J-A10043-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    SHANNON M. MATTHEWS                        :
                                               :
                       Appellant               :   No. 671 EDA 2017

            Appeal from the Judgment of Sentence January 18, 2017
     In the Court of Common Pleas of Delaware County Criminal Division at
                       No(s): CP-23-CR-0003008-2015


BEFORE:      GANTMAN, P.J., McLAUGHLIN, J., and RANSOM*, J.

MEMORANDUM BY RANSOM, J.:                                  FILED MAY 30, 2018

        Appellant, Shannon M. Matthews, appeals from the judgment of

sentence of twenty-four to forty-eight years of confinement followed by five

years of probation, imposed January 18, 2017, after a jury trial resulting in

her convictions for murder of the third degree, aggravated assault, and

endangering the welfare of children – parent/guardian/other commits

offense.1 We affirm.

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

facts and procedural history of this case. See Trial Court Opinion, 6/20/17,

at 1-4. Therefore, we have no reason to restate them.

        Appellant raises one issue for our review:




____________________________________________


1   18 Pa.C.S. §§ 252(c), 2702(a)(1), and 4304(a)(1).


*    Retired Senior Judge assigned to the Superior Court.
J-A10043-18


      1.    Was the evidence insufficient to support [Appellant]’s
      convictions for murder of the third degree and aggravated
      assault?

Appellant’s Brief at 2.

      In reviewing the sufficiency of the evidence, our standard of
      review is as follows:

      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. . . .
      Finally, the trier 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. Fortson, 165 A.3d 10, 14–15 (Pa. Super.) (citation and

internal brackets omitted) (some formatting applied), appeal denied, 174

A.3d 558 (Pa. 2017).

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

applicable law, and the well-reasoned opinion of the Honorable James F. Nilon,

Jr., we conclude that Appellant’s challenge to the sufficiency of the evidence

merits no relief.    The trial court opinion comprehensively discusses and

properly disposes of that question. See Trial Court Opinion, 6/20/17, at 5-20

(finding (1) the evidence was sufficient as a matter of law to sustain

Appellant’s convictions for murder of the third degree and aggravated assault,

because the evidence established that:      (a) the inflicted injuries – which

occurred over a period of time through multiple beatings and which were fatal

in combination, although no one injury was lethal – together with the denial

of medical care caused the victim’s death, (b) the victim exhibited no signs of


                                     -2-
J-A10043-18



injury prior to being in Appellant’s custody, (c) Appellant had the opportunity

to inflict the injuries in question, and (d) the Commonwealth established the

requisite malice; and (2) Appellant’s substantive and procedural due process

rights were not violated). Accordingly, with respect to Appellant’s sole issue

on appeal, we affirm on the basis of the trial court’s opinion.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/30/18




                                     -3-
                                                                                     Circulated 05/07/2018 03:22 PM




                                                                                   ORIGINAL
    IN THE COURT OF COMMON PLEAS OF DELAWARE COUNTY, PENNSYLVANIA
                                   CRIMINAL DMSION


COMMONWEALTH OJI' PENNSYLVANIA                               671 EDA 2017

              v.                                             NO. CP-23�CR-0003008-2015

SHANNON M. MATTHEWS



John F, X. Reilly, EsquirejAttorney for the Commonwealth
Todd M. Mosser, Esquire; Attorney for the Appellant

                                          OPINION

NO:.,ON, J.                                                                       F1LED: 6/16/17

       Shannon M. Matthews, hereinafter "Appellant," argues that she is entitled to relief a:ft�r a

jury found her guilty of Third Degree Murder, Aggravated Assault, and Endangering the Welfare

of Children. Appellant raises seven issues on appeal, including: insufficiency of the evidence,

failure to prove malice and causation, weight of the evidence, unavailability of a witness, and

"inadmissible" character evidence. Appellant's contentions are meritless.

FACTUAL HISTORY:

        On Tuesday, February 3, 2015, the Norwood Borough Police Department and emergency

medical responders were dispatched to a physician's office, where Appellant was then employed.

(N.T. 12/6/16, pp. 125�26). Appellant was also living in an apartment located above tho

physician's office. (N.T. J.2/6/16, p. 127). Upon anlval, police and paramedics saw M.H., the

two-year-old son of Appellant, unresponsive and being administered CPR by Dr. Patricia Sutton.

(N.T. 12/6/16, pp. 126, 180). Paramedics took over CPR efforts on the child, who was cold to the

touch. (N.T. 12/6/16, p. 180; N.T. 12/7/1.61 p. 157). M.H. was transported to Taylor Hospital,

                                                 1
                                                                                                . -- •(2)-··-
                                                                                                       \TI
where he was pronounced dead less than 30 minutes after arriving. (N.T. 12/6/16, p. 127; N.T.

1217/16; p. 174). The emergency department physician who treated the child observed numerous

bruises to bis head, face, torso, genitals, and extremities. (Exhibit C-19, Taylor Hospital medical

records, 2.13/15).

        Appellant's boyfriend and oo-defendant, Daniel Grafton, was arrested the same night and

charged with Aggravated Assault and related offenses. (Affidavit of Probable Cause, 4/10/15).

During the course of the investigation into the child's death, Appellant gave three separate,

recorded, voluntary statements to investigators, and each time denied any responsibility for

M.1-I. 's death. (N.T. 12/6/16, pp. 217-96). Appellant implicated Grafton in the killing and
                                      .                                                   .
suggested that Grafton may have overdosed M.H. with chugs, (N.T. 12/6/16, p. 219). The

Medical Examiner determined the manner and cause of death to be homicide due to multiple

blunt force traumas. (N.T. 12/7/16, p. 320). Additional charges, including Third Degree Murder,

were then filed against Grafton. (Criminal Complaint, 4/14/15). Charges against Appellant of

Third Degree Murder, Aggravated Assault, and related offenses were filed on April 16, 201 S.

(Criminal Complaint, 4114/15),

        At trial, evidence was elicited to demonstrate that M.H. sustained numerous injuries1 both

internal and external, resulting from repeated blunt force trauma. (N.T. 12/7/16, pp. 253-313).

Tho Medical Examiner's opinion was that the injuries were sustained over a period of days, in
           .     .
several separate beatings. (N.T. 12/7/161 p. 331). Three medical exports, called by both the

Commonwealth and the Defense, agreed that        no individual injury was lethal, and that M.H.
likely would have survived if he had been given medical attention. (N.T, 11/29/16, p. 64; N.T.

12/7/16, pp. 320"21; N.T. 12/8/16, p. 302). Subsequent evidence at trial showed that Appellant

refused Grafton s request to take M.H. to th.e hospital ·two days prior to his death, and that both
               1




                                                 2
Appellant and Grafton deliberately refused to a11ow a caseworker from Children and Youth

Services to see M.H. the day before his death. (N.T. 12/8/16, pp. 122·23, 131). 'Though M.H.

was declining in physical health and clarity over the course of three days, Appellant never sought

medical or other assistance for him.

