J-S04040-17

                                   2017 PA Super 82

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    PADGE VICTORIA WINDSLOWE                   :
    A/K/A PAGE V. GORDON                       :
                                               :   No. 2126 EDA 2015
                      Appellant                :

              Appeal from the Judgment of Sentence June 11, 2015
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0005870-2012,
                             CP-51-CR-0012090-2012


BEFORE: SHOGAN, OTT and STEVENS, P.J.E.*

OPINION BY STEVENS, P.J.E.:                              FILED MARCH 28, 2017

        Appellant Padge Victoria Windslowe (a/k/a Page V. Gordon) appeals

the judgment of sentence entered after a jury convicted Appellant of third-

degree murder, aggravated assault, and possessing instruments of crime.1

Appellant challenges the sufficiency and weight of the evidence, claims the

trial court abused its discretion in admitting certain evidence, and contends

the trial court should have declared a mistrial. We affirm.

        Appellant was charged with the murder of Claudia Aderotimi and the

aggravated assault of Sherkeeia King, two women who were hospitalized

after hiring Appellant to perform an illicit cosmetic procedure in which

Appellant injected silicone into their buttocks.          To entice the victims,
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. §§ 2502(c), 2702, 907(b), respectively.
J-S04040-17



Appellant falsely advertised herself as a medical professional trained to

perform a buttocks enhancement procedure accepted by the medical

community as safe and effective. While King sustained permanent damage

to her lungs, heart, and buttocks, Aderotimi did not survive.

      After Appellant’s jury trial commenced on February 19, 2016, the

prosecution presented several days of testimony to develop its case.     We

summarize the relevant details of this extensive factual background.

                         Death of Claudia Aderotimi

      The Commonwealth’s case centered on the            untimely death of

Aderotimi, a twenty-year old British woman, who was rushed for emergency

care on the eve of February 7, 2011. Aderotimi passed away just hours later

at 1:32 a.m. on February 8, 2011, at Mercy Philadelphia Hospital.         Dr.

Fredrick Hellman, Delaware County Chief Medical Examiner, performed

Aderotimi’s autopsy and observed numerous injection sites in her buttocks

that were leaking clear, thick fluid.   He discovered silicone in Aderotimi’s

blood, stomach, urine, liver, lung tissue, and brain tissue. As a result, Dr.

Hellman concluded Aderotimi’s cause of death was a pulmonary embolism

caused by silicone injections into the buttocks and opined that her manner of

death was homicide.

      The prosecution’s expert in plastic surgery, Dr. Robert Noone, agreed

with the medical examiner’s conclusion that Aderotimi died from a massive

pulmonary embolism, which occurred when the silicone injections entered

Aderotimi’s blood stream, traveled to the lungs, and stopped Aderotimi’s

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heart. Stressing that the injection of silicone is not an acceptable medical

procedure to enlarge a patient’s buttocks, Dr. Noone clarified that there are

only three approved methods of buttocks sculpting; reshaping the buttocks

with the patient’s own tissue; aspirating the patient’s abdomen fat, purifying

the fat, and injecting the fat into the buttocks; or inserting a prefabricated

buttocks implant that is similar to a breast implant.      However, Dr. Noone

stressed that these procedures must be performed under anesthesia by

accredited physicians in accredited medical facilities.2

       Scheffee Wilson and Theresa Gyamfi testified that they witnessed

Appellant give Aderotimi silicone injections into her buttocks on February 7,

2011, just hours before Aderotimi’s death. By way of background, Wilson

explained that she had met Appellant years earlier in June 2008 when she

sought a “butt enhancement” for herself online by placing her contact

information on a blog called “Topix”; Appellant responded under the names

“Lillian” and “Body by Lillian,” and offered to perform silicone injections.

N.T., 2/19/15, at 204-206. Appellant sent Ms. Wilson a detailed email with

exclusive sale prices, which she asked that Ms. Wilson not share with

____________________________________________


2
  Dr. Noone noted a limited exception as Adato Sil-Ol, a silicone product, is
used by ophthalmologists to treat retinal displacement. However, Dr. Noone
emphasized that only a small volume of about ten cubic centimeters (10 cc)
of Adato Sil-Ol is injected into the eye and is aspirated out of the body once
the retina heals. In comparison, Appellant would inject a range of 1000 to
2000 cc silicone into a customer’s buttocks in one session and would again
inject similar volumes in subsequent sessions.



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J-S04040-17



anyone.     She offered several packages of different products with varying

effectiveness in which she promised to inject Ms. Wilson with volumes of

1500 to 2000 cc of silicone product, listing prices ranging from $1,500.00 to

$3,700.00. In the email, Appellant represented that she was a physician’s

assistant with ten years’ experience and guaranteed her results.

      After receiving several rounds of injections, Wilson became Appellant’s

“business partner,” finding Appellant customers in exchange for a referral

fee. N.T., 2/19/15, at 224-30.        Wilson could not contact Appellant directly;

she would email her and Appellant would call back from a blocked number.

Appellant    utilized    several   email   addresses:   BodyByLillian@yahoo.com,

buttocksculpture@yahoo.com, and miamiplasticsurgery@yahoo.com. Wilson

indicated that Appellant implied she worked for a plastic surgeon when she

talked about her experience and training. When Appellant was late to inject

someone, she would say that “something happened at the clinic [or] the

doctor’s office.” N.T., 2/19/15, at 217.

