J-S16029-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                          Appellee

                     v.

MICHELE RENAE HUNTER,

                          Appellant                  No. 1298 MDA 2014


              Appeal from the Judgment of Sentence April 2, 2014
               In the Court of Common Pleas of Franklin County
              Criminal Division at No(s): CP-28-CR-0001470-2011

BEFORE: PANELLA, OLSON AND OTT, JJ.

MEMORANDUM BY OLSON, J.:                               FILED JUNE 02, 2015

      Appellant, Michele Renae Hunter, appeals from the judgment of

sentence entered on April 2, 2014, as made final by the denial of her post-

sentence motion on July 1, 2014. We affirm.1

      This Court has previously outlined the factual background of this case

as follows:

      The four-year-old victim [(“Victim”)], is [Appellant’s husband’s
      (“Husband’s”)] biological son and [Appellant’s] stepson. While in
      [Appellant’s] care, [Victim] suffered a severe brain injury


1
  This appeal is subject to dismissal in its entirety for Appellant’s failure to
comply with Pennsylvania Rule of Appellate Procedure 2135, which pertains
to the length of briefs. See Pa.R.A.P. 2101; Commonwealth v. Spuck, 86
A.3d 870, 872–874 (Pa. Super. 2014), appeal denied, 99 A.3d 77 (Pa. 2014)
and 109 A.3d 679 (Pa. 2015). Rule 2135 requires that a brief longer than
30 pages contain a certification that it is less than 14,000 words. Pa.R.A.P.
2135(d). Appellant’s 72-page brief lacks such a certification. We exercise
our discretion, however, and address the merits of this appeal.
J-S16029-15


      (subdural hemorrhage), which led to cardiopulmonary arrest.
      The attending pediatrician on staff at the hospital where [Victim]
      was taken for treatment opined that there is a high probability
      that he will suffer lasting brain damage as a result of the injury.2
      The doctor also noticed that [Victim] had bruising over his entire
      back, consistent with hand prints, as well as on both arms and
      elbows. The doctor noted that child abuse was suspected.

      Initially, [Appellant] told the police that on March 16, 2011,
      [Victim] had been upstairs and had fallen and reopened an old
      cut on his chin. She also told the officers that the boy had
      passed out in the bathroom, fell, and was non-responsive and
      had difficulty breathing.       Days later, [Appellant] told the
      authorities that she had not given accurate information
      regarding how the child became injured and that, in fact, on
      March 15, 2011, she had pushed the child down, causing him to
      hit his head. She said that he became unresponsive and that
      she was unable to rouse him by carrying him to the bathroom
      and splashing cold water in his face. She said that the boy
      remained relatively unresponsive (“limp”) throughout the day,
      falling in and out of periods of responsiveness. He was unable to
      move his limbs or sit up on his own.

      [Appellant] also told the authorities that throughout the day on
      March 15, she began sending Husband texts at work, describing
      the boy’s deteriorating condition over a 36–hour span. [Victim]
      was unable to walk or sit up on his own that evening and was
      put to bed by Husband and [Appellant], both of whom checked
      on him throughout the night. The next morning, March 16,
      [Victim] was able to walk with some assistance, although he
      continued to exhibit many of the physical symptoms from the
      day before. That evening, as Husband carried his son into his
      bedroom, [Victim] began gasping for breath and went into
      cardiac arrest. He was rushed to the hospital.

Commonwealth v. Hunter, 60 A.3d 156, 157–158 (Pa. Super. 2013)

(citations and certain footnote omitted).


2
   In fact, at [Appellant’s] bail hearing, [Victim]’s foster mother testified that
he is unable to walk, talk, swallow food, communicate or play. He has a
shunt in his head to drain fluid and a permanent feeding tube that goes into
his stomach and intestines.


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        The relevant procedural history of this case is as follows.         On

September 19, 2011, Appellant was charged via criminal information with

aggravated assault,3 simple assault,4 endangering the welfare of a child,5

and conspiracy to endanger the welfare of a child.6 On September 21, 2011,

Appellant waived arraignment.      On October 17, 2011, Appellant filed her

omnibus pre-trial motion.        That omnibus pre-trial motion only sought

suppression of text messages Appellant sent Husband based upon the

spousal privilege. It did not seek suppression of Appellant’s confession. On

February 14, 2012, the trial court denied the motion to suppress text

messages. Appellant filed an interlocutory appeal and, on January 15, 2013,

this Court affirmed. Hunter, 60 A.3d at 162.

