J-S19004-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

NADERA BATSON

                            Appellant                No. 299 EDA 2014


      Appeal from the Judgment of Sentence Entered December 18, 2013
             In the Court of Common Pleas of Philadelphia County
               Criminal Division at No: CP-51-CR-0000123-2012


BEFORE: STABILE, JENKINS, and MUSMANNO, JJ.

MEMORANDUM BY STABILE, J.:                            FILED JUNE 23, 2015

       Appellant, Nadera Batson, appeals from the December 16, 2013

judgment of sentence imposing an aggregate 28½ to 57 years of

incarceration for third-degree murder, conspiracy, endangering the welfare

of a child and possession of an instrument of crime.1 We affirm.

       The trial court summarized the pertinent facts in its Pa.R.A.P. 1925(a)

opinion:

             Ashley Brewton [(“Ashley”)], the natural mother of the
       child decedent [JaQuinn Brewton (“JaQuinn”)] in this case,
       allowed [Appellant] to take [JaQuinn] in during March of 2011
       because she and her other children were moving into a shelter.
       Later, they fought over [Appellant’s] attempt to gain legal
       custody of [JaQuinn]. Ashley Brewton last spoke with her son

____________________________________________


1
    18 Pa.C.S.A. §§ 2502(c), 903, 4304 and 907, respectively.
J-S19004-15


     during May of 2011, and did not see him again until his
     hospitalization at [Children’s Hospital Of Philadelphia (“CHOP”)].

            Marcus King, [Appellant’s] boyfriend and codefendant,
     testified that they had started dating on December 7, 2009 and
     moved in together shortly thereafter. He met [Ashley] during
     that time and through [Appellant]. [JaQuinn] was [Appellant’s]
     godson, and for a time [Appellant] and King lived with [Ashley]
     and her children. In January of 2011, when [Appellant] and King
     had moved to 4716 Chestnut Street, [JaQuinn] moved in with
     them. At that time, and until his death, [JaQuinn] had a limited
     vocabulary of approximately ten to thirty words, and called
     everyone, including King and [Appellant], ‘mom.’

            King acknowledged that during the months when
     [JaQuinn] lived with him and [Appellant], he occasionally ‘put his
     hands’ on [JaQuinn]. He saw [Appellant] strike [JaQuinn] almost
     daily, using her hands, a belt, a brush, and a shoe. She would
     do this in response to [JaQuinn’s] touching things that he was
     not supposed to touch. [JaQuinn] was not potty trained when he
     came to live with [Appellant], and she would beat him in order to
     punish failures to use his toilet trainer. On a few occasions, King
     intervened to stop the beatings, which he thought were
     excessive.

           King noticed the burns on [JaQuinn’s] feet, and purchased
     burn cream and gauze to treat him. King and [Appellant]
     discussed taking [JaQuinn] to the hospital for his foot burns, but
     were afraid that they might be arrested if they did so. One or
     two months later, when [JaQuinn] missed his toilet trainer and
     defecated onto the floor, [Appellant] burned his buttocks with a
     blowtorch that King had brought home from his job. King
     grabbed [JaQuinn] and took him into the bathroom, running cold
     water over his buttocks. When he did so, layers of skin came off
     in the flow of the water. King dressed his wound with burn
     cream and gauze. The night before [JaQuinn] was taken to
     CHOP, June 28, 2011, [JaQuinn] had trouble getting to sleep and
     kept getting out of his bed. [Appellant] beat him and then he
     went to sleep.

            Hasan Babb, who lived in [Appellant’s] apartment building
     at the time when [JaQuinn] was under [Appellant’s] care,
     testified that the building had shared bathroom and kitchen
     areas, and that he resided in the room next door to [Appellant].
     He said that on several occasions he heard [Appellant] refer to

                                    -2-
J-S19004-15


     [JaQuinn] as ‘little motherfucker’ or ‘this little nigger.’ In the
     weeks before [JaQuinn’s] death, there were several midday
     episodes during which he would hear loud music from
     [Appellant’s] room, and then underneath the music what
     sounded like lashes and yelling and crying. He also heard
     [Appellant] say ‘move your hands’ multiple times, as well as
     ‘stop crying,’ ‘shut up,’ and ‘sit still.’ These episodes would occur
     approximately four times a week, and lasted for approximately
     one hour each.