           In December of 2016, Grafton            and Appellant stood trial jointly, After a week-long jury
trial, Grafton was acquitted of the murder and assault charges and found guilty of Endangering

the Welfare of Children for his role in failing to seek medical attention for M.H. when Appellant

refused to do so. Appellant was found guilty of Third Degree Murder, Aggravated Assault, and

Endangering the Welfare of Children, but acquitted of Conspiracy                    of Third Degree Murder. She
was sentenced on January 17, 2017.

PROCEDURAL HISTORY:

           Appellant was charged on April 16, 2015, with Third Degree Murder', Simple Assaulr',

Aggravated Assault', Endangering the Welfare of Children (Parent/Guardian Commits

Offense)", Endangering the Welfare of Children (Preventing/Interfering with Making Report)5,

Involuntary Manslaughter'', and Conspiracy- Third Degree Murder", Appellant was formally

arraigned on June 16, 2015. Trial counsel, Joseph D'Alonzo, Esquire, entered his appearance on

behalf of Appellant on July 20, 2015.

           On September 29, 2015, Appellant filed an Omnibus Pretrial Motion> including u Motion

to Suppress regarding three statements made by Appellant to police. A hearing on the Motion to

Suppress was held on October 15, 2015..                           011 November 17, 2015, Appellant filed a.

1
   18 Pn. C. S.    § 2502(c)
'· 18 Pa. C. S.    § 2701(11)(1); withdrawn,
3
   1 & Pu. C. S.   § ?.702(u)(2)
1
   18 PR. C. S.    § 4304(n)(l)
5 18 Pa. C. S.     § 4304(n)(2); withdrawn.
6 18 J>a. C. S.
                   § 250�(a); dismissed following guilty verdict of Third Degree Murder,
118 Pa. C. S.      § 903

                                                              3
Memorandum of Law in Support of the Motion to Suppress. The Commonwealth also filed a

Memorandum of Law. This court issued detailed Findings of Fact and Conclusions of Law and

denied the Motion to Suppress on December 22, 2015.

        After a five-day jury trial, Appellant was convicted of Third Degree Murder, Aggravated

Assault, and Endangering the Welfare of Children    011   December 9, 2016; she was acquitted of

the charge of Conspiracy to Commit Third Degree Murder. Appellant filed a Motion for

Judgment of Acquittal on December 19, 2016 and was subsequently denied on December 21�

2016.

        On January 18, 2017, Appellant was sentenced to 20-40 years for Third Degree Murder;

4-8 years for Aggravated Assault; and 5 years' probation, to run consecutively. Appellant filed a

timely Post-Sentence Motion on Januru.� 20, 2017, requesting a new trial on the grounds that the

evidence was insufficient to support the verdict as a matter of law and that the verdict was

against the weight of the evidence. This Motion was denied on January 27, 2017. On Pebruary

l 6, 2017 > Appellant filed a timely Notice of Appeal to the Superior Court. Consequently, tbls

Court directed Appellant to file a Concise Statement of Errors Complained of on Appeal

pursuant to Pu.R.A.P. 1925(b) and Appellant filed e Concise Statement of Errors Complained of

on Appeal raising the following issues for appellate review:

           1. The evidence was insufficient as a matter of law to sustain a
              conviction of Third Degree Murder because the Commonwealth
              failed to prove malice:

           2. The evidence was Insufficient 88 a matter of law to sustain
              convictions of Third Degree Murder and Aggravated Assault
              because the evidence only showed she had the opportunity to
              commit such;

           3. Appellant's convictions of Third Degree Murder and Aggravated
              Assault violate her substantive and procedural Due Process Rights


                                                4
                                                '·
              because malice and causation were not proven beyond a reasonable
              doubt;
           4. The evidence was insufficient as a matter of law to sustain a
              conviction of Aggravated Assault because the Commonwealth's
              evidence failed to establish causation in that the Medical
              Examiner's opinion failed to establish that the injUl'ies occurred at
              a time when the child was in the Appellant's custody;

           5. In the alternative, Appellant argues that her convictions of Third
              Degree Murder and Aggravated Assault ruse against the weight of
              the evidence because the Commonwealth failed to establish
              causation;

           6. The Court of Common Pleas erred in allowing witness Charles
              Albert's preliminary testimony to be read to the jury because Mt.
              Albert should not have been declared "unavailable" for purposes of
              the exception to the hearsay rule; and         ·

           7. The Court of Common Pleas erred in overruling Defense's
              objection to the Commonwealth's question of Mr. Grafton, in
              which the Commonwealth sought to elicit that Mr, Grafton relied
              on Appellant's "truthfulness," as the question called for
              inadmissible character evidence where the same was not first put at
              issue by Appellant.


DISCUSSION:

   I.      Appellant argues she is entitled to _relief because the evidence is
           insufficient as a matter of Iaw to sustain a convletlnn for Third Degree
           Murder.

           The fast issue raised by Appellant for appeal is one of alleged insufficiency' of the

evidence as a matter of law. Specifically, she contends that (1) the, Commonwealth failed to

establish the causation· of MJ-I. 1 s death because the Medical Examiner's report fails to establish

coocretely when the mechanism of death occurred; (2) the Commonwealth foiled to establish

causation because the Medical Examiner's report does not identify which injuries led to tho

condition that caused death; (3) the Commonwealth failed to establish causation because the

Medical Examiner conceded that the unidentified injuries that Jed to death could have been


                                                     5
inflicted during a time when M.H. was not in Appellant's custody; and (4) the Commonwealth,

in failing to establish the aforementioned, also failed to establish the requisite malice needed to

sustain a conviction for Third Degree Murder> and therefore the jury' s inference of the same was

based on improper speculation.

           Standards Governing Su'ffieiency of the Eyldencc

           A claim challenging the sufficiency of the evidence is a question of law.

Commonwealth v. Strouse, 909 A.2d 368 (Pa. Super. 2006); Commonwealth v. Dale, 836 A.2d

150 (Pa, Super. 2003). When reviewing a challenge to the sufficiency of the evidence to support

a conviction, the court must determine whether the evidence was sufficient to enable the finder

of fact to find every material element of the crime charged and the commission thereof by the

accused, beyond a reasonable doubt, viewing the evidence and the reasoneble inferences

therefrom in the light most favorable to the Commonwealth as the verdict winner.

Commonwealth v. Strouse, supra; Commonwealth v. Dale, supra. See also Commonwealth v.

McCloskeA 835 A.2d 801 (Pa. Super. 2003); Commonwealth v. Widmar, 560 Pa. 308, 744 A.2d

745 (2000).