        On February 22, 2013, Appellant filed a second pre-trial motion to

suppress.    In this motion, Appellant alleged that her confession was given

involuntarily.   On February 27, 2013, the trial court denied the motion to

suppress the confession as untimely. On March 20, 2013, Appellant filed a

motion to reconsider.     On April 18, 2013, the trial court conducted an

evidentiary hearing on the motion to reconsider. On April 26, 2013, the trial

court issued an order and opinion denying the motion for reconsideration.


3
    18 Pa.C.S.A. § 2702(a)(1).
4
    18 Pa.C.S.A. § 2701(a)(1).
5
    18 Pa.C.S.A. § 4304(a)(1).
6
    18 Pa.C.S.A. §§ 903, 4304.


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      On June 21, 2013, Appellant filed a motion in limine to exclude a video

which showed a day in the life of Victim. On July 29, 2013, the trial court

denied   Appellant’s   motion   in   limine.   On   January   17,   2014,   the

Commonwealth filed a motion in limine to permit admission of prior bad acts

evidence. On January 29, 2014, the trial court granted the Commonwealth’s

motion in limine. Trial commenced on February 4, 2014. On February 10,

2014, the jury found Appellant guilty of all charges. On April 2, 2014, the

trial court sentenced Appellant to an aggregate term of 9 to 20 years’

imprisonment.

      On April 11, 2014, Appellant filed a post-sentence motion. On July 1,

2014, the trial court issued an order and opinion denying Appellant’s post-

sentence motion.   This timely appeal followed. On July 29, 2014 the trial

court ordered Appellant to file a concise statement of errors complained of

on appeal (“concise statement”).      See Pa.R.A.P. 1925(b).    On August 8,

2014, Appellant filed her concise statement. On August 26, 2014, the trial

court issued its Rule 1925(a) opinion.7

      Appellant presents seven issues for our review:

    1. Did the trial court err by denying Appellant’s motion for
       suppression of evidence filed on February 22, 2013 because said
       motion was timely when Appellant filed an interlocutory appeal
       and filed said motion the same day the record was remitted back
       to the trial court?

7
  We are grateful to the trial court for its thorough, 61-page Rule 1925(a)
opinion. The trial court meticulously addressed each argument raised by
Appellant and the Commonwealth and issued opinions contemporaneously
with several of its rulings.


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  2. Did the trial court err by denying Appellant’s motion to exclude
     proposed exhibits which sought to exclude the day in the life of
     [Victim] video because the probative value was outweighed by
     the prejudicial effect?

  3. Did the trial court err by granting the Commonwealth’s motion to
     admit other crimes evidence filed January 17, 2014?

  4. Did the trial court err by ruling that merger did not apply to the
     aggravated assault and simple assault convictions because[,] as
     evidenced by the jury’s question at 1:43 p.m.[,] the jury was led
     to believe that if the jury believed that Appellant pushed the
     Victim, the jury must convict the Appellant of both aggravated
     assault and simple assault because it was the same transaction
     or occurrence?

  5. Did the trial court abuse its discretion by imposing an unduly
     harsh and unreasonable sentence when it imposed sentences in
     the upper end of the aggravated range and ordered all sentences
     to be served consecutively because[,] at the time of the
     offense[,] Appellant did not have a prior record, showed genuine
     remorse about the Victim’s injuries, and was reluctant to call for
     assistance based on the repeated abuse she sustained during the
     marriage?

  6. Did the trial court abuse its discretion when [it] denied
     Appellant’s motion for judgment of acquittal because there was
     insufficient evidence to conclude that Appellant injured the
     Victim, or, in the alternative, if Appellant did injure the Victim,
     there was insufficient evidence to conclude that Appellant
     intended to cause the injuries the Victim sustained?

  7. Was the jury’s verdict so against the weight of the evidence as
     presented at trial so as to shock one’s sense of justice because
     Appellant did not have the mens rea to cause the injuries the
     Victim sustained?

Appellant’s Brief at 7-8 (complete capitalization and emphasis removed).

     In her first issue, Appellant contends that the trial court erred by

denying, as untimely, her February 22, 2013 motion to suppress her



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confession. We conclude that this issue is waived. An issue not included in

a concise statement, or fairly subsumed therein, is waived. Newman Dev.