      Wilson arranged for Appellant to meet Aderotimi and Gyamfi, two

British women interested in a buttocks enhancement procedure.              Wilson

directed Aderotimi and Gyamfi to book a hotel room in Philadelphia in

November 2010.          Appellant met the women in their hotel room, injected

each of them with 1800 cc of silicone, closed the injection sites with Krazy

Glue and cotton balls, and instructed them to lie on their stomachs for a few

hours. The women each paid Appellant $1,800.00 cash.




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       Aderotimi and Gyamfi returned to Philadelphia for “touch up” injections

and contacted Wilson to meet Appellant at the same hotel on February 7,

2011, the eve of Aderotimi’s death. N.T., 2/26/15, at 74-81. Wilson also

arranged to get a separate hotel room as she had developed a lump in her

buttocks from the silicone injections; Appellant had been trying to fix the

lump by injecting more silicone and attempting to withdraw some of the

silicone she had previously injected.

       All four women gathered in the Aderotimi and Gyamfi’s hotel room to

begin the process. At the moment Appellant administered Aderotimi’s final

injection of silicone, Wilson and Gyamfi watched as Aderotimi’s body

“jolted.”   N.T., 2/19/15, at 243-45.         Aderotimi seemed to recover and

Appellant proceeded to inject Gyamfi and Wilson.           Aderotimi began to

complain of chest pains and asserted that it hurt to breathe ever since she

received the last injection.   When Aderotimi’s pain brought her to tears,

Appellant placed her hand on Aderotimi’s chest and asked if this pressure

hurt. Aderotimi explained again that she had pain every time she breathed

in.   After Appellant instructed Aderotimi to call an ambulance if the pain

worsened, she “made haste” and left the hotel. N.T., 2/19/15, at 247-48.

       As Aderotimi’s pain increased and she began gasping for air, Wilson

called 9-1-1. Gyamfi told the emergency personnel that Aderotimi had just

received silicone buttocks injections.         Although the paramedics gave

Aderotimi oxygen and transported her to the hospital, Aderotimi died several

hours later. Wilson called Gyamfi to check on Aderotimi and learned of her

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J-S04040-17



death. Wilson attempted to contact Appellant, who returned her call from a

blocked number.     When Wilson told Appellant that Aderotimi had died,

Appellant hung up the phone. Wilson never heard from Appellant again.

      Wilson cooperated with the detectives investigating Aderotimi’s death

and gave her account of her involvement with “Lillian.” Although Wilson did

not know Appellant’s real identity, she knew Appellant recorded a rap music

video under the moniker “Black Madam,” which was available on YouTube.

Officers met with the video producers who identified Appellant as Padge-

Victoria Windslowe and indicated that Appellant had two Pennsylvania

addresses: one in Narberth and one in Ardmore.

      The investigating officers ran Appellant’s Pennsylvania driver’s license

and confirmed that her 2002 Jaguar was registered at the same address in

Narberth.   The officers obtained a search warrant for both addresses, but

Appellant was not present at either location and their eventual searches did

not provide additional information on Appellant’s whereabouts.

                    Subsequent Injury of Sherkeeia King

      While Appellant initially avoided being arrested for Aderotimi’s murder,

she was eventually apprehended in connection with the police investigation

into subsequent allegations of Appellant’s assault of Sherkeeia King.       In

January 2011, King had initially met Appellant at a party hosted at the home

of Sharnell Saunders, where several women arranged to get buttocks

enhancement injections. Appellant identified herself as “Lillian,” a registered

nurse in the cosmetology field trained to administer medical-grade silicone

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J-S04040-17



injections from Thailand. N.T., 2/23/15, at 114-16. Appellant injected the

women with silicone, closed the injection sites with Krazy Glue and cotton

balls, and instructed the women to drink plenty of water and to avoid sitting

for an extended period of time. King paid Appellant $1,000.00 for a “Dixie

cup” of silicone. N.T., 2/23/15, at 117-22.

      After receiving these injections, King and Saunders learned of

Aderotimi’s death, which had been linked to illegal silicone buttocks

injections. Saunders then attempted to contact Appellant to see if Appellant

had administered Aderotimi’s injections. Appellant did not return Saunders’s

calls and Appellant’s phone number was eventually disconnected. About a

year after Aderotimi’s death, Saunders heard that Appellant had resurfaced

and was back in business. Saunders obtained Appellant’s new number and

sought to schedule another injection round.

      Appellant called back from a blocked number, indicating she was

willing to do injections for a former customer, and asserted she would

explain the circumstances of Aderotimi’s death in person.          Appellant

arranged to give silicone injections to both Saunders and King at Saunders’s

Philadelphia home on separate occasions. When questioned by both women

about Aderotimi’s death, Appellant alleged that Aderotimi was high on

cocaine, died of an overdose, and did not follow Appellant’s aftercare

instructions. Both Saunders and King believed Appellant’s explanation and

paid her to perform additional silicone buttocks injections.