            At one point, Babb’s girlfriend was with him in his room
     during one of the midday episodes of loud music, screaming,
     crying, and the sound of lashes, and she was upset by it. At her
     behest, Babb went to [Appellant’s] room and knocked on the
     door. When [Appellant] answered, he commented that ‘it’ had
     been going on for a while, and she responded that she would
     turn the music off. That seemed to end that particular incident.
     On another similar occasion, Babb’s door was cracked and he
     saw [Appellant] and [JaQuinn] walking to the communal
     bathroom and heard [Appellant] say, on her cell phone, ‘this
     little motherfucker shitting the bed.’

           Babb was troubled by what he heard, and he looked at the
     Department of Human Services (“DHS”) website to learn how to
     make an anonymous tip about what he suspected was child
     abuse. He also sent a text message to his landlord, in hopes
     that he might be able to intervene and end the beatings. He
     wrote ‘I ain’t tryna [sic] get involved in other peoples [sic]
     matters. But this woman beats her kid nonstop for hours. Shit
     just don’t seem healthy to me.’

           On June 29th of 2011, at approximately 11:00 a.m.,
     Lieutenant Dwayne Culbrath of the Philadelphia Fire Department
     was assigned to respond to an emergency call that a child had
     fallen down a flight of stairs at 4716 Chestnut Street in
     Philadelphia. When Culbrath arrived, he went to [Appellant’s]
     room on the fourth floor of the apartment building, where he
     saw three-year-old [JaQuinn], dressed only in a diaper, who had
     no vital signs and appeared to be deceased. Culbrath spoke with
     [Appellant], who told him that she had seen [JaQuinn] fall down
     the stairs, stand up, and then slump against the wall. Culbrath
     saw that [JaQuinn] had multiple dark markings on his torso and
     arms. [JaQuinn] went on to spend two weeks in the hospital,
     and then perish from his wounds.


                                     -3-
J-S19004-15


                                      […]

             Numerous of [JaQuinn’s] internal organs, including his
      pancreas, left adrenal gland, and liver, showed fibrosis,
      consistent with a rupture to the pancreas that causes enzymes
      to escape into the abdominal captivity and irritate the organs in
      that cavity. Dr. [Aaron Rosen, Associate Medical Examiner for
      the City of Philadelphia], found that the injury to [JaQuinn’s]
      pancreas was not consistent with a fall down the stairs. Instead,
      it was consistent with a focused and concentrated blow to the
      area, as when a child falls into a handlebar while riding a bicycle,
      or when another person hits the child in the abdomen, either
      with a hand or a hard object. Because the pancreas is in the
      middle of the body, it is not typically injured in this directed way
      when a person falls down the stairs. Stair falls tend to cause
      injuries to the head and extremities of the body rather than the
      middle. Dr. Rosen determined that the cause of [JaQuinn’s]
      death was blunt impact trauma and the manner of death was
      homicide.

Trial Court Opinion, 3/2/14, at 2-5, 7 (record citations omitted).

      Police arrested Appellant on July 15, 2011 for the murder of JaQuinn

Brewton.    On August 12, 2013 a jury found Appellant guilty of the

aforementioned offenses.    The trial court imposed sentence on December

18, 2013 and Appellant filed a timely post-sentence motion on December 23,

2013. The trial court denied Appellant’s post-sentence motion on December

30, 2013. This timely appeal followed.

      Appellant raises three questions for our review:

            I.    Is [Appellant] entitled to an arrest of judgment on
                  the charge of Murder in the Third Degree and/or the
                  charge of Criminal Conspiracy where the evidence is
                  insufficient to sustain the verdict?

            II.   Is [Appellant] entitled to a new trial on all charges
                  where the verdict is against the weight of the
                  evidence?


                                     -4-
J-S19004-15


            III.   Is [Appellant] entitled to a new trial as the result of
                   Court error when the Court failed to grant a mistrial
                   in the face of blatant prosecutorial misconduct?

Appellant’s Brief at 3.

      With his first two arguments, Appellant asserts the Commonwealth

failed to prove malice in support of the murder conviction and failed to prove

the parties reached a conspiratorial agreement.        In his third argument,

Appellant asserts he is entitled to a new trial because the prosecutor called

her a liar during closing argument. We have reviewed the parties’ briefs, the

applicable law, the record, and the trial court opinion. We conclude the trial

court’s well-reasoned opinion aptly analyzes each of Appellant’s assertions of

error. We therefore affirm the judgment of sentence based on the analysis

set forth in the trial court’s March 2, 2014 opinion. We direct that a copy of

that opinion be filed along with this memorandum.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/23/2015




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                            IN THE COURT OF COMMON PLEAS
                       FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
                                CRIMINAL TRIAL DIVISION