Group of Pottstown, LLC v. Genuardi's Family Mkt., Inc., 98 A.3d 645,

665 n.24 (Pa. Super. 2014) (en banc), citing Pa.R.A.P. 1925(b)(4)(vii).

         In this case, Appellant’s concise statement included the following

issue:

         The trial court committed an error of law by denying
         [Appellant’s] motion for evaluation and suppression of evidence
         filed on February 22, 2013 because [Appellant] was mentally
         incapable of providing such incriminating statements under the
         laws of Pennsylvania and the United States.

Concise Statement, 8/8/14, at 1.        The issue, as framed in the concise

statement, only dealt with the substantive contention that Appellant lacked

the mental capacity to make the confession challenged in the February 22,

2013 motion. It did not address the timeliness reason for the denial of the

motion. As noted above, in her statement of questions involved section of

her brief, Appellant changed course and attacked the procedural reason for

the denial of the motion to suppress. This change, however, was too late.

Appellant should have sought leave of the trial court to amend her concise

statement.     By failing to amend her concise statement, Appellant waived

consideration of the procedural reason for the denial of her motion to

suppress.

         In her second issue, Appellant contends that the trial court erred by

denying her motion in limine to exclude the day in the life of Victim video.



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She contends that the video was unduly prejudicial and, therefore, should

have been excluded pursuant to Pennsylvania Rule of Evidence 403.            This

argument is also waived. As this Court has stated:

      Appellant has the duty to ensure that all documents essential to
      [her] case are included in the certified record. As this Court has
      previously stated, it is the obligation of the [a]ppellant to make
      sure that the record forwarded to an appellate court contains
      those documents necessary to allow a complete and judicious
      assessment of the issues raised on appeal. If a document is not
      in the certified record then this Court cannot take it into account.

                                     ***

      A failure by appellant to insure that the original record certified
      for appeal contains sufficient information to conduct a proper
      review constitutes waiver of the issue sought to be examined.

Commonwealth v. Manley, 985 A.2d 256, 263 (Pa. Super. 2009), appeal

denied, 996 A.2d 491 (Pa. 2010) (internal alteration, quotation marks, and

citations omitted).

      In Manley, the defendant argued that a photo array was unduly

suggestive and, therefore, should have been excluded. Id. The defendant,

however, failed to ensure that the photo array was included in the certified

record.   Id.    Accordingly, this Court deemed that issue waived.           Id.

Similarly, in the case sub judice, Appellant failed to ensure that the day in

the life of Victim video was included in the certified record. Without viewing

the video, it is impossible for us to determine if the video were unduly

prejudicial.   Accordingly, Appellant’s second issue on appeal is waived for

failing to ensure that the video was included in the certified record.



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        In her third issue, Appellant contends that the trial court erred by

admitting prior bad acts evidence. “When we review a trial court’s ruling on

admission of evidence, we must acknowledge that decisions on admissibility

are within the sound discretion of the trial court and will not be overturned

absent an abuse of discretion or misapplication of law.” Deeds v. Univ. of

Pa. Med. Ctr., 110 A.3d 1009, 1017 (Pa. Super. 2015).

        Pennsylvania Rule of Evidence 404(b) provides that:

        (1) Prohibited Uses. Evidence of a crime, wrong, or other act is
        not admissible to prove a person’s character in order to show
        that on a particular occasion the person acted in accordance with
        the character.

        (2) Permitted Uses. This evidence may be admissible for another
        purpose, such as proving motive, opportunity, intent,
        preparation, plan, knowledge, identity, absence of mistake, or
        lack of accident. In a criminal case this evidence is admissible
        only if the probative value of the evidence outweighs its potential
        for unfair prejudice.

        (3) Notice in a Criminal Case. In a criminal case the prosecutor
        must provide reasonable notice in advance of trial, or during trial
        if the court excuses pretrial notice on good cause shown, of the
        general nature of any such evidence the prosecutor intends to
        introduce at trial.

Pa.R.Evid. 404(b).