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J-S04040-17



        King received her injections on February 19, 2012, at Saunders’s

home.     As Appellant injected King with silicone, King felt “funny” and her leg

began to shake.     N.T., 2/23/15, at 128.    Appellant told King her buttocks

was stretching as she was getting more silicone in this round.             After

returning home, King’s temperature reached 109 °F and she began coughing

up blood. King was admitted to the Lankenau Hospital intensive care unit

where she remained on a breathing machine for approximately twenty days.

Dr. Arka Banerjee, King’s supervising physician, testified that CAT scans

showed King sustained heart and lung damage consistent with a silicone

pulmonary embolism, which cannot be treated with surgery or medication.

King was discharged from the hospital with level three heart disease and

was required to use an oxygen tank for three additional weeks.         King still

has trouble breathing and cannot sit for an extended period of time.

        Saunders assisted homicide detectives in apprehending Appellant by

setting up another appointment with Appellant at her home on February 29,

2012.     In advance of this operation, the officers obtained a warrant for

Appellant’s arrest and a search warrant for Saunders’s home.               When

Appellant arrived at Saunders’ home on that day, she was placed under

arrest.   Officers recovered Appellant’s pink bag, which contained various

items used for illegal silicone injections: rubber gloves, Krazy Glue, markers,

syringes, needles, cotton balls, trash bags, plastic cups, and bottles

containing unknown clear substances.




                                      -8-
J-S04040-17



         The detectives obtained a search warrant for the Nissan Sentra that

Appellant drove to Saunders’s home.       Inside the car, the detectives found

credit cards and mail in Appellant’s name and in several of her aliases. The

mail was directed to a home in Chesterbrook, Pennsylvania. Based on this

information, the officers were able to obtain and serve a search warrant on

Appellant’s Chesterbrook home.       Officers recovered a packing slip dated

March 29, 2010, and a specification sheet from Neely Industries, Inc. for the

product Xiameter, which is an industrial grade silicone used to manufacture

auto wax, shampoo, lubricant, or damping fluid.            In addition, officers

confiscated additional injection supplies, four cell phones, and newspaper

clippings reporting on Aderotimi’s death.

         Dr. Adam Lanzarotta of the FDA Forensic Chemistry Center analyzed

the clear liquids found at Appellant’s Chesterbrook home and in her

possession upon her arrest. All of the bottles tested positive for silicone and

two of the bottles were labeled “not for injection via intravenously” and “Rx

only.”    N.T., 2/24/15, at 102-108.    Special Agent Michael Widenhouse, a

criminal investigator for the FDA, testified that Xiameter is industrial silicone

manufactured by Dow Corning and available through wholesalers like Neely

Industries. Widenhouse explained that the FDA does not regulate Xiameter

because it is not intended for human consumption.

                          Prior Injury to Melissa Lisath

         At trial, the Commonwealth was permitted to introduce evidence that,

prior to her injection of Aderotimi and King, Appellant also caused harm to

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J-S04040-17



Melissa Lisath with her silicone injections in 2008. Although Appellant was

never charged with the assault of Lisath, the trial court agreed with the

Commonwealth’s assertion that these circumstances were admissible under

Pennsylvania Rule of Evidence 404(b) to show Appellant had knowledge that

silicone injections were unsafe.

      Years before meeting Aderotimi and King, Appellant had arranged

online to perform similar injection procedures on Stephanie Matos and her

friend, Melissa Lisath, in August 2008 at a Philadelphia hotel.      Appellant

informed the women that her name was “Lillian” and that she was a “nurse

practitioner who worked for a plastic surgeon.”       N.T., 2/20/15, at 5-8.

Appellant injected the women with silicone, covered the injection sites with

Krazy Glue and cotton balls, and told them not to sit for twenty-four hours.

      Lisath asked Appellant to perform a second round of injections in

September 2008; Lisath paid Appellant $700.00 for 1000 cc of silicone to be

injected in her buttocks and thighs. Lisath testified she felt lightheaded and

short of breath once she received the injections.     After returning home to

New York, Lisath woke up in the emergency room, was hospitalized for three

months with a breathing tube, and was in a coma for a portion of that time.

Lisath’s injuries prevented her from being able to work for several years and

she testified that the silicone has created lumps in her buttocks.

      After Lisath’s hospitalization, Matos tried unsuccessfully to contact

Appellant, who would not answer Matos’s emails or phone calls.          Matos

testified that before Lisath’s injury, Appellant would return her phone calls

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J-S04040-17



and email messages right away. However, after Lisath was injured, Matos

felt like Appellant had “disappeared.”   N.T., 2/18/15, at 25.    Matos then

returned to the blog where she found Appellant’s information, warned its

readers of the danger of Appellant’s silicone injections, and shared the

details of Lisath’s injury from the injection. After Matos made these posts,

she noticed that “Body by Lillian” could no longer be found on the blogs.

                           Appellant’s Testimony

     Testifying in her own defense, Appellant indicated she was born Forest

Leon Gordon, changed her name to Padge-Victoria Windslowe in 1992, and

had gender reassignment surgery in 1994.           Appellant claimed she was

properly trained to administer silicone injections in 1994 or 1995 from a

nurse named Natasha Rodriguez in her apartment in Washington Heights,

New York; Appellant alleged that Dr. Chim Choke of Thailand taught her how

to mix lidocaine with adrenaline to use for numbing purposes.      When the

prosecutor asked if Appellant told her customers that she received “back-

street” training, Appellant claimed “in the transgender world, we don’t

always do things the conventional way [as there] is no path for us to do it.”