COMMONWEAL TH OF PENNSYL V ANJA                                        CP~51 ·CR·OOOO 123~2012




        v.                                                          : 299 EDA 201_4
                                       CP-St-CR-0000123-2012 Comm. v, Balson, Nado,a
                                                                                                        F·ILED
                                                         Opinion
                                                                                                         MAR 2 4 2014
NADERA BATSON
                                                                                                    Criminal Appeals Unit
                                            II II I Ill I 111111111111111                         First Judicial District of PA
                                                    7130414291
                                                      OPINION
McDermott, J;                                                                                March 24, 2014



Procedural History

        On July 15, 2011, the defendant, Nadera Batson, was arrested and charged with Murder,

Conspiracy, Possession of an Instrument of Crime (PIC), Reckless Endangerment of Another

Person ("REAP"); and Endangering the Welfare of a Child ("EWOC").                          On August 6, 2013, the
                                                                                       1
defendant appeared before this Court and elected to be tried by a jury.


        On August 12, 2013, the jury returned a verdict of guilty as to Third Degree Murder,

Conspiracy, PIC, and EWOC.2 On December 18, 2013,-after reviewingpresentence                           and mental

health reports, this Court imposed a sentence of twenty to forty years of incarceration for Third

Degree Murder, consecutive sentences of seven and one half to fifteen years of incarceration for

Conspiracy and one to two years of incarceration for EWOC, and a concurrent sentence of one to

two years of incarceration for PIC, for an aggregate sentence of twenty-eight and one half to

fifty-seven years of incarceration.

I On August 2, 2013, her codefendant Marcus King, who testified in this matter as described infra, entered a pica to
Third Degree Murder, Conspiracy, and EWOC at CP-51-CR-0000121-2012.
2
  The REAP charge was no/le prossed.
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       On December 23, 2013, the defendant filed a timely post-sentence motion, which was

denied on December 30. On January 28, 2014, the defendant filed a timely Notice of Appeal,

and on February 19, 2014, the defendant filed a timely response to this Court's order pursuant to

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




       Ashley Brewton, the natural mother of the child decedent in this case, allowed the

defendant to take him in during March of 2011 because she and her other children were moving

into a shelter. Later, they fought over the defendant's attempt to gain legal custody of the

decedent. Ashley Brewton last spoke with her son during May of 2011, and did not see him

again until his hospitalization at CHOP. N.T. August 8, 213, pp. 155-170.


       Marcus King, the defendant's boyfriend and codefendant, testified that they had started

dating on December 7, 2009 and moved in together shortly thereafter. He met Ashley Brewton,

the decedent's mother, during that time and through the defendant. The decedent was the

defendant's godson, and for a time the defendant and King lived with Ashley Brewton and her

children. In January of 2011, when the defendant and King had moved to 4 716 Chestnut Street,

the decedent moved in with them. At that time, and until his death, JaQuinn Brewton had a

limited vocabulary of approximately ten to thirty words, and called everyone, including King and

the defendant, "mom." N.T. August 8, 213, pp. 9-17.


       King acknowledged that during the months when Brewton lived with him and the

defendant, he occasionally "put his hands" on the child. He saw the defendant strike Brewton

almost daily, using her hands, a belt, a brush, and a shoe. She would do this in response to

Brewton's touching things that he was not supposed to touch. Brewton was not potty trained

when he came to live with the defendant, and she would beat him in order to punish failures to

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use his toilet trainer. On a few occasions, King intervened to stop the beatings, which he thought

were excessive. Id. at 18-31.


       King noticed the bums on Brewton's feet, and purchased bum cream and gauze to treat

him. King and the defendant discussed taking him to the hospital for his foot bums, but were

afraid that they might be arrested if they did so. One or two months later, when Brewton missed

his toilet trainer and defecated onto the floor, the defendant burned his buttocks with a blowtorch

that King had brought home from his job. King grabbed Brewton and took him into the

bathroom, running cold water over his buttocks. When he did so, layers of skin came off in the

flow of the water. King dressed his wound with bum cream and gauze. The night before

Brewton was taken to CHOP, June 28, 2011, Brewton had trouble getting to sleep and kept

getting out of his bed. The defendant beat him and then he went to sleep. Id. at 31-55.