        Consistent with Rule 404(b)(3), the Commonwealth moved in limine to

admit     Appellant’s   prior   bad   acts.    The   trial   court   granted   the

Commonwealth’s motion in limine and admitted the following Rule 404(b)

evidence. Nicholas Ranney, a caseworker with Franklin County Children and

Youth Services, testified that on three occasions he visited Appellant,



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Husband, and Victim. On each of those three visits, he observed bruising on

Victim.   See generally N.T., 2/6/14, at 163-179.     Verne Wadel, another

caseworker with Franklin County Children and Youth Services, testified that

he also observed bruising on Victim during prior visits. Id. at 190. Carol

Fortney, a dental hygienist at Victim’s dentist office, testified regarding

bruising she observed at his appointment. See generally id. at 132-143.

      As noted in the trial court’s thorough opinion, this case is similar to

Commonwealth v. Sherwood, 982 A.2d 483 (Pa. 2009). In Sherwood,

the defendant was charged with first-degree murder for the beating death of

his four-year-old stepdaughter. Id. at 486. The Commonwealth offered into

evidence prior instances in which the defendant beat the victim. Id. at 497.

Our Supreme Court held that such evidence was properly admitted under

Rule 404(b).   Id. at 497.   Specifically, our Supreme Court held that prior

bad acts evidence is admissible when the bad acts were critical to

understanding the history of events related to the crime. Id. Applying that

rule, our Supreme Court held that the prior beatings were critical to

understanding that the killing of the victim was not an accident or mistake

and that the defendant possessed the requisite mens rea for first-degree

murder. See id.

      Likewise, in Commonwealth v. Powell, 956 A.2d 406 (Pa. 2008), the

defendant was charged with first-degree murder for the beating death of a

six-year-old child.   The trial court admitted evidence that the defendant



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abused the victim’s mother and threw a glass of water at the victim. Id. at

419-420.   Our Supreme Court reasoned that such evidence was properly

used to show the relationship between the defendant, the victim, and the

victim’s mother.       Id. at 419.   Our Supreme Court also reasoned that

throwing a glass of water at the victim was probative to the chain of abuse

suffered by the victim at the hands of the defendant. Id. at 420.

      The same is true in the case sub judice. “[Appellant] told the police

that on March 16, 2011, [Victim] had been upstairs and had fallen and

reopened an old cut on his chin. She also told the officers that the boy had

passed out in the bathroom, fell, and was non-responsive and had difficulty

breathing.” Hunter, 60 A.3d at 158. Both at trial and on appeal, Appellant

argues that any injury she caused was an accident. E.g. Appellant’s Brief at

32. The Commonwealth could use the prior bad acts testimony to show why

Appellant’s original claim of accident was implausible and to prevent

Appellant from resurrecting this story.       In other words, the prior bad acts

evidence was admissible to prove absence of mistake, lack of accident, ill-

will, and/or malice.

      Appellant contends that Sherwood and Powell are distinguishable

from the case at bar “because in those cases the defendants were alleged to

have caused blunt force trauma which ultimately led to the deaths of their

victims.” Appellant’s Brief at 34. This is a distinction without a difference.

Our Supreme Court’s decisions in Sherwood and Powell did not turn on the



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fact that the defendants were charged with murder. Rather, they turned on

the fact that at issue in each case was whether the defendant possessed the

requisite mens rea. Furthermore, both Sherwood and Powell relied upon

the res gestae exception.8 That exception is likewise applicable in this case.

The Commonwealth was entitled to show the complete history of the case,

including Appellant’s prior abuse of Victim.

      The probative value of this prior bad acts evidence also outweighed

the risk of unfair prejudice.    As noted above, this evidence was highly

probative of whether Appellant accidentally caused Victim’s injuries. On the

other hand, the risk of unfair prejudice was low.            “Unfair prejudice

supporting exclusion of relevant evidence means a tendency to suggest

decision on an improper basis or divert the jury’s attention away from its

duty of weighing the evidence impartially.”      Parr v. Ford Motor Co., 109

A.3d 682, 696 (Pa. Super. 2014) (en banc) (internal quotation marks and

citations omitted). There were no images entered into evidence relating to

the prior bad acts.     Instead, the only evidence offered was testimony

regarding bruises observed on Victim.          Thus, there was a substantially

reduced risk that the jury would focus on the prior bad acts evidence when it

had before it extensive testimonial and documentary evidence relating to the

crimes at issue in this case.   Furthermore, the trial court gave a detailed


8
  The res gestae exception allows “evidence of other acts to be admitted to
tell the complete story.” Commonwealth v. Towles, 106 A.3d 591, 603
(Pa. 2014) (internal alteration, quotation marks, and citation omitted).