N.T., 2/27/15, at 90. Appellant denied that she ever told her customers she

was a nurse or a medically trained professional.

     Appellant offered clients three different silicone products: (1) Adato

Sil-Ol, which she acquired from “Dr. Voo” in Thailand; (2) Silikon 1000,

which she acquired from Natasha Rodriguez; and (3) a product Appellant

called “hydrogel,” which Appellant would make herself by mixing Xiameter

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J-S04040-17



and saline solution (in a “1/3 to 3/4 ratio”)3 in her kitchen blender. Appellant

used a bottle crimper to make her silicone concoction look like a legitimate

medical product. Under the alias “Hillmont GI,” Appellant purchased over 58

gallons of Xiameter from Neely Industries, Inc.; Appellant believed she

needed to be associated with a medical group to buy this product.

       Despite    ordering    large    amounts     of   Xiameter,   Appellant   denied

receiving Xiameter packing slips found in her home that stated that Xiameter

was a food grade product “neither tested nor represented as suitable for

medical or pharmaceutical uses, not intended for human injection, not

intended for food use.”4           N.T., 2/27/15, at 64, 76-77. Appellant later

admitted to receiving the slips but “knew what was coming… [and] knew it

was safe.” N.T., 2/27/15, at 148-51. She argued that Natasha Rodriguez

and “Kevin” from Neely Industries assured her Xiameter was non-toxic and

acceptable for humans to eat and drink.                 N.T., 2/27/15, at 147.      In

response, the Commonwealth offered the rebuttal testimony of Kevin

Trawick and David Laakso, employees of Neely Industries, who denied telling

any customer it was safe for humans to ingest Xiameter.



____________________________________________


3
  It is mathematically impossible to make a mixture using this ratio; the
addition of these two fractions equals 13/12 or 108%.
4
  Derek Crump, the vice-president and general manager of Neely Industries,
testified that Xiameter is designated “food-grade” silicone, as it is often used
as a lubricant on conveyor belts and may have incidental contact with food
product in the food industry.



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J-S04040-17



      Appellant testified that she was aware that silicone should not be

injected into a vein, but felt it was acceptable to inject silicone into fatty

tissue.   She admitted to employing the procedure described by the

prosecution’s witnesses: measuring each buttocks with a ruler, marking

injection sites with a Sharpie marker, injecting Lidocaine and adrenaline to

numb the area, injecting silicone, and closing the injection sites with Krazy

Glue and cotton balls. She claimed that everything was sterile because she

used latex gloves, kept her silicone products in water bottles, and dumped

her injection materials into a medical dumpster. Appellant asserted that she

received the silicone injections herself.

      Appellant conceded that she injected Aderotimi in November 2010 and

on the eve of Aderotimi’s death on February 7, 2011.       Appellant felt that

Aderotimi’s complaint of a “tickle” in her throat and complications from her

final injection were caused by Aderotimi’s consumption of Four Loko, a malt

liquor beverage with caffeine. Appellant denied that Aderotimi complained

of chest pains or trouble breathing. Appellant claimed that after leaving the

hotel, she called Wilson “every hour on the hour” to check on Aderotimi and

learned of her death on the following day. N.T., 2/26/15, at 181.

      Appellant felt horrible about the circumstances of Aderotimi’s passing;

she claimed to be so overwhelmed that she had to move to Delaware to live

with her sister. Appellant stayed in Maryland for six to eight weeks and then

moved to her parents’ home in Philadelphia to await the coroner’s report on

Aderotimi’s death as she believed she could “get house arrest by having a

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J-S04040-17



Philadelphia address.”    N.T., 2/26/15, at 187.      Appellant then moved to

Upper Darby, then to New Jersey, then to Plymouth Meeting, Pennsylvania,

and then to Chesterbrook, Pennsylvania. Appellant admitted that she used a

counterfeit New York driver’s license in the name of “Victoria Gordon” to

lease the apartment in Chesterbrook.          When the landlord’s credit check

revealed Appellant’s name was “Padge,” Appellant told him “Padge” had

stolen her identity.     Appellant took out credit cards in several aliases

including Forrest L. Gordon, Forrest Leona G’Ordoni, Forrestleona G’Ordoni,

Padgevic Winslowe, and Padge-Victoria Windslowe.         Appellant denied that

she was trying to conceal her whereabouts.

       When Appellant injected Sherkeeia King approximately a year after

Aderotimi’s death, Appellant did not fear causing her any injury as she used

less silicone than she was accustomed to giving customers.             Appellant

denied responsibility for King’s injuries as well, claiming King told her after

receiving the injections that she was on Percocet. Appellant also admitted

that she continued to sell the hydrogel mixture she made in her kitchen

blender to other individuals performing illegal buttocks injections.

       In addition, Appellant admitted that she gave silicone buttocks

injections to Melissa Lisath in 2008, but denied receiving any communication

indicating that Lisath had fell ill subsequent to the injections.           She

discovered Lisath’s illness “in some papers” and at trial. N.T., 2/26/15, at

159.   While she recalled that she probably received email messages and

phone calls from Matos around the time of Lisath’s injury, she did not

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J-S04040-17



answer these messages because she did not want to work with Matos any

longer.      While Appellant denied reading any bad reviews online from her

customers, she bragged that customers on blogs had deemed her the

“Michaelangelo of body enhancements.” N.T., 2/18/15, at 59.

