

possessed the requisite mens rea to commit aggravated assault, EWOC, and

REAP where neurosurgeon testified that the traumatic brain injury suffered

by Smith’s child while in Smith’s care was consistent with violent shaking).

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/10/2014




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