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limiting instruction which lessened the risk the jury would inappropriately

consider the prior bad act evidence. See N.T., 2/4/14, at 194. Accordingly,

we conclude that the trial court did not abuse its discretion in granting the

Commonwealth’s motion in limine and admitting the prior bad acts evidence.

      In her fourth issue, Appellant contends that the trial court erred by not

merging   her    simple   assault   and   aggravated   assault   convictions   for

sentencing.     “A claim that the trial court imposed an illegal sentence by

failing to merge sentences is a question of law[;]” therefore, our standard of

review is de novo and our scope of review is plenary. Commonwealth v.

Orie, 88 A.3d 983, 1020 (Pa. Super. 2014), appeal denied, 99 A.3d 925 (Pa.

2014).

      Section 9765 of the Sentencing Code provides that:

      No crimes shall merge for sentencing purposes unless the crimes
      arise from a single criminal act and all of the statutory elements
      of one offense are included in the statutory elements of the
      other offense. Where crimes merge for sentencing purposes, the
      court may sentence the defendant only on the higher graded
      offense.

42 Pa.C.S.A. § 9765.      “Accordingly, merger is appropriate only when two

distinct criteria are satisfied: (1) the crimes arise from a single criminal act;

and (2) all of the statutory elements of one of the offenses are included

within the statutory elements of the other.” Commonwealth v. Raven, 97

A.3d 1244, 1249 (Pa. Super. 2014), appeal denied, 105 A.3d 736 (Pa. 2014)

(citation omitted).

      As this Court has explained:


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      The threshold question is whether Appellant committed one
      solitary criminal act. The answer to this question does not turn
      on whether there was a break in the chain of criminal activity.
      Rather, the answer turns on whether the actor commits multiple
      criminal acts beyond that which is necessary to establish the
      bare elements of the additional crime. If so, then the defendant
      has committed more than one criminal act. This focus is
      designed to prevent defendants from receiving a volume
      discount on crime[.]

Commonwealth v. Ousley, 21 A.3d 1238, 1243 (Pa. Super. 2011), appeal

denied, 30 A.3d 487 (Pa. 2011) (internal alteration, quotation marks, and

citation omitted).

      It is well-settled that the statutory elements of simple assault are

included within the statutory elements of aggravated assault.             See

Commonwealth v. Pettersen, 49 A.3d 903, 907 (Pa. Super. 2012), appeal

denied, 63 A.3d 776 (Pa. 2013).       Thus, if Appellant’s simple assault and

aggravated assault convictions arose out of the same criminal act, they must

merge for sentencing purposes.    If, on the other hand, Appellant’s simple

assault and aggravated assault convictions arose out of separate criminal

acts, they do not merge for sentencing purposes.

      In Commonwealth v. Jenkins, 96 A.3d 1055 (Pa. Super. 2014),

appeal denied, 104 A.3d 3 (Pa 2014), relying upon our Supreme Court’s

decisions in Commonwealth v. Comer, 716 A.2d 593 (Pa. 1998),

Commonwealth         v.   Anderson,    650    A.2d   20   (Pa.   1994),   and

Commonwealth v. Weakland, 555 A.2d 1228 (Pa. 1989), this Court held

that we must examine the charging documents when determining if two



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convictions arose from a single criminal act.      Jenkins, 96 A.3d at 1060.

Specifically, this Court held that, “[w]e must determine whether [the

defendant’s] actions . . . constituted a single criminal act, with reference to

elements of the crime as charged by the Commonwealth.” Id. (internal

quotation marks and citation omitted; emphasis added).

      In Jenkins, the defendant was charged with robbery and simple

assault.    Id. at 1056.   In the criminal information, the Commonwealth

alleged that Jenkins committed robbery because he “assaulted [the victim]

by punching him in the face causing a facial laceration and fractured jaw.

[The victim] was forced to the ground, restrained and searched for personal

belongings, which were stolen from [the victim].” Jenkins, 96 A.3d at 1061

(citation   omitted;   emphasis   removed).       On   the    other   hand,    the

Commonwealth alleged that Jenkins committed simple assault because

“during the course of a robbery, [Jenkins and his codefendant] assaulted

[the victim] causing a facial laceration that required stitches and a fractured

left jaw.” Id. (internal alterations and citation omitted).

