J-S01040-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                   Appellee                    :
                                               :
            v.                                 :
                                               :
BRIAN ARMSTRONG,                               :
                                               :
                   Appellant                   :   No. 235 EDA 2019


     Appeal from the Judgment of Sentence Entered September 23, 2016
             in the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0011105-2014

BEFORE:      BOWES, J., KUNSELMAN, J. and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.:                          FILED APRIL 03, 2020

        Brian Armstrong (Appellant) appeals nunc pro tunc from the judgment

of sentence imposed following his convictions for third-degree murder and

endangering the welfare of a child (EWOC). Upon review, we affirm.

        We provide the following background.           Appellant resided at his

parents’ home with his wife, sister, cousin, his one-year-old baby, K.A., and

his two-month-old infant, H.A. N.T., 6/20/2016, at 123, 125. On August 1,

2014, at approximately 12:00 p.m., Appellant’s wife departed the residence

for work, leaving K.A. and H.A. in Appellant’s exclusive custody and care.




____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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N.T., 6/17/2016, at 137. It was Appellant’s “first time actually being alone

with [his] children” as the sole caretaker.1 N.T., 6/20/2016, at 129.

       When Appellant’s wife departed, H.A. appeared to be unharmed. N.T.,

6/17/2020, at 138. A few hours later, Appellant presented H.A. at Einstein

Emergency Department in Philadelphia County.        N.T., 6/20/2016, at 156.

Upon arrival, H.A. was noted to be limp, had poor respiratory effort, and was

completely unresponsive with fixed and dilated pupils, which indicated that

he had significant brain injury. N.T., 6/17/2016, at 42. H.A. was without a

heart rate and required “resuscitation, including intubation, CPR, [and]

eventual placement of a chest tube.” Id. In desperate need of more care,

H.A. was transferred to Saint Christopher’s Hospital for Children (Saint

Christopher’s) in Philadelphia. Id. at 43. Within a short period of his arrival,

H.A. was declared brain-dead and placed on life support. Id. at 42-43. H.A.

was diagnosed with a multitude of injuries: a severe, complex skull fracture

on both sides of his skull; bleeding under the skull and outside of the brain;

severe swelling of his brain; hemorrhages to the retina of his eyes; healing

and new rib fractures, with bleeding surrounding both; a pulmonary

hemorrhage; and injury to his liver. Id. at 44-46. Two days after his arrival

at Saint Christopher’s, H.A. was pronounced dead.


____________________________________________


1 Although Appellant’s sister was at the home, she was sleeping, and
therefore, was not providing any care.



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      The nature of H.A.’s injuries triggered police involvement.      While at

Einstein Emergency Department on the day of the incident, Appellant

provided Officer Roscoe Jones with his account of the events that led to

H.A.’s injuries.   N.T., 6/16/2016, at 59.   In the meantime, Officer Alfonso

Powers secured Appellant’s home.      Id. at 112.   Rather than go with H.A.

when he was transferred to Saint Christopher’s, Appellant went home. N.T.,

6/20/2016, at 161.         When Appellant arrived      home, Officer Powers

transported Appellant and his sister to the Philadelphia Police Department

homicide unit, and arrived at approximately 7:05 p.m. on August 1, 2014.

N.T., 6/14/2016, at 56.

      At the homicide unit, detectives conducted a series of interviews with

Appellant regarding the events that led to H.A.’s injuries.       Of particular

interest to this appeal was a statement (video statement) taken on August

2, 2014, between 3:03 p.m. and 3:26 p.m.         In that interview, Appellant

explained the manner in which he played with his children and his account of

the events that took place on August 1, 2014.       Specifically, Appellant told

detectives that he placed H.A. in the bassinet upstairs, went downstairs to

get food, heard a noise upstairs, and ran back to the bedroom. Once there,

Appellant observed H.A. unresponsive on the floor of the bedroom.

Appellant asked his sister for help, and while she called 911, he attempted

to perform CPR on H.A.       Rather than wait for an ambulance, Appellant




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picked up H.A., ran outside, and flagged down a motorist, who drove to and

dropped them off at Einstein Emergency Department.