       Hasan Babb, who lived in the. defendant's apartment building at the time when Brewton

was under the defendant's care, testified that the building had shared bathroom and kitchen areas,

and that he resided in the room next door to the defendant. He said that on several occasions he

heard the defendant refer to Brewton as "little motherfucker" or "this little nigger." In the weeks

before Brewton's death, there were several midday episodes during which he would hear loud

music from the defendant's room, and then underneath the music what sounded like lashes and

yelling and crying. He also heard the defendant say "move your hands" multiple times, as well

as "stop crying," "shut up," and "sit still." These episodes would occur approximately four times

a week, and lasted for approximately one hour each. N .T. August 6, 2013, pp. 98-107.

       At one point, Babb's girlfriend was with him in his room during one of the midday

episodes ofloud music, screaming, crying, and the sound of lashes, and she was upset by it. At

her behest, Babb went to the defendant's room and knocked on her door. When the defendant

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answered, he commented that "it" had been going on for a while, and she responded that she

would tum the music off. That seemed to end that particular incident. On another similar

occasion, Babb's door was cracked and he saw the defendant and Brewton walking to the

communal bathroom and heard the defendant say, on her cell phone, "This little motherfucker

shitting the bed." ld. at 107-110.

       Babb was troubled by what he heard, and he looked at the Department of Human

Services ("OHS'') website to learn how to make an anonymous tip about what he suspected was

child abuse. He also sent a text message to his landlord, in hopes that he might be able to

intervene and end the beatings. He wrote "I ain't tryna get involved in other peoples matters.

But this woman beats her kid nonstop for hours. Shit just don't seem healthy to me." Id. at 110-

119; Commw. Exh. 115 (Babb Statement).

       On June 29th of 2011, at approximately L 1:00 a.m., Lieutenant Dwayne Culbrath of the

Philadelphia Fire Department was assigned to respond to an emergency call that a child had

fallen down a flight of stairs at 4716 Chestnut Street in Philadelphia. When Culbrath arrived, he

went to the defendant's room on the fourth floor of the apartment building, where he saw three-

year-old JaQuinn Brewton, dressed only in a diaper, who had no vital signs and appeared to be

deceased. Culbrath spoke with the defendant, who told him that she had seen Brewton fall down

the stairs, stand up, and then slump against the wall. Culbrath saw that Brewton had multiple

dark markings on his torso and arms. N.T. August 6, 2013, pp. 50-59. Brewton went on to

spend two weeks in the hospital, and then perish from his wounds.

       Philadelphia Police Officer Tameka Terry of the Special Victims Unit took a statement

from the defendant on June 29, 2011, in which the defendant told her that Brewton had injured



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himself by falling down a flight of stairs, and that he burned his feet by stepping into a hot bath.

N.T. August 9, 2013, pp. 5-28 ..


       Christine Biggie, Trauma Nurse Practitioner at Children's Hospital of Philadelphia

("CHOP"), gave expert testimony as to her treatment of Brewton in the emergency room.

Initially, she noticed there were multiple bruises and cuts and skin marks all over his face and

body. She also took pictures of his body, including detailed photographs of his numerous

wounds, as a part of her compilation of his medical record. She noted that his wounds were at

various stages of healing; some were scars, and some were open wounds or bruises. Brewtori's

body was very lean, and his abdomen was swollen and distended. He had several injuries which

were partially healed where it appeared that he was missing small pieces of skin. N.T. August 7,

2013, pp. 95-113.


       Biggie observed a burn on Brewton's buttocks, and by its state of healing estimated that it

was a week old. The burn did not appear to    be from a hot object, which would    leave a defined

shape or imprint, or a hot liquid, which would leave splash marks that would appear as dots

around the greater area of the burn. Biggie determined that it was likely caused by exposure to

flame. On both of Brewton's feet, she observed healed second-degree bums caused by a hot

liquid, with splash marks around the periphery of the burn area and on his lower legs. The tops

of his feet were burned, but the bottoms were uninjured. This is consistent not with stepping into

a hot tub, as the defendant reported, but with a spilled hot liquid. Id. at 114-125.


       Biggie described Brewton's pancreas injury as a laceration followed by severe bruising.

He had a similar wound to his spleen. She asked the defendant about the injuries to Brewton's

feet, and she told her that Brewton had been taken to another local hospital for treatment of the

bums. She explained that he had burned his buttocks by sitting on a hot blowtorch. When

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Biggie asked if she meant a lighter, she again insisted that it was a blowtorch. The defendant

also told Biggie that Brewton had thrown up green vomit the prior week. Biggie noted that this

was consistent with a serious pancreas injury, which can cause bile to show up in the injured

person's vomit. The defendant also said that Brewton had not had much appetite in the·

preceding weeks, which was also consistent with a pancreatic injury. Id. at 125- 140.