       At the conclusion of the trial, the jury convicted Appellant of third-

degree murder, aggravated assault, and possessing of instruments of crime.

On June 11, 2015, the trial court sentenced Appellant to an aggregate term

of ten to twenty years imprisonment to be followed by six years probation.

Appellant filed a motion for a new trial, which the trial court subsequently

denied. Appellant filed this timely appeal and complied with the trial court’s

direction to file a concise statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(b).

       Appellant raises the following issues for our review:

       I.      Is [Appellant] entitled to an arrest of judgment on the
               charge of Murder in the Third Degree where the evidence
               was insufficient to sustain the verdict as the
               Commonwealth did not establish malice and hence failed
               to prove [Appellant] committed Murder?

       II.     Is [Appellant] entitled to a new trial on the charge of
               Murder in the First Degree5 as the weight of the evidence

____________________________________________


5
  It appears that Appellant meant to challenge the weight of the evidence
supporting her third-degree murder conviction.         We will overlook this
typographical error as Appellant clearly challenges her third-degree murder
conviction in the analysis section of her brief. Appellant does not challenge
the sufficiency of the evidence supporting her conviction for the aggravated
assault of Sherkeeia King.



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J-S04040-17


             does not support the verdict and where the verdict was
             based upon speculation, conjecture, and surmise?

      III.   Is [Appellant] entitled to a new trial where the Court erred
             in granting the Commonwealth’s 404(b) Motion where the
             evidence was irrelevant and if determined to be relevant[,]
             the relevance was outweighed by unfair prejudice?

      IV.    Is [Appellant] entitled to a new trial where the Court failed
             to declare a mistrial when [Appellant], had a heart attack,
             mid-trial and where she was still on cross-examination?

Appellant’s Brief, at 3.

      First, Appellant challenges the sufficiency of the evidence supporting

her third-degree murder conviction. Our standard of review is as follows:

            As a general matter, our standard of review of sufficiency
      claims requires that we evaluate the record in the light most
      favorable to the verdict winner giving the prosecution the benefit
      of all reasonable inferences to be drawn from the evidence.
      Evidence will be deemed sufficient to support the verdict when it
      establishes each material element of the crime charged and the
      commission thereof by the accused, beyond a reasonable doubt.
      Nevertheless, the Commonwealth need not establish guilt to a
      mathematical certainty. Any doubt about the defendant's guilt is
      to be resolved by the fact finder unless the evidence is so weak
      and inconclusive that, as a matter of law, no probability of fact
      can be drawn from the combined circumstances.

            The Commonwealth may sustain its burden by means of
      wholly circumstantial evidence. Accordingly, [t]he fact that the
      evidence establishing a defendant's participation in a crime is
      circumstantial does not preclude a conviction where the evidence
      coupled with the reasonable inferences drawn therefrom
      overcomes the presumption of innocence. Significantly, we may
      not substitute our judgment for that of the fact finder; thus, so
      long as the evidence adduced, accepted in the light most
      favorable to the Commonwealth, demonstrates the respective
      elements of a defendant's crimes beyond a reasonable doubt,
      the appellant's convictions will be upheld.




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Commonwealth v. Tukhi, 149 A.3d 881, 886–87 (Pa.Super. 2016)

(citation omitted).

      Pursuant to Section 2502 of the Crimes Code, third-degree murder

encompasses all forms of murder which do not constitute first-degree

murder (intentional killing) or second-degree murder (killing committed

during the perpetration of a felony). 18 Pa.C.S. § 2502. In order to sustain

a conviction for third-degree murder, the Commonwealth need not establish

that the defendant had specific intent to kill or harm the victim, but need

only prove that the defendant killed another individual with malice

aforethought. Commonwealth v. Fisher, 622 Pa. 366, 375, 80 A.3d 1186,

1191 (2013).

      Malice is defined as: wickedness of disposition, hardness of
      heart, cruelty, recklessness of consequences, and a mind
      regardless of social duty, although a particular person may not
      be intended to be injured. Malice may be found where the
      defendant consciously disregarded an unjustified and extremely
      high risk that his actions might cause serious bodily injury.
      Malice may be inferred by considering the totality of the
      circumstances.

Commonwealth v. Thompson, 106 A.3d 742, 757 (Pa.Super. 2014)

(citation omitted).

      Appellant claims her conviction for third-degree murder cannot stand

as she asserts that the Commonwealth failed to prove she acted with malice

in administering the silicone buttocks injections that led to Aderotimi’s

death. Appellant boasts of her “marvelous reputation in her community for

being able to perform the buttocks enhancements with the greatest of care


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and the greatest results” and asserts that in “almost every case, [she did] a

fine job.” Appellant’s Brief, at 19. Appellant argues that she had no way of

knowing the risk involved with the procedure she performed. Her counsel

concedes that while Appellant’s behavior may have been “stupid,” it did not

rise to gross recklessness. Appellant’s Brief, at 19. We disagree.