     Detectives responded to this account by asking Appellant how he

played with H.A. Appellant responded as follows.

     Uh, sometimes I throw, I throw my son in the air … But I still
     support his head … Okay, and sometimes I hold him like real
     close to me and I spin him around real hard like. So he gets
     dizzy … And then lay him on the bed, I just like seeing him dizzy
     like that … Oh the pats on the back … they’re pretty heavy[-
     ]handed. And I pat him on the back.

Commonwealth’s Trial Exhibit 48A, at 4.       When asked how H.A.

sustained bone fractures, Appellant said, “[s]ometimes we play too

rough.” Id. When asked whether he played rough with H.A. prior to

August 1, 2014, Appellant replied, “early last week, probably Monday,

Tuesday, Wednesday” he held H.A. “real tight, lots of poppa bear

hugs.” Id. at 5. Appellant acknowledged that the way he played with

H.A. could have caused his injuries and that his wife, mother, and

father confronted him about how he played with H.A. and stopped him

when he played too rough.       Finally, Appellant apologized for his

behavior, which he claims was not intentional, but a mistake.

     So, I apologize to my wife and to [H.A.], and to my family. It is
     my fault that [H.A.] is in critical condition for me handling him
     too rough, and he’s very fragile. I mistake him, sometimes, for
     being my 1[-]year[-]old, sometimes even when I change
     [H.A.’s] diaper, I change him a little rough.

Id. at 8. Based on the foregoing, Appellant was charged with third-degree

murder and EWOC.

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        Prior to trial, Appellant filed a motion seeking to suppress the

statements he made while in custody at the Philadelphia Police Department

homicide unit, including the video statement.              Appellant averred that his

statements     were    rendered      involuntary     due   to   the   duration   of   the

interrogation, psychological coercion, and improper Miranda2 warnings he

was given over the course of the interrogation. N.T., 6/15/2016, at 211-19.

After a pre-trial hearing, the suppression court granted the motion in part

and denied the motion in part.3

        The case proceeded to a jury trial, where the aforementioned facts

were developed and Appellant’s video statement was introduced. Appellant

was convicted of the aforementioned crimes.                On September 23, 2016,

Appellant was sentenced to a term of imprisonment of 15 to 30 years,

followed by 7 years of probation.              Appellant timely filed a post-sentence

motion for a new trial, in which he challenged the denial of the motion to

suppress his video statement and the weight of the evidence to sustain his

____________________________________________


2   Miranda v. Arizona, 384 U.S. 436 (1966).

3 The suppression court suppressed Appellant’s statements made between
August 1, 2014, at 11:58 p.m., and August 2, 2014, at 11:47 a.m., finding
that Appellant was not properly given Miranda warnings. In contrast, the
suppression court found Appellant’s video statement, which was made on
August 2, 2014, between 3:03 and 3:26 p.m., followed proper Miranda
warnings, and was a knowing, intelligent, and voluntary statement. N.T.,
6/15/2016, at 242-44. On appeal, Appellant challenges the trial court’s
order denying the motion to suppress the video statement. Appellant’s Brief
at 8.



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convictions. On November 18, 2016, the trial court denied Appellant’s post-

sentence motion.       Subsequently, Appellant’s counsel failed to file timely a

notice of appeal to this Court.

       Appellant filed a petition on January 26, 2018, pursuant to the Post

Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546, seeking the

reinstatement of his right to file a direct appeal nunc pro tunc.4 The PCRA

court ultimately granted Appellant’s petition, and this timely-filed appeal

followed.5

       On appeal, Appellant challenges the orders denying his suppression

and weight of the evidence claims. Appellant’s Brief at 8.