       Dr. Aaron Rosen, Associate Medical Examiner for the City of Philadelphia, gave expert

testimony as to the autopsy he performed on Brewton. As part of his forensic investigation, he

reviewed hospital records from Brewton's stay at CHOP from June 29, 2011, to July 12, 2011,

when he was finally pronounced dead. Dr. Rosen noted several u-shaped scars on Brewton's

body. He also reviewed hospital x-ray results that indicated a potential healing fracture in

Brewton's lower left arm. Id. at 176-189.

       Dr. Rosen explained that pancreatic injuries such as the one Brewton suffered can cause

damage to the other abdominal organs when pancreatic fluids leak into the abdomen, and can

also cause hypotension and cardio-circulatory impairment, which can rob other organs (such as

the brain) of necessary blood-borne oxygen. In response, the brain vasodi lates, calling for more

blood, but becomes swollen with blood that is deoxygenated. This accounts for Brewton's brain

swelling at the time of his death. Id at 190- 195.

       Dr. Rosen also described linear-pattern scarring on Brewton' s legs and left arm,

consistent with application of the metal tines of a comb that was found at the defendant's

residence. He did not see any scars on Brewton's body that were consistent with an immersion

bum, as when a child steps into or is placed into too-hot bathwater; the burn scars on the top of

Brewton's feet were instead consistent with the pouring of scalding liquid to the tops of his feet.



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The healing fracture to Brewton 's left arm was consistent with reaching out to stop a fall. Id at

206-223.

        Numerous of Brewton's internal organs, including his pancreas, left adrenal gland, and

liver, showed fibrosis, consistent with a rupture to the pancreas that causes enzymes to escape

into the abdominal cavity and irritate the organs in that cavity. Dr. Rosen found that the injury to

Brewton's pancreas was not consistent with a fall down the stairs. Instead, it was consistent with

a focused and concentrated blow to the area, as when a child falls into a handlebar while riding a

bicycle, or when another person hits the child in the abdomen, either with a hand or a hard

object. Because the pancreas is in the middle of the body, it is not typically injured in this

directed way when a person falls down the stairs. Stair falls tend to cause injuries to the head

and extremities of the body rather than the middle. Dr. Brewton determined that the cause of

Brewton's death was blunt impact trauma and the manner of death was homicide.


Id. at 224-234.

        On July 14, 2011, PhiladelphiaDetective    Ronald Sirianni tested the hot water

temperature in the bathroom next to the defendant's room at 4716 Chestnut Street, and found that

when he ran only the sink' s hot water for fifteen to twenty seconds, the water temperature was

132 degrees Fahrenheit and did not bum his hand when he submerged it. He tested the bathtub

in the same fashion, and the temperature was 109 degrees Fahrenheit. N.T. August 6, 2013, pp.

185-204. Pursuant to a warrant, Philadelphia Detective Nathan Williams recovered several items

from the defendant and her home. These included several lighters and a flexible-necked torch.

N.T. August 7, 2013, pp. 35-43.


       The defense adduced thetestimony of Liana Batson, Janelle Batson, Clarina Harris, and

Nahshona Mitchell, the defendant's aunts, as to the defendant's reputation for peaceful

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nonviolence. N.T. August 9, 2013, pp.77-85~ 143-144. Tameka Batson, her mother, testified

that she had seen the defendant care for Brewton but had never seen her mistreat him. Id at 89-

IO l.




           On appeal, the defendant argues that this Court erred in overruling a defense objection

during the Commonwealth's       closing arguments, that the evidence was insufficient to support the

convictions, that the convictions are against the weight of the evidence, and that the sentence is

excessive and an abuse of this Court's discretion.


Mistrial


        The defendant argues that a comment that the Commonwealth made during closing

arguments justified the defendant's mistrial motion, and that this Court erred in denying that

motion. No relief is due.


        During closing arguments, the Commonwealth said "consider that there's no evidence

that he did fall down the stairs except for the defendant who has lied and covered up everything

else that she did." N.T. August 9, 2013, p. 214. The defense made an objection, and this Court

promptly instructed the jury that their recollection of the evidence controls. At the end of the

Commonwealth's closing, this Court denied the defense's mistrial motion. Id. at 236-237.