      This Court held that the criminal information charged Jenkins with

simple assault and robbery for distinct criminal acts.            Id. at 1062.

Specifically, this Court held that the simple assault was charged for the

punch to the face.       Id.   The criminal information, however, charged

separately that Jenkins inflicted bodily injury upon the victim (an element of

robbery) by forcing him to the ground and restraining him.            Id.   As the



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criminal information charged Jenkins with simple assault and robbery for

distinct criminal acts, this Court held that the two crimes did not merge for

sentencing purposes.      Id.   This Court noted, however, that, “[h]ad the

Commonwealth listed only the assaultive conduct that formed the basis of

the simple assault charge against Jenkins at the robbery charge, we would

conclude that Jenkins did not commit multiple criminal acts beyond that

which is necessary to establish the bare elements of the additional crime.”

Id. (internal quotation marks and citation om

        In this case, the criminal information charged as follows with respect

to aggravated assault, “[Appellant], did, unlawfully attempt to cause serious

bodily injury to another, or cause such injury intentionally, knowingly, or

recklessly under circumstances manifesting extreme indifference to the

value of human life, to wit, [Appellant] did assault a [four-]year[-]old male,

resulting in serious bodily injury.” Information, 9/19/11, at 1. The criminal

information charged as follows with respect to simple assault: “[Appellant],

did, attempt to cause or intentionally, knowingly, or recklessly cause bodily

injury to another, to wit, [Appellant] did cause physical harm to a [four-

]year[-]old male, resulting in injuries.” Id. at 3.

        The plain language of the information makes evident that Appellant

was charged with simple assault and aggravated assault for distinct criminal

acts.    In particular, the information only refers to a single serious bodily

injury with respect to the aggravated assault charge, i.e., the brain injury,



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while it refers to multiple injuries with respect to the simple assault charge,

i.e., the bruises. The Commonwealth made this distinction clear during its

closing argument. The Commonwealth argued, “[Appellant] told you already

repeatedly from day one that she caused those bruises on his back, those

fingerprint bruises they found on him when the paramedics got there, when

the hospital saw him at the Hershey Medical Center.         She admits that.

That’s what [s]imple [a]ssault is.” N.T., 2/10/14, at 62. On the other hand,

the Commonwealth discussed the brain injuries suffered by Victim when

urging the jury to convict Appellant of aggravated assault. See id. at 54-61.

      Appellant argues that she committed a single criminal act over a 36-

hour time period. This argument is without merit. As noted above, there

need not be a break in the chain of criminal activity in order for distinct

criminal acts to have occurred. This Court’s decision in Jenkins highlights

this point. The distinct criminal acts may have occurred within seconds of

one another, nevertheless they were distinct for purposes of our merger

analysis. In Jenkins, the defendant punched the victim, causing the victim

to fall to the ground, and then restrained the victim on the ground while

stealing his property.    This Court found that constituted two separate

criminal acts, the punch and the restraint on the ground. The same is true

in the case sub judice. Appellant’s act of pushing Victim to the ground and

causing a severe brain injury (aggravated assault), was immediately

followed by her grabbing him and causing bruising (simple assault). There



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was no break in the chain of criminal activity, yet, pushing Victim and

grabbing him and causing bruising on Victim’s back were two distinct

criminal acts.

      Finally, Appellant contends that a question asked by the jury indicates

that merger is appropriate. A question the jury asked, however, is not proof

that the jury misapplied the law. We assume that the jury followed the law

as instructed by the trial court. Commonwealth v. Coon, 26 A.3d 1159,

1166 (Pa. Super. 2011), appeal denied, 40 A.3d 1233 (Pa. 2012) (citation

omitted). Appellant does not argue that the trial court’s instructions were

incorrect.   Instead, she merely argues that the fact the jury asked a

question indicates that she committed one criminal act.        As such, we

conclude that the trial court correctly determined that the simple assault

charge should not merge with the aggravated assault charged for the

purposes of sentencing and Appellant’s sentence was legal.

      In her fifth issue on appeal, Appellant argues that her sentence is

excessive.   This issue challenges the discretionary aspects of Appellant’s

sentence.    See Commonwealth v. Ali, 2015 WL 926952, *21 n.4 (Pa.