       We first address Appellant’s challenge to the order denying his motion

to suppress.     Appellant argues his statement was not voluntary, as it was

the product of coercion.        Id. at 32-33, 39, 48-50.   Specifically, Appellant

avers: 1) the duration of the interrogation was excessive; 2) his physical and

psychological state were both poor because “he was given crackers and two



____________________________________________


4 Appellant’s pro se PCRA petition was facially untimely. However, because
Appellant pleaded and proved an exception to the PCRA’s time-bar, see
Amended PCRA Petition, 7/19/2018, at 14-17, the PCRA court had
jurisdiction to reinstate Appellant’s right to file a direct appeal. See 42
Pa.C.S. § 9545(b)(1).

5Both Appellant and the trial court complied with the mandates of Pa.R.A.P.
1925.




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minutes to eat a sandwich over [a] 20 hour period,”6 he was left in a room

unsuitable for sleep, and his requests to speak to his wife and see H.A. were

rejected; and 3) the detectives’ attitudes were “both manipulative and

coercive” as they “attacked his masculinity” and told Appellant “his own

parents did not believe” he was innocent.            Id. at 49.   Appellant contends

these circumstances should be considered mindful of Appellant’s absence of

previous arrests, as well as the earlier improper Miranda warnings given by

the detectives. Id. at 50.

       We review this issue mindful of the following.

       [O]ur standard of review in addressing a challenge to a trial
       court’s denial of a suppression motion is limited to determining
       whether the factual findings are supported by the record and
       whether the legal conclusions drawn from those facts are
       correct.   We are bound by the suppression court’s factual
       findings so long as they are supported by the record; our
       standard of review on questions of law is de novo. Where, as
       here, the defendant is appealing the ruling of the suppression
       court, we may consider only the evidence of the Commonwealth
       and so much of the evidence for the defense as remains
       uncontradicted. Our scope of review of suppression rulings
       includes only the suppression hearing record and excludes
       evidence elicited at trial.

                                               ***

             It is well-established that when a defendant alleges that
       his confession was involuntary, the inquiry becomes not whether
       the defendant would have confessed without interrogation, but
       whether the interrogation was so manipulative or coercive that it
____________________________________________


6Although Appellant was physically at the homicide unit for over 20 hours,
he was in legal custody for approximately 16 hours. N.T., 6/15/2016, at
237-42.



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      deprived the defendant of his ability to make a free and
      unconstrained decision to confess. The voluntariness of a
      confession is determined from a review of the totality of the
      circumstances surrounding the confession. The Commonwealth
      has the burden of proving by a preponderance of the evidence
      that the defendant confessed voluntarily.

Commonwealth v. Yandamuri, 159 A.3d 503, 516-25 (Pa. 2017) (internal

citations omitted).

      Providing additional guidance, our Supreme Court has set forth the

following principles to review challenges to the voluntariness of a confession.

      The test for determining the voluntariness, and thus the
      admissibility, of an accused’s statement is the totality of the
      circumstances surrounding the statement. The mere fact that
      there is some passage of time between when an accused
      is arrested and when he or she gives an inculpatory
      statement does not constitute grounds for suppression of
      the statement. Numerous factors should be considered under
      a totality of the circumstances test to determine whether a
      statement was freely and voluntarily made: the means and
      duration of the interrogation, including whether questioning was
      repeated, prolonged, or accompanied by physical abuse or
      threats thereof; the length of the accused’s detention prior to
      the confession; whether the accused was advised of his or her
      constitutional rights; the attitude exhibited by the police during
      the interrogation; the accused’s physical and psychological state,
      including whether he or she was injured, ill, drugged, or
      intoxicated; the conditions attendant to the detention, including
      whether the accused was deprived of food, drink, sleep, or
      medical attention; the age, education, and intelligence of the
      accused; the experience of the accused with law enforcement
      and the criminal justice system; and any other factors which
      might serve to drain one’s powers of resistance to suggestion
      and coercion.

Commonwealth v. Martin, 101 A.3d 706, 724-25 (Pa. 2014) (internal

citations omitted) (emphasis added).




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      In its Pa.R.A.P. 1925(a) opinion, the trial court offered the following

analysis in support of its order denying Appellant’s motion to suppress.