           Furthermore, the Commonwealth may sustain its burden by proving the elements of

the offense with evidence which is entirely circumstantial and the finder of fact, who determines

credibility of witnesses and the weight to give evidence produced, is free to believe all, part, or

none of the evidence. Commonwealth v. Jette, 818 A.2d 533, 534 (Pa. Super 2003).

           The Superior Court may not substitute its judgment for that of the finder of fact.

Commonwealth v. Hopkins; 747 A.2d 910 (Pa. Super. 2000). If the fact finder reasonably could

have determined from the evidence adduced that all of the necessary elements of the crime were

established, then that evidence will be doomed to support the verdict. Commonwealth v. Wood,


                                                  6
637 A.2d 1335 (Pa. Super. 1994). The standard applies equally to cases in which the evidence is

circumstantial, rather than direct, as long as the evidence as a whole links the accused to the

crime charged beyond a reasonable doubt. Commonwealth v. Hardcastle, 519 Pa. 236, 546 A.2d

1101 (1988); Commonwealth v. Swerdlow, 636 A.2d 1173 (Pa. Super. 1994). Additionally, mere

conflicts in the testimony of· the _witnesses do not render the evidence insufficient.

Commonwealth v. Moore, 648 A.2d 331 (Pa. Super. 1994). Issues of credibility are left to the

finder of fact, who is free to accept all, part, or none of a witness's testim.ony. Commonwealth v.

Johnson, 542 Pa. 384, 668 A.2d 97 (1995); Commonwealth v. Valette, 531 Pa. 384, 388, 613

A.2d 548 (1992); Commonwealth v. Simmons, 541 Pa. 211, 662 A.2d 621 (1995);

Commonwealth v. Kelley, 664 A.2d 123 (Pa. Super. 1995); Commonwealth v. Lytle, 444 Pa.

Super. 126, 663 A.2d 707 (1995). Questions of doubt are for the finder of fact, unless the

evidence is so weak and inconclusive that, � a matter of law> no probability of fact can be drawn

from the totality of the circumstancea, Commonwealth v, Cassidy, 668 A.2d 1143 (Pa. Super.

1995); Commonwealth v. Govens, 632 A.2d 1316 (Pa. Super. 1993), a/loo. den., 539 Pa. 675, 652

A.2d 1321 (1994). Only when the evidence offered to support the verdict is in contradiction to

the physical fuels,   01·   in contravention to human experience and the laws of nature, can the

evidence be considered insufficient as a matter of law, Commonwealth v. Widmer, supra.

           The appellate courts in Pennsylvania have articulated a well-settled test for reviewing

sufficiency of the evidence claims:

               TI1e 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 tho above test> we may not weigh
               the evidence and substitute Olli' judgment for the fact-finder, In
               addition, we note that the facts and circumstances established by

                                                   7
               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 menus 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 tho evidence produced, is free to
               believe all, part 01· none of the evidence.

       Commonwealth v, Baker, 72 A.3d 652, 657-58 (Pa. Super. 2013) (quoting

Commonwealth v. Knox, 50 A.3d 749, 754 (Pa. Super, 2012}, appeal granted 'on other grounds,

68 A.3d 323 (Pu.. 2013)). Furthermore, "the critical inquiry on review of the sufficiency of the

evidence to support a criminal conviction ... does not require a court to 'ask itself whether it

believes that the evidence at the triel established guilt beyond a reasonable doubt.'" Jackson v.

Vtrgfnfa, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 61 L.Ed.2d 560 (1979} (emphasis added).

       Appellant was convicted of Third Degree Murder under 18 Pa. C. S. § 2502(c), defined

as murder which is not committed as an intentional killing or committed while defendant was

engaged "in perpetration of a felony. "Intentlonal killing" is defined as "killing by means of

poison, or by lying in wait, or by any other kind of willful, deliberate and premeditated killing."

Id. "Perpetration of a felony» is defined as "the act of the defendant in engaging in or being an

accomplice in the commission of,      01·   an attempt to commit, or flight after committing, or

attempting to commit robbery, rape, or deviate sexual intercourse by force or threat of force,

arson, burglary or kidnapping." Id.

       Viewed in tho light most favorable to 'the Commonwealth as verdict winner, the evidence

shows that Appellant repeatedly, over the course of multiple days, beat M.H. and subsequently

                                                  8
denied him medical care. The evidence also shows that the denial of medical care, coupled with

the inflicted Injuries, led to M.H.'s death.

           A. Appellant argues that tile Commonwealth foiled to establish
              causation ot' death in that the Medlcal E.xa1ttiner's report failed
              to establish when the mechanism of death occurred.

        As noted above, the Commonwealth can present its case circumstantially, leaving the

finder of fact to decide what weight and credibility to give what evidence and witnesses. Jette,

818 A.2d at 534.

        The evidence presented by the Commonwealth demonstrated that the injuries leading to

M.H.'s death were inflicted over n period of time, through multiple beatings, (N.T. I2n/I6, pp.

327, 331 ). The Medical Examiner testified that the physical evidence with which he was working

suggested that the bruising present on M.H. likely occurred over the course of at least three days.

(N.T. 12/7/16, p. 331). M.H. was returned to the custody of Appellant on the morning of Friday,

Janunry 30, 2015, with reports from his father and grandmother that there was no evidence of

injury, (N.T. 12/6/16, pp. 78, 130). Toe Commonwealth also established that thero was no

evidence of injury to MB. as of Priday afternoon, January 30, when he was last seenby daycare

teachers. (N.T. 12/5/16, pp. 175;196). Testimony from co-defendant Grafton showed that he did

not see M.H. from the evening of Friday, January 30 until the evening of Sunday, February 1,

with Appellant having elected not to attend a bowling outing on Friday because "M.H. was not

feeling well." .(N.T. 12/8/16, pp. 110-14). When Grafton saw M.H. on Sunday night, he was

bruised unlike Grafton had ever previously seen. (N.T. 12/8/16, p. 114).

        The expert witness for the defense, Dr. Jonathan Arden, did not dispute the

Commonwealth's evidence thet M.H. was the victim of child abuse or that his injuries led to his

death; in fact, he agreed to as much. (N.T. 12/8/16, pp. 277-79, 302). Dr. Arden disagreed


                                                 9
slightly with the Medical Examiner's dctcrmlnation of the age of the bruising. Where the

Medical Examiner dated the bruises as being inflicted about 72 hours before death, Dr. Arden

ranged their infliction at two to seven days prior to death> with the largest bruises around 72

hours prior to death. (N.T. 12/7/16, p. 286; N.T. 12/8/16, p. 272). The Appellant had custody of

M.H. from Friday morning, four days prior to his death, up until he died. From the information

adduced from both sides' experts at trial, the [ury could, and did, reasonably conclude that 'the

injuries which caused M.H.'s death were inflicted when she hod custody, despite the fact that tho

Medical Examiner's report cannot determine concretely when the mechanism of death occurred.