        "[T[he remedy of a mistrial is an extreme one ... and the motion for such relief is

addressed to the sound discretion of the court. It is primarily within the trial court's discretion to

determine whether Appellant was prejudiced by the event that forms the substance of the

motion." Commonwealth v, Montgomery> 626 A.2d 109, 112 (Pa. 1993)(citations omitted),

abrogated on other grounds, Commonwealth v. Burke, 781 A.2d 1136 (Pa. 200l)(dismissal            too


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severe a remedy for Commonwealth         failure to disclose evidence).     Mistrial   is required only when

incident is of such a nature that its unavoidable    effect is to deprive the defendant     of a fair trial;

moreover, it is primarily   within trial court's discretion to determine    whether defendant has been

prejudiced by the event underlying     the motion.   Montgomery, 113.


        In Commonwealth v. Floyd, 484 A.2d 365 (Pa. 1984), our Supreme Court held that a

prosecutor's comment in closing arguments that the defendant lied about a particular statement

"was a fair inference from irrefutable evidence, rather than a broad characterization of the whole

of the testimony as a 'big lie,' see Commonwealth v. Kuebler, 399 A.2d 116 (Pa. 1979)." This

instance is much more like Floyd than Kuebler, in that it was an isolated comment rather than a

sweeping one that would render everything that the defendant stated a "big lie," including trial

testimony. Here, the defendant elected not to testify, and thus whatever prejudice might have

attached to the comment was minimal. Further, the jury was immediately instructed that it was

their recollection of the evidence, and not the Commonwealth's,           that controls. Jurors are

presumed to follow instructions. See Commonwealth v. Baez, 720 A.2d 711 (Pa. 1998).


        This passing comment by the Commonwealth, which was addressed almost

instantaneously by this Court's instruction, in no way had the unavoidable effect of depriving the

defendant of a fair trial. That the Commonwealth and the defense disagree as to how Brewton

came to be mortallr injured is implicit, and thus the impact of the Commonwealth's comment is

minimal. This argument is meritless.


Sufficiency of the Evidence


        Evidence presented at trial is sufficient when, viewed in the light most favorable to the

Commonwealth as verdict winner, the evidence and all reasonable inferences derived therefrom

are sufficient to establish all elements of the offense beyond a reasonable doubt. Commonwealth

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v. Baumhammers, 960 A.2d 59, 68 (Pa. 2008). The Commonwealth may sustain its burden of

proving every element of the crime beyond a reasonable doubt by means of wholly

circumstantial evidence. Commonwealth v. Estepp, 17 A.3d 939, 943 (Pa. Super. 2011) (citing

Commonwealth v. Brooks, 7 A.3d 852, 856-57 (Pa Super. 2010). The fact-finder is free to

believe all, part, or none of the evidence, and credibility determinations rest solely within the

purview of the fact-finder. Commonwealth v. Treiber, 874 A.2d 26, 30 (Pa. 2005).

       18 Pa.C.S. § 2502 establishes that Murder in the Third Degree is any murder that is not

committed as an intentional killing, and is not committed while defendant was engaged as a

principal or an accomplice in the perpetration of a felony. Third-degree Murder is a killing with

malice. See Commonwealth v. Thomas, 717 A.2d 468, 479-80 (Pa. 1998). In Commonwealth v.

Ludwig, 874 A.2d 623, 631-632 (Pa. 2005), the Supreme Court explained:

                   In determining whether malice has been established, our Court
               has utilized the traditional definition of that mental state set forth
               in Commonwealth v. Drum, 58 Pa. 9 (1868). That seminal
               definition makes clear that malice aforethought requires a unique
               state or frame of mind characterized by wickedness, hardness,
               cruelty, recklessness, and disregard of social duty:                   .
                   Malice is a legal term, implying much more [than ill-will, spite,
               or a grudge]. It comprehends not only a particular ill-will, but
               every case where there is 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. Murder, therefore, at common law embraces cases
               where no intent to kill existed, but where the state or frame of mind
               termed malice, in its legal sense, prevailed. Id. at 15. ·
                   Malice has been characterized as exhibiting an "extreme
               indifference to human life," Commonwealth v. Gardner, 490 Pa.
               421, 416 A.2d 1007, 1008 (1980) (emphasis supplied), and "may
               be found to exist not only in an intentional killing, but also in an
               unintentional homicide where the perpetrator 'consciously
               disregarded an unjustified and extremely high risk that his actions
               might cause death or serious bodily harm."' Commonwealth v.
               Young, 494 Pa. 224, 431 A.2d 230, 232 (1981) (quoting
               Commonwealth v. Hare, 486 Pa. 123, 404 A.2d 388, 391 (l 979))
               ( emphasis supplied).