      The Commonwealth presented ample evidence to allow the jury to find

that Appellant consciously disregarded an unjustified and extremely high risk

that her actions might cause serious bodily injury. Without any legitimate

medical training, Appellant performed black market cosmetic procedures by

injecting women directly with silicone.      Despite the fact that medical

professionals do not offer direct silicone injection as an acceptable body

shaping procedure, Appellant deemed the injections to be safe after

purportedly learning how to inject silicone from a nurse in her apartment

and how to mix numbing agents from an alleged doctor in Thailand.

Appellant asserted that she did not need formal training or a professional

degree to perform body enhancement procedures, implying that transsexual

individuals should not be required to follow conventional ways of learning.

      Unbeknownst to her clients, Appellant’s injections largely consisted of

Xiameter 200, an industrial-grade silicone which is used in auto wax and

damping fluid as a lubricant; Appellant received large quantities of this

product shipped in non-sterile metal tins. Appellant then concocted her own

product she deemed “hydrogel” by mixing the Xiameter with saline in her

kitchen blender; Appellant repackaged the hydrogel with a bottle crimper to

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J-S04040-17



disguise the substance’s true origin from her customers. Appellant chose to

ignore the clear warnings provided with the Xiameter that indicated that this

product was unsafe for human consumption.               When questioned about the

warnings, Appellant lied that Neely Industries employees told her it was safe

for   humans   to   eat   the    silicone;   Neely    Industries   customer    service

representatives adamantly denied this claim.

      Appellant then persuaded her clients to rely on her “expertise” by

falsely representing herself as a medical professional with the proper

education   and     training    to   perform     a   medically-acceptable     cosmetic

procedure. Not only did Appellant lie about her credentials and the safety of

this procedure, but she imitated medical protocol to appear legitimate; she

wore gloves and scrubs, cleaned the injection site with alcohol before

administering her non-sterile industrial silicone concoction, and instructed

the clients with fake post-procedure protocols.           Her instructions to drink

water and avoid sitting for an extended period of time do not decrease the

risk of the foreign substance hitting the client’s bloodstream and entering

the client’s major organs, as silicone cannot be metabolized.

      Appellant demonstrated a consciousness of guilt in developing an

intricate scheme to obscure her identity. She never gave her clients her real

name or any details of her personal life, but identified herself as “Lillian.”

She avoided giving her actual contact information, would not have direct

communication with her clients, used several cell phones with blocked

numbers and email addresses such as miamiplasticsurgery@yahoo.com.

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After her injection sessions, Appellant carefully packed up all her injections

supplies and took them with her. Appellant actively concealed her identity

and whereabouts by changing her address six times in the year following

Aderotimi’s death, using fake names and identification to obtain credit cards

and lease her Chesterbrook apartment, and cutting off all communication

with clients that could link her to the illegal injections.

      Appellant’s complete disregard for the harm she caused her clients

showed her hardness of heart. Once Aderotimi started to complain of chest

pain and shortness of breath immediately after the injections, Appellant

feigned medical skill by simulating the actions of a doctor in examining a

patient by putting her hand on Aderotimi’s chest.             Appellant showed no

concern for Aderotimi’s well-being and felt no duty to call for emergency

care or remain with her struggling client; instead, she recommended

Aderotimi wait to see if her condition worsened before seeking medical care.

This gave Appellant the opportunity to rush to pack up her injection supplies

and leave the hotel as quickly as she could. When Appellant was informed

of Aderotimi’s death, Appellant immediately hung up the phone and closed

all lines of communication with the witnesses to Aderotimi’s death.

      Appellant’s recklessness is also demonstrated by her decision to

continue to perform silicone injections despite her knowledge that she likely

caused Aderotimi’s death and Lisath’s injuries. When questioned about the

circumstances of Aderotimi’s death, Appellant lied to her customers and

blamed the fatal result on Aderotimi’s alleged cocaine overdose on the day

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prior to her injection. Appellant disregarded the risk of her procedure and

convinced King that it was safe to undergo additional injections, causing

King a silicone embolism that damaged her heart, lungs, and buttocks.

      While Appellant claims she had no knowledge that her silicone

injections could cause death or serious bodily injury, the Commonwealth

presented evidence to allow the jury to make an inference to the contrary.

In addition to the fact that she recklessly injected clients with industrial

grade silicone and ignored the product’s clear warnings that it was not to be

ingested by humans, Appellant’s behavior suggested that she was aware

that her silicone injections had caused serious bodily injury to Melissa Lisath

years earlier in 2008. Before Lisath’s injury, Appellant typically had regular

communication with Stephanie Matos, the woman who referred Lisath for

injections; as soon as Lisath was hospitalized and entered a coma, Appellant

suddenly ceased all communication with Matos and took her business, “Body

by Lillian” off the blogs where Matos has discovered her. Matos testified that

it was if Appellant had “disappeared.” N.T., 2/18/15, at 25.

      We are not persuaded by Appellant’s reliance on the decision in

Commonwealth v. Ludwig, 583 Pa. 6, 874 A.2d 623 (2005) in which our

Supreme Court affirmed the trial court’s grant of the defendant’s habeas

corpus petition as it found the Commonwealth failed to establish a prima

facia case of malice to support a conviction under 18 Pa.C.S. § 2506 (“Drug

delivery resulting in death”). In Ludwig, the nineteen-year-old defendant

sold Ecstasy pills to two juvenile girls and their eighteen-year-old friend at

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the girls’ request. The Supreme Court reasoned that the prosecution failed

to show that the defendant’s action in selling illegal drugs on its own did not

demonstrate the requisite “wickedness of disposition, hardness of heart,

cruelty, recklessness of consequences and a mind regardless of social duty

such as to demonstrate an extreme indifference to human life” needed to

prove the mental state of malice. Ludwig, 583 Pa. at 25, 874 A.2d at 634.