       Further, the Commonwealth produced evidence that, if M.H. had received medical care

after ·the infliction of his injuries, he likely would have survived. (N.T. 11/29/16, p. 64; N.T.

12/7/16, pp. 320�21). Over the course of the weekend preceding M.H.'s death, the Appellant had

opportunity to seek medical care for M.H. and repeatedly foiled,   01·   deliberately prevented others,

to do so. Dr. Elcock-Messam, the pediatric expert for the Commonwealth, discussed the

significance of Appellant's previous phone calls to M.H.'s pediatrician for questions of routine

ailments, but that there was no evidence of n phone call when M.H. would have been in visible

distress with the injmfos he received. (N.T. 11/29/161 p. 102). Appellunt lived above, and worked

for, a physician. Children and Youth Service (CYS) caseworker Charles Albert testified that he

went to Appellant's residence one day before MJI.>s death for a follow-up related to a previous

incident and got no response, despite having an appointment (N.T. 12/6/16, p. 96). Co-defendant

Grafton testified that he was not told until the very last minute that CYS would be coming by and

that Grafton was suspected of the previous incident for which the caseworker              WM   doing a

follow-up; he stated that this made him suspicious. (N.T. 12/7/16, p. 122). Grafton also testified

that he discussed M.H. needing to see a doctor and that Appellant told him she had made an


                                                10
appointment for Wednesday, February 4. (N.T. 12/7/16, p. 131), Because Grafton was under the

impression a doctor's appointment was iu place, he did not make one or take M.H. himself. (N.T.

1217/16, p. 131). There is no evidence to indicate any such appointment was made, but

significant evidence that Appellant failed to utilize the vnrlous sources of help available.

           B.      Appellant argues that the Commonwealth failed to
                   estabhsh causatlon because the Medlen! Examiner's report
                   does not Identify which lnjuries led to the condition that
                   caused death.

       Factual questions which are in doubt are le-ft to the finder of fact to decide, except where

the evidence is overwhelmingly weak. Cassidy, supra, 477 Pa. Super at 192. As noted above, the

court in Widmer, supra, held that the evidence is only insufficient as a matter of law when it is

contradictory to physical facts, human experience, and the laws of nature, 560 Pa. at 308.

       In the case in question, three separate medical experts opined that no one injury was fatal,

but it was the combination of the multiple injuries inflicted and the luck of medical care that

killed M.H .. (N.T. 11/29/16, p. 64; N.T. 1217/16, pp. 320"21; 12/8/16, p. 261). These experts

represent both the Commonwealth and the Defense in 111is agreement. Though the Medical

Examiner's report does not concretely establish which injury or injuries led to the ultimate

condition which caused death, there is sufficient circumstantial evidence for n jury reasonably to

conclude that the series of injuries, which occurred while M.H. was in Appellant's care, led in

their totality to his death. As established in Jette, supra, the jury can believe all, part, or none of

the evidence presented in making its conclusion, 818 A.2d at 534. 111.e jury believed that the

evidence presented was sufficient to make a rational decision beyond a reasonable doubt and did

so.




                                                  11
           C.     Appellant argues that the Commonwealth failed to
                  establish causation because the Medical Examiner
                  conceded that the unidentified injuries that Jed to death
                  could have been inflicted during a tlmc when the child was
                  not in AppcJJnnt's custody,

       Similarly to Section lB above, the jury is permitted to draw its conclusion based on

circumstantial evidence so long as the evidence is reasonable. In this case, the medical experts

established that the injuries which caused the bruising occurred between two and seven days

prior to M.H.'s death, with approximately three days being the general consensus. (N.T. 12/7/16,

pp. 286, 297� N.T. 12/8/16, p, 272). It was established through the testimony of Paul Hunt,

Barbara Baltsukonis, and co-defendant Grafton, that M.H. was with, alone or otherwise,

Appellant from the Friday preceding his death until the morning of the day. he died, and that he

was completely alone with her from Saturday morning until Sunday evening. (N.T. 12/5/16, pp.

?8-79, 130-32; N.T. 12/8/16, pp. 110-13).

       Though the Medical Examiner conceded that the injuries could have been inflicted on

Thursday, at a point when M.H. was with his father and grandmother, both of those individuals

and the day care teachers reported no evidence of injury, bruising, or any sort of malaise on

Friday. (N.T. 12/7/16, p. 327; N.T. 1215/16, pp. 79, 130, 175, 196). From this information, the

jury could infer, within the realm of reasonableness and to a certainty of beyond a reasonable

doubt, that the injuries occurred during the period of time when M.H. was in Appellant's custody

and not during some other time, though that possibility did exist. There was sufficient evidence,

albeit circumstantial, to narrow down the tlmeframe of the infliction of injurles to being most

likely to have had occurred Friday night to Saturday rooming, with some reasonable belief that

they occurred as late as Saturday night. Additionally, the Medical Examiner testified that the




                                               12
beatings likely occurred over the course of'three days, which lends more weight to the belief that

the injuries were inflicted when Appellant was in control. (N.T. 1217/16, p, 331).

           D.      Appellant argues that the Commonwealth, in failing to
                   establish the preceding facts, also failed to establish the
                   requisite mnlice to sustain n conviction for Third Degree
                   Murder and the ju1'Y's inference of the same was based on
                   improper speculation.

       '111e jury was instructed as to the elements of Third Degree Murder using the

Pennsylvania Suggested Standard Criminal Jury Instructions 15.2502C (2016). Under these

instructions, malice is shown "if the perpetrator's actions show his or her wanton and willful

disregard of an unjustified and extremely high risk that his      01·   her conduct would result in death

or serious bodily injury to another." (N.T. 12/9/16, p. 138). In Commonwealth v. Miller, 627

A.2d 741 (Pa. Super. 1993), the Superior Court of Pennsylvania held. that proof of the

defendant's intent to kill her infant daughters was not necessary to prove malice; it was only

necessary to prove that the defendant consciously disregarded an extreme risk of injury to

another, In that case, the defendant was charged with Third Degree Murder ln the deaths of her

seven-month old twins after they were discovered dead, having died of dehydration and.

malnutrition. Id. at 414. The defendant was convicted, and on appeal raised, inter alia, the

argument that the Commonwealth failed to prove her malice beyond a reasonable doubt; her

argument centered on the fact that ber children died as a result of her negligence, but she did not

intend to hurt them, Id. The court in Mtller discussed the definition of malice, also noting that the

actor need not intend another to _be injured. Id.   at 416. See   Commonwealth v. Drum, 58 Pa. 91 15

(1868); see also Commonwealth v. Young, 494 Pa. 224, 431 A.2d 230 (1981).