             This [c]ourt observed the videotape of [Appellant] in the
      interview room and considered all the circumstances leading to
      the final statement. This [c]ourt does not find the length of time
      between the initial detention and the [video] statement unduly
      coercive. The detectives were actively investigating during that
      time frame. The length of time between [Appellant’s] arrest and
      confession does not render a confession involuntary absent
      evidence of an effort to coerce a confession or overcome
      [Appellant’s] will. See Commonwealth v. Sepulveda, 855
      A.2d 783, 793 (Pa. 2004).

            Furthermore, this [c]ourt finds that the conditions in the
      interview room were not unduly coercive. [Appellant] had the
      opportunity to be left alone and slept during the overnight hours.
      He was fed and permitted to use the restroom. [Appellant] was
      not in emotional or physical distress and was eating, drinking
      coffee[,] and engaging in conversation with the detectives. He
      did not exhibit behavior indicative of mental illness. He was not
      intoxicated. [Appellant] was a high school graduate and was
      currently studying to receive his CDL. Although there were some
      coercive tactics[,] i.e.[,] Detective White telling [Appellant] to be
      a man and that his parents didn’t even believe him[], the court
      did not find that these tactics were so reprehensible to basic
      societal notions of fairness to vitiate the voluntariness of the
      statement. The Pennsylvania Supreme Court has found that the
      use of artifice or even intentional misrepresentations to obtain a
      confession is insufficient to make an otherwise voluntary
      confession inadmissible “where the deception does not produce
      an untrustworthy confession or offend basic notions of fairness.”
      See Commonwealth v. Williams, 640 A.2d 1251, 1259 (Pa.
      1994) (claim that police falsely stated that they had located a
      gun sold by the defendant which was of the same caliber used in
      the crime, was not sufficient to render a confession involuntary
      absent     other     coercive    circumstances);        see      also
      Commonwealth v. Jones, 322 A.2d 119 (Pa. 1974) (finding
      confession was voluntary even though, after the defendant gave
      an initial exculpatory statement, the detective falsely claimed
      that a co[-]conspirator had implicated him).




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             This [c]ourt found that the [video] statement taken from
      3:03 p.m. until 3:26 p.m. on August 2, 2014, was knowing,
      intelligent and voluntary.

Trial Court Opinion, 4/1/2019, at 4-6 (citations omitted).

      Our review of the record confirms the trial court’s cogent analysis and

we find it aligned with our well-settled case law.    Although Appellant was

previously given improper Miranda warnings, indeed, the police properly

advised Appellant of his constitutional rights prior to obtaining the video

statement taken from 3:03 p.m. until 3:26 p.m. on August 2, 2014. A prior

Miranda violation does not preclude a suspect from waiving Miranda rights

in the future, after receiving the requisite warnings. See Oregon v. Elstad,

470 U.S. 298 (1985). Thus, we agree with the trial court that based upon

the totality of the circumstances, Appellant’s video statement was given

knowingly, intelligently, and voluntarily and therefore did not warrant

suppression.   See Commonwealth v. Harrell, 65 A.3d 420, 435 (Pa.

Super. 2013) (holding the trial court did not err in denying a motion to

suppress where “[t]he totality of the circumstances indicate[d] that [Harrell]

knowingly and voluntarily chose to waive his Miranda rights and make a

statement”).

      In Appellant’s second issue raised on appeal, he claims the trial court

abused its discretion by not granting him a new trial on the basis that the

verdict as to both of his convictions was against the weight of the evidence.

Appellant’s Brief at 33, 51-64.     Specifically, to support his contention,


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Appellant argues that “[n]o one witnessed the child’s fatal injuries,” asserts

the child’s injuries were “accidental in nature,” and cites trial testimony that

he is a peaceful and law-abiding citizen. Id. at 63. In addition, Appellant

claims that “[t]he jury placed greater weight upon the expert witness’s

conclusion – based upon a preponderance of the evidence standard.” Id. at

64.

      We consider this claim mindful of the following.