Super. Mar. 5, 2015).    Pursuant to statute, Appellant does not have an

automatic right to appeal the discretionary aspects of her sentence. See 42

Pa.C.S.A. § 9781(b).     Instead, Appellant must petition this Court for

permission to appeal the discretionary aspects of her sentence. Id.

      As this Court has explained:



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      To reach the merits of a discretionary sentencing issue, we
      conduct a four-part analysis to determine: (1) whether appellant
      has filed a timely notice of appeal, Pa.R.A.P. 902, 903; (2)
      whether the issue was properly preserved at sentencing or in a
      motion to reconsider and modify sentence, Pa.R.Crim.P. [720];
      (3) whether appellant’s brief has a fatal defect, Pa.R.A.P.
      2119(f); and (4) whether there is a substantial question that the
      sentence appealed from is not appropriate under the Sentencing
      Code, 42 Pa.C.S.A. § 9781(b).

Commonwealth v. Trinidad, 96 A.3d 1031, 1039 (Pa. Super. 2014),

appeal denied, 99 A.3d 925 (Pa. 2014) (internal alteration and citation

omitted). “Because Appellant neglected to include a separate Rule 2119(f)

statement in [her] brief and because the Commonwealth has objected to this

omission, we deem Appellant’s challenge to be waived.” Id.

      In her sixth issue, Appellant contends that the evidence was

insufficient to find her guilty. “Whether sufficient evidence exists to support

the verdict is a question of law; thus, our standard of review is de novo and

our scope of review is plenary.”    Commonwealth v. Patterson, 91 A.3d

55, 66 (Pa. 2014) (citation omitted).        In reviewing a sufficiency of the

evidence claim, we must determine “whether viewing all the evidence

admitted at trial in the light most favorable to the [Commonwealth], there is

sufficient evidence to enable the fact-finder to find every element of the

crime beyond a reasonable doubt.”      Commonwealth v. Thompson, 106

A.3d 742, 756 (Pa. Super. 2014) (citation omitted). “The evidence need not

preclude every possibility of innocence and the fact-finder is free to believe

all, part, or none of the evidence presented.” Commonwealth v. Haynes,



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2015 WL 1814017, *15 (Pa. Super. Apr. 22, 2015) (internal quotation marks

and citation omitted).

      Appellant first contends that there was insufficient evidence to

conclude that she injured Victim. This argument is without merit. At trial,

Appellant conceded that she told police during an interview that she was the

individual who pushed Victim and caused his injuries. N.T., 2/7/14, at 84.

The videotape of that confession was played for the jury.               From this

evidence alone, the jury could conclude that Appellant was the individual

that caused Victim’s injuries. All of Appellant’s arguments to the contrary go

to the weight of the evidence, and not its sufficiency.

      Second, Appellant contends that, even if she did cause Victim’s

injuries, she did not have the requisite mens rea for aggravated assault.

First-degree “aggravated assault is established when an actor ‘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.’”      Commonwealth v. Spruill, 80

A.3d 453, 455 (Pa. 2013), quoting 18 Pa.C.S.A. § 2702(a)(1). In this case,

the Commonwealth argued that Appellant acted recklessly.                See N.T.,

2/10/14, at 56. As this Court has explained:

      To prevail on a theory of recklessness in a prosecution for
      aggravated assault, the Commonwealth must show that the
      assailant’s recklessness rose to the level of malice, a crucial
      element of aggravated assault. Malice consists of a wickedness
      of disposition, hardness of heart, cruelty, recklessness of



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         consequences and a mind regardless of social duty, although a
         particular person may not be intended to be injured.

Commonwealth v. Riggs, 63 A.3d 780, 784–785 (Pa. Super. 2012),

appeal denied, 63 A.3d 776 (Pa. 2013) (internal quotation marks omitted).

         This Court has found recklessness when a caregiver abused a young

child.    For example, in Commonwealth v. Smith, 956 A.2d 1029 (Pa.

Super. 2008) (en banc), appeal denied, 989 A.2d 917 (Pa. 2010), the victim

suffered from shaken baby syndrome.                 Id. at 1031.       A pediatric

neurosurgeon testified that these injuries were not the result of playful

shaking, but instead were caused by violent shaking.          Id. at 1037.    This

Court held that “[n]othing more than common sense is needed to know that

the violent shaking of an infant child provides for a substantial and

unjustifiable risk of serious bodily injury.” Id. Thus, this Court concluded

that the evidence was sufficient to convict the defendant of aggravated

assault. Id.