      This case can be easily distinguished from Ludwig.             Appellant

deceived her customers into believing she was a medical professional trained

to perform an acceptable and safe buttocks enhancement procedure at a

discounted price. She misled women by claiming her homemade concoction

of non-sterile industrial silicone was a medical-grade substance suitable for

human injection and blatantly ignored written warnings that silicone should

not be ingested by humans.       Appellant’s cruelty is demonstrated in her

abandonment of Aderotimi as she experienced severe chest pain and trouble

breathing after receiving injections; Appellant recklessly told Aderotimi to

wait to seek medical care while she fled the hotel.      In continuing to brag

that she was able to produce great results, Appellant disregards her

causation of severe injury to King and Lisath and the death of Aderotimi; she

minimalizes the fact that she injected numerous women with large amounts

of silicone, a harmful substance which cannot be removed from the body.

Appellant demonstrated an extreme indifference to human life by continuing

to induce women to obtain silicone injections despite her knowledge that she

likely caused Lisath’s injuries and Aderotimi’s death.

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      Viewing the totality of the circumstances, we find the Commonwealth

presented ample evidence that Appellant acted with malice as she

demonstrated a “wickedness of disposition, hardness of heart, cruelty,

recklessness of consequences and a mind regardless of social duty such as

to demonstrate an extreme indifference to human life.”          Ludwig, supra.

On repeated occasions, Appellant consciously disregarded an unjustified and

extremely high risk that her actions might cause serious bodily injury.

Accordingly, we conclude that the jury’s decision to convict Appellant of

third-degree murder is supported by sufficient evidence.

      Second, Appellant challenges the weight of the evidence supporting

her third-degree murder conviction.      When reviewing a challenge to the

weight of the evidence, our standard of review is as follows:

      The essence of appellate review for a weight claim appears to lie
      in ensuring that the trial court’s decision has record support.
      Where the record adequately supports the trial court, the trial
      court has acted within the limits of its discretion.

      A motion for a new trial based on a claim that the verdict is
      against the weight of the evidence is addressed to the discretion
      of the trial court. A new trial should not be granted because of a
      mere conflict in the testimony or because the judge on the same
      facts would have arrived at a different conclusion. Rather, the
      role of the trial judge is to determine that notwithstanding all the
      facts, certain facts are so clearly of greater weight that to ignore
      them or to give them equal weight with all the facts is to deny
      justice.

      An appellate court’s standard of review when presented with a
      weight of the evidence claim is distinct from the standard of
      review applied by the trial court. Appellate review of a weight
      claim is a review of the exercise of discretion, not of the



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      underlying question of whether the verdict is against the weight
      of the evidence.

Commonwealth v. Mucci, 43 A.3d 399, 410–11 (Pa.Super. 2016),

(quoting Commonwealth v. Clay, 619 Pa. 423, 64 A.3d 1049, 1054–55

(2013)). To successfully challenge the weight of the evidence, a defendant

must prove the evidence is “so tenuous, vague and uncertain that the

verdict shocks the conscience of the court.” Mucci, 43 A.3d at 411 (quoting

Commonwealth v. Sullivan, 820 A.2d 795, 806 (Pa.Super. 2003)).

      Appellant repeats arguments she set forth in her challenge to the

sufficiency claim, claiming the Commonwealth did not prove Appellant knew

that her injections could cause serious bodily injury or death. We need not

reiterate our discussion of the sufficiency of the evidence as set forth above.

To the extent that Appellant argues that she “believed in her heart that she

was trying to help young women look better,” she is merely asking us to

credit her account of the facts and reweigh the evidence in her favor. We

will not substitute our judgment for that of the factfinder, as the jury

“is free to believe all, none or some of the evidence and to determine the

credibility of the witnesses.”   Commonwealth v. Talbert, 129 A.3d 536,

545 (Pa.Super. 2015). We conclude that the trial court properly exercised

its discretion in denying Appellant’s motion for a new trial based on the

weight of the evidence.

      Third, Appellant claims the trial court erred in allowing the admission

of prior bad act evidence showing Appellant’s injections had also caused



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Melissa Lisath to become seriously ill. In reviewing a trial court’s discretion

in evidentiary issues, our standard of review is as follows:

      [q]uestions regarding the admission of evidence are left to the
      sound discretion of the trial court, and we, as an appellate court,
      will not disturb the trial court's rulings regarding the admissibility
      of evidence absent an abuse of that discretion. An abuse of
      discretion is not merely an error of judgment; rather, discretion
      is abused when the law is overridden or misapplied, or the
      judgment exercised is manifestly unreasonable, or the result of
      partiality, prejudice, bias, or ill-will, as shown by the evidence or
      the record....

Commonwealth v. Richard, 150 A.3d 504, 512 (Pa.Super. 2016) (citation

omitted).