       Other cases have upheld convictions of Second and Third Degree Murder where there is

no evidence of intentional actlon to harm but significant, though circumstantial, evidence of the

                                                    13
disregard of the welfare of others resulting in death. For example, in Commonwealth v. Taylor,

the defendant was convicted of Second Degree Murder for striking and killing a child with his

car while driving under the influence of alcohol. 461 Pa. 557, 337 A.2d 545 (1975). There, the

court did not have any direct evidence to show tho defendant's reckless disregard for the safety

of the boys he hit, such a� testimony that he said his intent was to do so, but there was significant

circumstantial evidence. The court discussed the use of the defendant's intoxicated state, rate of

speed, distance of bodies and bicycles from the point of impact, and knowledge of the presence

of children in the area to prove malice circumstantially. Id. at 564.

       TI1e instant case is similar in ways to both Miller and Taylor. The Commonwealth has not

set out to prove that Appellant intended to kill M.H., but it has proven that her actions resulted in

his death and were done with n disregard for his life. Malice in this case is, as in Taylor,

circumstantially evident. The nature of the injuries- large bruises over most of his body; 128

individual bruises counted; a liver laceration; free blood in .the abdominal cavity- this is in itself

evidence of malice and disregard for life, (N.T. 12/7/16, pp. 271-83). Further evidence of an

"unjustified risk" to MJI. 's life is in the lack of medical care. The Commonwealth argued in its

closing statement the numerous avenues through which Appellant had access to medical care for

M.H.: her employer, her coworker, M.H.'s pediutriclan, tho visit from CYS, or even taking M.H.

to daycare could have resulted in M.H. getting care which may have saved his life. (N.T.

12/9/16,p. 110).

       There is also evidence in this case that Appellant hated M.H. There was testimony from

an acquaintance of Appellant that Appellant repeatedly offered to give M.H. to her. (N.T.

12/5/16, p. 221 ) .. The same acquaintance, as well as another, also testified that Appellant "hated"

M.H., "hate" being Appellant's word. (N.T. 12/5/16, pp. 220�23, 239). A third acquaintance


                                                  14
testified to Appellant's animus toward M.I-l. (N.T. 12/6/16, pp. 108�10, 173-76). There were text

messages adduced reading to that effect (from Appellant to Grafton, regarding M.H.: " ... I

almost did something really bad [t]o him .. ."), (N.T. 12/7/16, p, 198). In addition, Appellant

referred to M.H. as her "Suboxone baby." (N.T. 12/5/16 pp. 2201 222). Appellant prevented the

CYS caseworker from conducting his visit the .day before M.H. died, prevented him from seeing

M.H.'s condition, and prevented him from getting MJI. care. (N.T. 12/6/16, pp. 96-97; N.T.

12/8/16, pp. 122-23).

         The administration of the blows alone is evidence of malice in this case; it is a reasonable

inference that the perpetrator of M.H.'s injuries was acting with a willful disregard of an

extremely high risk of death, Finally, Grafton asked Appellant about taking M.H. to a doctor, and

Appellant responded by telling him there was a future appointment in place, which was false,

(N.T. 12/8/16, p. I 10). This statement prevented Grafton from seeking care independently.

         All of the evidence elicited at trial showing the above information, in conjunction with

the law as it was explained to the jury regarding malice, shows that the Commonwealth met its

burden to prove Appellant acted wlth malice, Together with Sections IA-JC, it is clear that the

evidence was sufficient to sustain a conviction fol' Third Degree Murder.

    IL       Appellant argues the evidence was Jusufficient as a matter ot' Jaw to
             sustain convictions for Third Degree Murder and Aggravated Assault
             because the evidence only showed that she may have had the opportunity
             to inflict the injnries in question, and that is not sufficient to sustain her
             conviction.

         It is well established that circumstantial evidence is just as strong as, and sometimes

stronger than, direct evidence. Commonwealth v. Cedeno, 2015 WL 6874800 (Pa. Super, 2015)

(citing Commonwealth v. Wentzel, 61 A. 2d 309, 312 (Pt,.1948)). It is also well establlshed that a

case can be made wholly          011   circumstantial evidence. Id.; Jette, supra, 818 A.2c1 533.

                                                   15
Additionally, as discussed above in the Standards Governing Sufficiency of the Evidence, the

test is based on the facts and all reasonable inferences which can be drawn from those facts.

Strouse, supra, 2006 Pa. Super. 273; Dale, supra, 2003 Pa. Super. 413. (emphasis added),

          Here, the fucts showed that Appellant was with M.H., alone, at times when she would

have been able to inflict the injuries which led to his death. A reasonable inference which can be

drawn from this is that she was the perpetrator of the injuries. Based on the above standard, the

evidence showing that she had the opportunity, at a time that matches when the injuries were

believed to have been inflicted, and leading to a reasonable inference that she was the perpetrator

is sufficient to sustain the convictions because that is exactly the standard set forth in Strouse and

Dale. Appellant's argument on this subject has no merit.

   lIJ.      Appellant argues her convictions for Third Degree Murder and
             Aggravated Assault violate her substantive and procedural Due Process
             rights, us the requisite malice and enusation needed to sustain her
             convictions were not proven beyond a reasonnble doubt,

          Procedural Due Process is afforded to an individual when she has had adequate notice of

the charges against her and the penalties she may face, the opportunity to be heard, and the

chance to defend herself in front of a fair and impartial tribunal. Commonwealth v. Wright, 961

A2d. 119, 132 (Pa. 2008); Commonwealth v. Thompson, 281 A.2d 856 (Pa. 1971); See,           «s-
Commonwealth v. Mayhugh, 336 A.2d 379 (Pa. Super. 1975) ("Fundamental to the concept of

due process is the principle that every person who stands accused of a crime ls entitled to a fair

and impartial trial."). Procedural Due Process rights attach in any action where the government

may attempt to deprive an individual of life, liberty, or property. JJd. ofRegents of State Colleges

v. Roth> 408 U.S. 564, 569 (1972).

          The Pennsylvania Supreme Court has not yet addressed defining "adequate notice" as it

relates to Procedural Due Process; however, lower courts have elucidated the meaning to be that,
                                                  16
at a minimum, the "notice contain a sufficient listing and explanation of the charges against a

person, so that he or she may prepare an adequate defense." LT Int'! Beauty Sch., Inc. v. Com.,

Bureau ofProf'l & Occupatlonal Affairs, State Bd. of Cosmetology, 13 A.3d 1004, 1013 (Pa.