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        Malic_e may be inferred by considering the totality of the circumstances. Commonwealth

v. Dunphy, 20 A.3d 1215, 1219 (Pa. Super. 2011); see e.g. Commonwealth v. Hardy, 918 A.2d

766, 774 (Pa. Super. 2007)("It was reasonable for the jury to conclude that grabbing Victim, an

infant, with enough violence to fracture ribs, shaking him and/or otherwise causing his head to

strike an object constituted not merely ill-will but, rather, wickedness of disposition, hardness of

heart, recklessness of consequences, and a mind regardless of social duty-i. e., malice necessary

to support Appellant's· murder conviction"); Commonwealth v. Kellam, 719 A.2d 792, 797 (Pa.

Super. 1998)(finding evidence sufficient to find appellant acted with malice where appellant left

infant in a hot room for a prolonged period of time without feeding the infant).

       Here, ample physical and eyewitness evidence established that the defendant, along with

Marcus King, beat and abused Brewton for a prolonged period before his death, and denied him

appropriate medical care for fear that they might be arrested if his wounds and scars came to

light. The defendant struck Brewton hard enough to cause severe, and ultimately fatal, damage

to several of his internal organs including his pancreas. This alone establishes malice sufficient

to support this conviction. Burning his buttocks with a blowtorch is also an act that establishes

the defendant's wickedness of disposition, hardness of heart, recklessness of consequences, and

disregard of social duty. The evidence overwhelmingly establishes that the defendant caused

Brewton's death, doing so with malice; this claim is meritless,


       To sustain a conviction for Conspiracy, the Commonwealth must establish that the

defendant (l) entered into an agreement to commit or aid in an unlawful act with another person

or persons, (2) with a shared criminal intent and (3) an overt act was done in furtherance of the

conspiracy. Commonwealth v. McCall, 911 A.2d 992, 996 (Pa. Super. 2006)(citing

Commonwealth v. Hennigan, 753 A.2d 245, 253 (Pa. Super. 2000)). An explicit or formal

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agreement to commit crimes can seldom, if ever, be proved, but a conspiracy may be inferred

where it is demonstrated that the relation, conduct, or circumstances of the parties, and the overt

acts of the co-conspirators sufficiently prove the formation of a criminal confederation.

Commonwealth v. Perez, 931 A.2d 703, 708-09 (Pa. Super. 2007); Commonwealth v. Jones, 874

A.2d I 08, 121-22 (Pa. Super. 2005).

       The Superior Court has identified four factors to be considered in determining the

sufficiency of the evidence supporting the existence of a conspiracy: "(1) an association between

alleged conspirators; (2) knowledge of the commission of the crime; (3) presence at the scene of

the crime; and (4) in some situations, participation in the object of the conspiracy."

Commonwealth v. Lambert, 795 A.2d 1010, 1016 (Pa. Super. 2002).

       In Commonwealth. v. Geiger, 944 A.2d 85 (Pa. Super. 2008), alloc. denied, 964 A.2d I

(Pa. 2009), the Superior Court upheld a conviction for Conspiracy to Commit Third Degree

Murder where the defendant and her boyfriend both routinely beat four young girls entrusted to

their care, and failed to provide adequate food to them. The youngest of them succumbed to a

particularly harsh beating carried out almost exclusively by the defendant's boyfriend. The

defendant's conviction was upheld, as "[t]he law is well-settled that conspirators are responsible

for the actions of their cohorts, whether such conduct is planned by the consortium or engaged in

by a conspirator without prior approval of the group." Id. at 92. This is especially true where, as

here, both defendants struck Brewton and both of them chose not to take him to see a doctor

despite his grave wounds, because they feared exposure. The evidence is more than sufficient to

support the conviction for Conspiracy, and this argument is meritless.




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                                    Weight of the Evidence

                                                           Weight of the evidence and sufficiency of the evidence are discrete inquiries. An

                                    argument that the verdict is contrary to the weight of the evidence concedes that there is

                                    sufficient evidence to sustain the verdict but contends, nevertheless, that the verdict is against the

                                    weight of the evidence. Commonwealth v. Davis, 799 A.2d 860, 865 (Pa. Super. 2002). An

                                    allegation that the verdict is against the weight of the evidence is addressed to the sound

                                    discretion of the trial court. Commonwealth v. Dupre, 866 A.2d 1089, 1101 (Pa. Super.