      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 underlying
            question of whether the verdict is against the
            weight of the evidence. Because the trial judge
            has had the opportunity to hear 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 determination that the verdict is against the
            weight of the evidence. 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 a
            new trial should be granted in the interest of justice.

Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (quoting

Commonwealth v. Widmer, 744 A.2d 745, 753 (Pa. 2005) (internal

citations omitted) (emphasis in original)).

      After reviewing all of the evidence, “including evidence of the

[Appellant’s] good character[,]” the trial court concluded the verdict was not

against the weight of the evidence because the decedent endured injuries

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indicative of a severe assault while under Appellant’s exclusive care. Trial

Court Opinion, 4/1/2019, at 16. The trial court’s conclusion is supported by

the record.

      At trial, the Commonwealth presented the testimony of Dr. McColgan,

medical director of the child protection program at Saint Christopher’s, as

well as forensic pathologist Dr. Wainer, who had reviewed the autopsy report

prepared by his colleagues. Dr. McColgan, facing a litany of hypotheticals,

made clear that H.A.’s injuries were sustained due to a significant, severe

impact and could neither have been sustained falling out of his bassinet nor

inflicted by a one-year-old baby. N.T., 6/17/2016, at 80-81, 104-109. Dr.

Wainer summarized the multitude of injuries that were documented over

H.A.’s entire body.    Dr. Wainer opined that the injuries were caused by

multiple impacts and similarly ruled out the possibility that the injuries could

have been caused by a fall or inflicted by a one-year-old baby.            N.T.,

6/20/2016, at 28, 44-45, 64.          Finally, Dr. McColgan and Dr. Wainer

concluded in their diagnoses, respectively, that H.A.’s injuries were

“inflicted” or the result of “physical abuse,” and the “cause of death in this

case [was] blunt impact trauma to the head and the manner of death [was]

homicide.” N.T., 6/17/2016, at 65; N.T., 6/20/2016, at 18.

      Regarding Appellant’s claim that the jury improperly weighed the

expert witness’s conclusion using a preponderance of the evidence standard,

the trial court aptly explained the error in this claim, as follows.


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      [Appellant] claims that Dr. Wainer’s testimony, that the term,
      “reasonable degree of medical certainty”, means “more likely
      than not”, was not sufficient to establish the cause and manner
      of death beyond a reasonable doubt. [Appellant] is confusing a
      legal term of art: “reasonable degree of medical certainty[,]”
      which is used to describe an expert opinion as one that would be
      widely accepted in the medical community, with a legal
      standard, proof beyond a reasonable doubt.

Trial Court Opinion, 4/1/2019, at 14.

      As to Appellant’s argument that his son’s injuries were accidental and

testimony showed that he is peaceful, we note that it is within the province

of the jury, sitting as fact-finder, to review the evidence and assess the

credibility of the testifying witnesses.   See Commonwealth v. Williams,

854 A.2d 440, 445 (Pa. 2004). “[E]vidence at trial need not preclude every

possibility of innocence, and the fact-finder is free to resolve any doubts

regarding a defendant’s guilt unless the evidence is so weak and

inconclusive that as a matter of law no probability of fact may be drawn

from the combined circumstances.” Commonwealth v. Hughes, 908 A.2d

924, 928 (Pa. Super. 2006). Issues of credibility are left to the jury; “the

jury is free to accept all, part, or none of the witness testimony.”

Commonwealth v. Russell, 665 A.2d 1239, 1246-47 (Pa. Super. 1995)

(citations omitted).   The jury was free to believe the testimony of Dr.

McColgan and Dr. Wainer.        Moreover, Appellant’s own recitation of the

episode and the manner in which he played with H.A., in context, allow one

to infer that the child’s fatality was caused by Appellant. N.T., 6/20/2016, at

139-58, 165-71.

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      Upon review, we discern no abuse of discretion in the trial court’s

conclusion that the verdicts were not against the weight of the evidence.

Thus, Appellant’s challenge to the weight of the evidence fails.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/3/20




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