Commw. Ct. 2011). The issue of what constitutes the opportunity to be heard has been famously

dealt with in the United States Supreme Court in Mathews v. Eldridge, 424 U.S. 319 (1976),

declaring 1ha.t one's opportunity to be heard before being deprived of a fundamental right must

occur at "a meaningful time, in a meaningful manner." The United States Supreme Court has

long held that a fair and impartial tribunal requires an absence of bias in the trial of cases and

that the judge in a case may not preside where he has an interest in the outcome. In re

Murchison, 349 U.S. 133, 136 (1955); See also Williams v. Pennsylvania, 136 S. Ct. 1899

(2016); Kaley v. United States, 134 S. Ct. 1090 (2014).

       Substantive Due Process is the concept of guaranteeing "fundamental fairness and

substantial Justice." Commonwealth v. Martinez, 147 A.3d 517, 534 (Pa. 2016) (Saylor, C.J.,

concurring) (quoting Khan v. State Bd. of.Auctioneer Exam'rs, 842 A.2d 936, 946 (PA. 2004)).

In Martinez, the appellees had all pleaded guilty to various sexual offenses and, because of the

pleas in place with the Commonwealth, each registered as sex offenders for ten years pursuant to

Megan's Law. 147 A.3d at 520�21. However, after the pleas were entered, the General Assembly

passed the Sex Offender Registration and Notification Act (SORNA), which would have

required the appellees to register for 25 years to life. Id. at 521-22. Chief Justice Saylor

concurred with tho Court's decision to uphold the lower courts' enforcement of the Megan's

Law-based plea agreements; tbfit concurrence is rooted in the concept of fundamental fairness,

noting that the appellees were entitled to the agreement for which they had bargained as a matter

of Due Process, Id. at 535.


                                                  17
       Appellant's case is afforded the benefit of the attachment of Procedural Due Process as

outlined above, and her rights were protected, not violated. Appellant was under adequate notice

of the proceeding; against her, as M.H. died on February 3, 2015, she was charged on April 16,
       .
2015, and her trial took place in December 2016. The Information filed enumerated the seven

charges she would be facing, including those on appeal here. Further, she had the opportunity to

be heard and elected not to testify, which is her constitutional right. (N.T. 12/8/16, p. 10}. That

opportunity to be heard, consistent with Mathews, was during the course of her trial, in the

courtroom. She also had the opportunity to defend herself in front of a fair and impartial tribunal,

which she utilized In the form of her attorney's presentation of defense; the trial lasted a full

week, in front of a jury of 1.2, which had been chosen with the assistance of Appellant's counsel.

Additionally, this Court is on record ensuring the Appellant's decision not to testify was hers

alone and made knowingly, intelligently, and voluntarily. (N.T. 12/8/16, pp. 4-12). Moreover,

there is nothing in the record or alleged by either defendant in the case at any point to suggest

improper interest in the outcome by this Court, so demonstrating this Court' s compliance with

Murchison. Therefore, Appellant's Procedural Due Process rights were not violated.

       Appellant's Substantive Due Process rights were also not violated. Appellant argues that

the Commonwealth failed to prove malice and causation beyond a reasonable doubt such that

this right was violated, presumably (but not articulated by Appellant) because the failure to prove

these concepts and then to convict her goes against the ideas of fundamental fairness and

substantial justice as explained in Martinez, supra. However, as demonstrated above in Section I,

malice and causation were proven by the Commonwealth beyond a reasonable doubt. The jury

was given sufficient information from which to conclude reasonably that Appellant was the

perpetrator of M.H. 's injuries, and all three medical experfs in the case agreed that he died from a


                                                 18
totality of his injuries, (N.T. 11/29/16, p, 64; N.T. 12/7/16, pp. 320-21; N.T. 12/8/16, p. 302).

         The jury was instructed on the burden of proof and the meaning of "beyond a reasonable

doubt," and it still returned a unanimous guilty verdict. (N.T. 12/9/16, pp. 115� 17). The jury was

also instructed on circumstantial evidence and drawing reasonable conclusions therefrom based

on common sense and human experience: (N.T. 12/9/16, p, 122). The jury was further instructed

on malice and its specific application to the charge of Third Degree Murder. (N.T. 12/9/16, pp.

136�39). As for causation, it is not itself a specific element of any of the crimes charged but was

still, as demonstrated above in Sections IA�IC, proven beyond a reasonable doubt. The jury was

instructed as to the elements, and in finding the Appellant guilty of Third Degree Murder and

Aggravated Assault, it asserted its unanimous belief that the members believed, beyond a

reasonable doubt, that Appellant fa the one who inflicted the lnjuries which led to M.H.'s death.

Thus, the Appellant's Substantive Due Process rights were not violated.

   lV.      Appellant argues the evidence was insufficient as a matter of law to
            sustain her conviction fo1• Aggravated Assault, alleging the
            Commonwealth failed to establish causation where the Medical
            Examiner's report foiled to establish when the child)s injuries occurred,
            and tho Medical Examine!' conceded that the lnjurtes could have been
            inflicted when the child was not in Appellant's custody.

         Appellant's argument here centers on the same argument made in Section IC. but

substitutes the charge of Aggravated Assault for the charge of Third Degree Murder. As it was

already shown above that the Medical Examiner established to a reasonable degree of medical

certainty a time frame in which the injuries occurred, and it was established that the Appellant

was present with the child in that time frame. the jury was able to make the reasonable inference

that the injuries occurred in that window so as to find the Appellant guilty of Third Degree




                                                 19
Murder. Having made that finding, the evidence is also sufficient to sustain a conviction for

Aggravated Assault.

        Factually, the jury was presented with information from M.H. 's father. Paul Hunt, and

pat�mal grandmother, Barbara Baltsukonis, demonstrating that M.H. left their care on the

morning of the Friday before his death with no injuries. (N.T. 1215/16, pp. 79, 130). There was

additional evidence elicited to show that there was a poor relationship between Appellant and

Ms. Baltsukonis; this Information leads to a reasonable inference that, had M.H. received any

injuries while be was in the care of his grandmother, Appellant would have made it known to

others and/or would have sought care for M.H. (N.T, 12/5/16, p. 85-86, 122). As none of these

things happened, it was reasonable fol' the jury to be able to conclude that the injuries occurred

between the time Appellant received custody of M.H. Friday morning and the time that

Appellant told Grafton about bruising on M.H. Sunday afternoon. (There is no need to repeat the

legal basis for the arguments, as that iR demonstrated in Section IC above).

   V.      Appellant argues her con.victions for Third Degree Murder and
           Aggravated Assault were against the weight of the evidence, as the
           Commonwealth's evidence foiled to establish causation and the in.inrfos
           could have been inflicted during a time when the child was not in
           Appellant's custody, and as such these two convictions should shock the
           court's eouscicnce,

           Standards Goveruing WeigJ1t of the Evidence

        A true and genuine weight of the evidence challenge "concedes that sufficient evidence

exists to sustain the verdict." Commonwealth v. lv.(urray, 597 A.2d 111, 115 (Pa. Super. 1991)

(en bane) (Olszewski, J., concurring and dissenting), (citing Commonwealth v. Taylor, 471 A,2d

1228, 1230 (Pa.. Super. 1984)).