                                    2005)(citing Commonwealth v. Sullivan, 820 A.2d 795, 805·806 (Pa. Super. 2003);

                                    Commonwealth v. Widmer, 744 A.2d 745, 751 · 752 (Pa. 2000). The Supreme Court has explained

                                    that the test is whether the verdict must be so contrary to the evidence as to shock one's sense of

                                    justice. Commonwealth v. Diggs, 949 A.2d 873, 879·80 (Pa. 2008). As the finder of fact is free to

                                    believe all, part, or none of the evidence and to determine the credibility of the witnesses, for a

                                    defendant to prevail on a challenge of the weight, the evidence must be "so tenuous, vague and

                                    uncertain that the verdict shocks the conscience of the court." Commonwealth v. Sullivan, 820

                                    A.2d 795, 806 (Pa. Super. 2003).

                                                           Specifically, the defendant argues that the greater weight of the evidence does not support

                                    the essential elements of malice for murder or agreement for conspiracy. As to conspiracy,

                                    where both defendants struck the child victim in each other's presence and each agreed with the

                                    other that they would not take the victim to see a doctor for fear of exposure of their heinous

                                    acts, this argument is frivolous. As to malice, the discussion of the evidence supra appropriately

                                    emphasizes the malicious nature of the defendant's behavior, and her wickedness of disposition;

                                    hardness of heart, recklessness of consequences, and disregard of social duty. "[Mjalice may be

                                    found where the defendant has consciously disregarded an unjustified and extremely high risk



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that her conduct might cause death or serious injury to another." Commonwealth v. Geiger, 944

A.2d 85, 90 (Pa. Super. 2008)(citing Commonwealth v. Young, 431 A.2d 230 (Pa. 1981)).

        Put simply, the overwhelming and one-sided nature of the evidence in this case makes

any argument as to the weight of the evidence utterly unavailing. This verdict is entirely

consistent with the law and the evidence.

The Sentences Imposed

        In her final claim of error, the defendant argues that the sentence is manifestly excessive

and an abuse of discretion. This Court imposed a sentence of twenty to forty years of

incarceration for Third Degree Murder, seven and one half to fifteen years of incarceration for

Conspiracy, one to two years of incarceration for EWOC, and one to two years of incarceration

for PIC. All but the PIC sentence are to run consecutive, for an aggregate sentence of twenty-

eight and one half to fifty-seven years of incarceration.


       "Sentencing is a matter vested in the sound discretion of the sentencing judge, and a

sentence will not be disturbed on appeal absent a manifest abuse of discretion."      Commonwealth

v. Cunningham, 805 A.2d 566, 575 (Pa. Super. 2002) (citations omitted). On appeal, a

sentencing court will not be found to have abused its discretion unless the record reveals that the

judgment exercised was manifestly unreasonable, or the result of partiality, prejudice, bias, or ill-

will. Id. 42 Pa.C.S. § 972l(b) specifies that "the sentence imposed should call for confinement

that is consistent with the protection of the public, the gravity of the offense as it relates to the

impact on the life of the victim and on the community, and the rehabilitative needs of the

defendant."

       In this matter, this Court reviewed pre-sentence reports and mental health reports

pertaining to the defendant prior to imposing sentence. This Court heard from numerous


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witnesses, including several members of the defendant's family. The defendant elected to

allocute and made an extended statement, which this Court considered. Finally, taking into

account all relevant facts and balancing the needs of the public, the gravity of the offense, and

'the rehabilitative needs of the defendant, this Court imposed a guideline sentence as to Third

Degree Murder and Conspiracy. Specifically, this Court took into account the impact of the

defendant's behavior not only on the child victim, but also on his family and on all of the

emergency, public safety, and medical workers who were exposed to this unusually graphic and

horrifying case. In addition, this Court took into account the ongoing nature both of the

defendant's cruel behavior and of the victim's suffering and the defendant's hard-hearted refusal

to access medical and supportive services or surrender the victim so that his suffering might be

alleviated and his life spared.

        As to EWOC, the sentence of one to two years is a guideline sentence and is manifestly

appropriate under the circumstances, The defendant chose to take on the responsibility of caring

for Brewton, and thus very willfully endangered him. As to PIC, the guidelines call for a

sentence of restorative sanctions to one month of incarceration, plus or minus three months.

Thus this sentence does represent an upward departure. The grotesquery of the defendant's

resort to torture via blowtorch suggests serious depravity, and to be frank, the defendant could

easily have been sentenced to more time on other counts in recognition of that fact. Because no

lesser sentence would address the crimes charged under our sentencing scheme, this argument is

meritless.




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For the foregoing reasons, the decision of this Court should be affirmed.


                                                     BY THE COURT,




                                                       '~CL11L~
                                                     Barbara A. McDermott, J.




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