      Our Supreme Court has set forth the circumstances in which a

defendant’s prior bad acts are admissible at trial:

      Generally, evidence of prior bad acts or unrelated criminal
      activity is inadmissible to show that a defendant acted in
      conformity with those past acts or to show criminal propensity.
      Pa.R.E. 404(b)(1). However, evidence of prior bad acts may be
      admissible when offered to prove some other relevant fact, such
      as motive, opportunity, intent, preparation, plan, knowledge,
      identity, and absence of mistake or accident. Pa.R.E. 404(b)(2).
      In determining whether evidence of other prior bad acts is
      admissible, the trial court is obliged to balance the probative
      value of such evidence against its prejudicial impact.
      Commonwealth v. Powell, 598 Pa. 224, 956 A.2d 406, 419
      (2008).

Commonwealth v. Sherwood, 603 Pa. 92, 982 A.2d 483, 497 (2009).

      Appellant claims the trial court’s admission of this evidence was

“manifestly unreasonable primarily because there simply was a lack of

connection   between    Miss   Lisath’s   injuries   and   the   mental   state   of

[Appellant]” at the time of Aderotimi’s death. Appellant’s Brief, at 27. We

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agree with the trial court’s finding that evidence that Lisath was hospitalized

with serious injuries after receiving Appellant’s injections in 2008 was

relevant to refute Appellant’s claim that she had no knowledge that her

silicone injections could cause serious bodily harm before she administered

the injections that caused Aderotimi’s death in 2011.

      While the admission of evidence of Appellant’s prior injury to Lisath

was prejudicial to the defense, we must ask whether the admission of these

circumstances was unfairly prejudicial. See Pa.R.E. 404(b)(2) (stating that

prior bad act evidence is “admissible only if the probative value of the

evidence outweighs its potential for unfair prejudice”); Commonwealth v.

Dillon, 592 Pa. 351, 367, 925 A.2d 131, 141 (2007) (stating that

“[e]vidence will not be prohibited merely because it is harmful to the

defendant”).

      The probative value of the admission of evidence of Appellant’s prior

injury to Lisath outweighed the potential for unfair prejudice. This evidence

had great probative value to assist the Commonwealth in establishing

Appellant’s state of mind, or more specifically, that Appellant caused

Aderotimi’s death with malice aforethought.       Moreover, the trial court’s

cautionary instruction ameliorated any prejudicial effect of the evidence.

The trial court advised the jury of the limited purpose for which the evidence

was introduced and prohibited them from using this evidence to conclude

Appellant acted in conformity with these acts or to show criminal propensity.

We presume that a jury follows a trial court’s instructions. Commonwealth

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v. Hairston, 624 Pa. 143, 160, 84 A.3d 657, 666 (2014) (finding the trial

court’s cautionary instruction minimized the likelihood that the prior bad act

evidence would inflame the jury or cause it to convict the defendant on an

improper basis).   Thus, we conclude that the trial court did not abuse its

discretion in admitting this evidence.

      Lastly, Appellant argues that the trial court erred in failing to grant a

mistrial alleging that the trial court improperly allowed Appellant to continue

to testify after she had been hospitalized for a “heart attack or a heart

related incident several days earlier.” Appellant’s Brief, at 27. Our review of

a trial court’s denial of a motion for a mistrial is limited to determining

whether the trial court abused its discretion. Commonwealth v. Faurelus,

147 A.3d 905, 914 (Pa.Super. 2016).

      Appellant’s trial began on February 19, 2015, after which Appellant

testified on her own behalf on February 26-27, 2015. Before the prosecution

had finished its cross-examination of Appellant, the trial court was informed

on March 2, 2015, that Appellant had been hospitalized for complaints of

chest pains. Shortly thereafter, Appellant’s treating physician informed the

trial court that Appellant had undergone a minor procedure, would be

treated with medication, and would be able to proceed with her testimony at

trial upon being discharged from the hospital.

      On March 6, 2015, the parties reconvened before the trial court.

Counsel expressed some concern for Appellant’s health and her ability to

withstand cross-examination, but also emphasized his concern that he would

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be liable for any harm Appellant sustained from the stress of testifying. The

prosecutor shared that he was nearly finished with cross-examining

Appellant and confirmed that he would need only fifteen more minutes of

testimony. After a short colloquy by the trial court, Appellant admitted that

she was feeling well enough to continue cross-examination. The trial court

assured Appellant that she could ask for a break if she was not feeling well.

The prosecutor then continued with a brief period of cross-examination

during which Appellant did not complain of any difficulty.

      Based on these facts, we agree with the trial court’s conclusion that a

mistrial was not warranted. Appellant’s counsel offered no medical evidence

that would suggest that Appellant could not proceed with her testimony; in

fact, Appellant’s treating physician reported that Appellant suffered no

damage and could return to the witness stand upon her discharge from the

hospital.     Appellant agreed to continue with cross-examination as she told

the trial court that she “felt better.” N.T. 3/6/15, at 23.        Appellant then

finished a brief portion of cross-examination, never reporting any problem or

asking for a break. Moreover, Appellant does not attempt to argue that her

choice   to    continue   with   her   testimony   resulted   in   any   prejudice.

Accordingly, we conclude that the trial court properly exercised its discretion

in denying Appellant’s motion for a mistrial.

      For the foregoing reasons, we affirm Appellant’s judgment of sentence.

      Affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/28/2017




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