         In Commonwealth v. Hardy, 918 A.2d 766 (Pa. Super. 2007),

appeal denied, 940 A.2d 362 (Pa. 2008), the victim died from injuries

suffered as a result of shaken baby syndrome. Id. at 770. The defendant

was      charged   with   third-degree    murder,   which   requires   the   same

recklessness as is required for aggravated assault.         This Court concluded

that there was sufficient evidence of recklessness because:

         There was expert testimony that [the v]ictim died because
         someone grabbed him and slammed him against something such
         that immense force was applied to his head. There was also


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       expert testimony that someone grabbed [the v]ictim violently,
       squeezed him so as to fracture his ribs, shook him, and caused
       his head to strike a hard object with enough force to produce
       bleeding, swelling and, ultimately, death.

Id. at 774.

       The same pediatric neurosurgeon that testified in Smith testified in

the case sub judice.    At trial, he testified that Victim “suffered a rather

severe traumatic brain injury. . . . [I]t was abusive in nature.” N.T., 2/6/14,

at 146.    He also opined that, “It’s my view – and I say this within a

reasonable degree of medical certainty – that [Victim] suffered a severe

traumatic brain injury from allegedly being thrown to the ground and striking

his head on the floor[.]”    Id. at 148.     The pediatric neurosurgeon also

stated, “[w]hat I’m sure of is that whatever it was that happened was

inflicted and not accidental and that it caused a severe brain injury.” Id. at

174.    This testimony was essentially the same testimony that the same

pediatric neurosurgeon gave in Smith, and which we deemed sufficient to

conclude that the defendant in Smith acted recklessly.

       As in Hardy, the evidence in the case at bar, viewed in the light most

favorable to the Commonwealth, showed that Appellant pushed Victim to the

ground, causing severe brain trauma. Appellant makes several arguments

relating to how she lacked the requisite mens rea for aggravated assault.

These arguments, however, view the evidence in the light most favorable to

Appellant and go to the weight of the evidence instead of its sufficiency.

Therefore, we conclude that there was sufficient evidence to prove that


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Appellant acted recklessly.   Accordingly, there was sufficient evidence to

convict her of aggravated assault.

      Finally, Appellant contends that the conviction is against the weight of

the evidence. A challenge to the weight of the evidence must first be raised

at the trial level “(1) orally, on the record, at any time before sentencing;

(2) by written motion at any time before sentencing; or (3) in a post-

sentence motion.”     In re J.B., 106 A.3d 76, 97 (Pa. 2014) (citation

omitted). Appellant properly preserved her weight of the evidence claim by

raising the issue in her post-sentence motion.

      “[A] new trial based on a weight of the evidence claim is only

warranted where the jury’s verdict is so contrary to the evidence that it

shocks one’s sense of justice.” Commonwealth v. Tejada, 107 A.3d 788,

795–796 (Pa. Super. 2015) (internal alteration and citation omitted). “[W]e

do not reach the underlying question of whether the verdict was, in fact,

against the weight of the evidence. . . . Instead, this Court determines

whether the trial court abused its discretion in reaching whatever decision it

made on the motion[.]” Commonwealth v. Ferguson, 107 A.3d 206, 213

(Pa. Super. 2015) (citation omitted).

      When ruling on Appellant’s weight of the evidence claim, the trial court

concluded:

      [Appellant’s] weight claim fails. The jury is free to believe all,
      parts, or none of the evidence, and to make credibility
      determinations. Conflicts between testimonies are for the jury
      to resolve, and review of the jury’s credibility determinations is


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      not for the trial court to undertake. Upon careful consideration
      of the record, the [trial c]ourt does not find any of the evidence
      presented by [Appellant] in support of her weight claim so
      clearly of greater weight than the evidence presented supporting
      her convictions that failure to give it credence amount to a denial
      of justice. The verdicts are not so contrary to the evidence as to
      shock one’s sense of justice.

Trial Court Opinion, 7/1/14, at 47. After careful review of the entire certified

record, we discern no abuse of discretion in the trial court’s analysis.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/2/2015




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