        The standard of'review for weight of the evidence challenges is as follows:


                                                20
                An allegation that the verdict is against the weight of the evidence is
                addressed to the discretion of the trial court. Appellate review of a weight
                claim is a review of the exercise of discretion, not of the underlying
                question of whether the verdict is against the weight of the evidence.
                Because the trial judge has had the opportunity to heal' and see the
                evidence presented, an appellate court will give the gravest consideration
                to the findings and reasons advanced by the trial judge when reviewing a
                trial court's determinatlon that the verdict is against the weight of the
                evidence.

Widmer, supra, 744 A.2d at 75I-52;·see also Commonwealth v, Cousar, 928 A.2d 1025, 1036

(Pa. 2007) (a verdict is against the weight of the evidence only when the verdict is so contrary to

the evidence as to shock one's sense of justice), The weight given to the direct and circumstantial

evidence at trial is a choice for the factfinder, Commonwealth v. West, 937 A.2d 516, 521 {Pa.

Super, 2007).

       The Superior Court has often emphasized that it is not only a "trial court's inherent

fundamental and salutary power, but its duty to grant a now trial when it believes the verdict was

against the weight of the evidence and resulted in a miscarriage of justice." Frisina v. Stanley,

185 A.2d 580, 581 (Pa _1962). A new trial should not be granted because of more conflict in

testimony or because a court on the same facts would have arrlved at a different conclusion.

Thompson v. City of Philadelphia, 493 A.2d 669, 672 (Pa. 1985). A new trial should only be

"awarded when the jury's verdict is so contrary to the evidence as to shock one's sense of justice

and the award of a new trial is imperative so that right may be given another opportunity to

prevail." Mammoccio v. 1818 Marke: Partnership, 734 A.2d 23, 28 (Pa. Super. 1999).

       It is the duty of an appellate court to give the gravest consideration to the findings and

reasons advanced by the trial judge. See Widmer, supra. A reviewing court "will not reverse the

denial pf a new trial, unless there was    fl   clear abuse of discretion or an error of law which

controlled the outcome of the case ... /' Commonwealth v. Brown, 648 A.2d 1177, 1189 (Pa.


                                                   21
Super. 1994). "One of the least assailable reasons for granting (or denying] a new trial is the

lower court's conviction that the verdict was [or was not] against the weight of the evidence and

that new process was [or was not] dictated by the interests of justice. With reasons for this action

given or appearing in the record, only a palpable abuse of discretion will cause us to overturn the

court's action." Id. at 1189�90. In determining whether or not the grant of a new trial constituted

an abuse of discretion, the entire record must be reviewed. Id, at 1190.

                An appellate court by its nature stands on a different plane than that of a
                trial court, Whereas a trial court's decision to grant 01' deny a new trial is.
                aided by an on-the-scene evaluation of the evidence an appellate court's
                review rests solely upon a cold record. Because of this disparity in vantage
                points) an appellate court is not empowered to merely substitute its
                opinion concerning the weight of the evidence for that of the trial judge.
                Rather our court has consistently held that appellate review of the trial
                court's grant of a new trial is to focus on whether the trial judge has
                palpably abused his discretion, as opposed to whether the appellate court
                can find support in the record for the jury's verdict. Id.

       To determine whether a trial court's decision constituted a palpable abuse of discretion,
an appellate court must "examine the record and nssesathe weight of the evidence .... 11 Id. Where

the record adequately supports the trial court, the trial court has acted within the limits of its

judicial discretion. Id. In this case, the evidence was of sufficient weight to support the jury's

finding of guilt.

        Appellant raises the argument of weight of the evidence claiming that her convictions for

Third Degree Murder and Aggravated Assault should shock the conscience of the court because

of the Commonwealth's failure to establish causation and because of the possibility the injuries

were inflicted when M.H. was not in her care. However, it has been shown repeatedly herein that

the Commonwealth did, in fact, establish causation. The verdict is not so contrary to the evidence

as to shock the conscience of this court because the evidence showed that M.H.'s death was         11


result of the totality of 1he clrcumstences, namely multiple blunt force traumas and a lack of

                                                  22
medical care> and experts from both sides did find or could find that the manner of death was

homicide. (N.T. 12/7/16, p. 320; N.T. 12/8/16, p. 279). It is not shocking to the conscience of

this court for the members of the jury to find that they believed the testimony of the witnesses

proving that the injuries were sustained while M.H. was in tho care oftbe Appellant so that they

could determine, beyond       1:1   reasonable doubt, that she was the perpetrator. It is further not

shocking to the conscience of this court that the jwy would believe that the situation was such

that M.H. would have survived had he been given medical care, and that it was Appellant's ·.

simultaneous failure to do so and hindrance of other means by which care could have been given

to M.H.   that led to his death.

        There are some facts of this case that are worth more weight than others, and this court

believes they were weighed appropriately by the jury. Testimony from Paul Hunt, Barbara

Baltuskonis, Elaine Teefy, and Linda Heissennan establishing that .tv.UI. did not hnve any

injuries Friday morning is powerful, especially when coupled with testimony from the Medical

Examiner that the inJtU'ies were most likely inflicted sometime on Friday night or Saturday. (N.T.

12/7/16, pp. 286, 327, 331). Toe Appellant argues for the possibility that the injuries occurred

when M.I-I. was not in her care; this mere possibility is not worth the same weight as the

multitude of evidence tending to prove the injuries were inflicted during her time with the child.

The fact that no medical care was sought for M.H. is undisputed and          WEIS   given appropriately

heavy weight when considered with the testimony showing that Appellant was the reason for the

lack of care,

        For all of the preceding reasons, Appellant's convictions fol' Third Degree Murder and

Aggravated Assault are not against the weight of the evidence, and this court did not abuse its

discretion in denying Appellant a new trial on these grounds.


                                                     23
   VL          Appellant argues the Court of Commou Pleas erred at N.T. 12/6/16, pp.
               82-83, where it held the testimony of Charles Albert's preliminary
               bearing could be rend to the jury.

          Charles Albert was a caseworker for Children and Youth Services who was assigned to

Appellant and M.H. after M.H. presented to the emergency department in January of 2015

following injuries to his eyes from seasoning salt. (N.T. 12/5/16, p. 244). He was a witness for

the Commonwealth who would have been called to testify during the course of Appellant's trial.

However, Mr. Albert could not appear8 and was declared by the court as "unavailable" after an in

camera hearing to that effect. Consequently, his pre-trial testimony from a previous hearing was

read into evidence fol' the jury.

               A.       Appellant argues that Mr. Albert was improperly declared
                        "unavailable" for the purpose of exception to fho hearsay
                        rule.

          Pennsylvania Rules of Evidence 804(a)(4) dictates that a declarant may be declared

unavailable as a witness and thus his statement becomes an exception to the rule against hearsay

if the declarant "cannot be present to testify at the trial or hearing because of a death or then-

existing infirmity, physical illness, or mental illness." Pa. R. E. 804(a)(4). See, e.g.,

Commonwealth v. McClendon, 874 A.2d 1223 (Pa. Super. 2005) (holding witness unavailable to

testify under Pa. R. E. 804(a)(4) given that there was nnrebutted testimony that witness suffered

both significant pain from kidney stones and decreased mental acuity from taking prescription

pain killers and trial court could not reasonably predict immediate resolution of witness'

condition).

           In the instant case) Mr. Albert bad been in a catastrophic car accident between the time of

the preliminary hearing and the trial. (N.T, 12/6/16, p. 54). M1·. Albert's mother testified during

8 Mr.   Albert was rendered unavailable duo to II catastrophlc car accident,
                                                            24
an in camera hearing to the nature and extent of his injuries. The accident caused Mr. Albert to

spend three weeks in a coma, followed by time spent requiring a respirator; he was also treated

for a brain injury and required on-going rehabilitation. (N.T. 1216/16, pp. 54�55). Further, Mrs.

Albert testified that Mr. Albert requires the use of a wheelchair and physical assistance to get

around. (N.T. 12/6/16, p. 56). She explained that Mr. Albeit required speech therapy, and at the

time of the hearing, he was able to understand what was said to him but could not articulate his

thoughts. (N.T. 12/6/16, p. 57). His memory, as described by bis mother, was observed to be

"faulty at best." (N. T. 12/6/16, p. S 8), She was specifically able to highlight his inability to

recognize his family following his accident and his ongoing difficulties remembering past

events, specifically between August of 2014 and November of 2015. (12/6/16, pp. 59-61).

Importantly, bringing Mr. Albert in to testify posed a significant risk to. his health. These facts

properly qualify Mr. Albert as "unavailable" under Rule 804(a)(4), and so his testimony having

been.read in was pursuant to a proper exception to the rule against hearsay.

             B.   Appellant argues that defense counsel dicl not have a Jull
                  and fair epportnnity to cross-examine Mr. Albert itt the
                  prelimluary hearing.

       Defense counsel for both co-defendants, as well as the defendants themselves, were

present at the preliminary hearing where Mr. Albert's testimony was elicited. During that

hearing, Mr. Albert was cross-examined by counsel for both defendants, spanning 18 pag� of

the preliminary hearing transcript. (N. T. 5/5/15, pp. 14�32). The opportunity to cross examine the

witness was present and utilized by defense counsel. Appellant's argument to this point is

meritlesa.




                                                25
   VII.    Appellant argues the Court of Common Pleas erred at N.T. 12/8/16, pp.
           176-181, where the defense's objection to the Commonwenlth's question
           of co-defendant Grafton seeking to elicit that he relled on the Appellant's
           ��truthfulness" was overruled, alleging that this question called for
           madmlssible character evidence where the same was not first put at issue
           by Appellant,

       The Commonwealth, in cross-examining co-defendant Grafton, inquired of Grafton

whether he had relied on Appellant's truthfulness in regards to what happened to M.H. on

January 31, 2015. because Grafton had no first-band knowledge of what had occurred, (N.T.

12/8/16, pp. 175-76). In relevant part, the Notes of Testimony provide the conversation as

follows;

              Commonwealth: You said she told you things about bruises, but
              do you have any flrsthand knowledge about any bruises that were
              on [NJ.I-I.] on Saturday tho 3191?
              GJ"dtom Like seeing them myself you mean?
              C; Yes.
              G:No.
              C: Do you have any firsthand knowledge as to what may have
              caused any bruises that [Appellant] said she noticed on Saturday
              the 31st?

              G:No.

              C:, So whatever information you had Saturday night about the
              existence of bruises and the cause of the bruises would have come
              from [Appellant]?
              G: Yes, sir.                      .
              C: So at that point, you're left to rely on her truthfulness?
              G:Yes.

(N.T. 1218/16, pp. 175-76). Appellant's trial attorney argued that the Commonwealth was

improperly putting Appellant's character into question where the same was not first put at issue

by her, and the Commonwealth responded by arguing that it was not character evidence for the

establishment of'reputatlon. (N.T. 12/8/16, pp. 176-177). This court overruled defense counsel's

objection, noting that all witnesses put the Appellant's reputation or credibility at issue, and

                                               26
agreeing with the Commonwealth that this was not a. utilization of improper character evidence,

because it was not character evidence at all. (N.T. 12/81161 pp. 179·181).

       In this circumstance, the "truthfulness" question is only evidence to show Grafton's

actions were pursuant to reliance on Appellant's words because Grafton had no firsthand

knowledge. In his cross-examination, Grafton explained to the Commonwealth that he invited

Appellant and M.H. to attend a bowling outing on Friday night, January 30. (N.T. 12/8/16, p.

175). Appellant declined, telling Grafton that M.H. "wasn't feeling well." (N.T. 12/8/16, p. 175).

The Commonwealth establishes that Grafton had no firsthand knowledge of M.H. 's condition at

this time and instead relied on Appellant's truthfulness in believing that was the case. (N.T.

12/8/16, p, 175).

       This court's overruling of the objection was based in the fact that the Commonwealth's

questions did not bring Appellant's character for truthfulness into question; the Commonwealth

was not seeking to attack her reputation. Rather, the Commonwealth was establishing that the

only information Grafton had about M.H.'s condition and the bruising came from Appellant, and

his decision not to seek medical care fol' the child immediately was bused on his belief that

Appellant was telling him the truth about the origin of the bruises and M.H.>s condition. (N.T.

12/8/16, p. l 76). Under this specific set of circumstances, this Court properly overruled defense

counsel's objection.

CONCLUSION:

       This court properly found sufficient evidence to sustain both of Appellant' s convictions

for Third Degree Murder and Aggravated Assault. Additionally, this court did not abuse its

discretion in holding the jury's verdict not to be against the weight of the evidence or in finding

the requisite malice and causation proven beyond a reasonable doubt to uphold the jury's verdict.


                                                27
This court also properly admitted both Mr. Albert's testimony and the Commonwealth's question

regarding truthfulness. For those reasons, the Judgment of Sentence should be affirmed on



                                                                         c:::�
appeal.




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                                             ,,, BY Til�URT:



                                                  JAMES F. NILON, JR., J,




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