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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    KRISTEN M. SPAULDING                       :
                                               :
                       Appellant               :   No. 1286 MDA 2019

          Appeal from the Judgment of Sentence Entered July 16, 2019
       In the Court of Common Pleas of Tioga County Criminal Division at
                        No(s): CP-59-CR-0000106-2018


BEFORE: SHOGAN, J., KUNSELMAN, J., and MUSMANNO, J.

MEMORANDUM BY SHOGAN, J.:                                FILED APRIL 07, 2020

       Appellant, Kristen M. Spaulding, appeals from the July 16, 2019

judgment of sentence following her conviction by a jury of one count each of

aggravated assault of a child less than six years old and endangering the

welfare of a child.1 We affirm.

       The facts of the case are as follows: Dr. Elizabeth Murray, a pediatrician

at Golisano Children’s Hospital in Rochester, New York, testified as an expert

in Pediatric Emergency Medicine. N.T., 4/22/19, at 87. Dr. Murray was the

on-call physician at the hospital for the REACH Program2 in December of 2017,

when she consulted and examined N.S., Appellant’s two-year-old daughter


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1   18 Pa.C.S. §§ 2702(a)(8) and 4304(a)(1), respectively.

2   Referral for Evaluation of Abused Children.
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(“Victim”).   Dr. Murray testified that Victim initially was injured on

December 27, 2017, was taken to Corning Hospital on December 28, 2017,

and was transferred to Golisano Children’s Hospital due to the severity of her

injuries. Dr. Murray testified:

             The initial team that evaluated her was very concerned that,
      in fact, [Victim] had suffered significant burns; second-degree or
      potentially third-degree burns, so they asked the burn surgeons
      to evaluate her immediately, and she was transferred to the
      pediatric I.C.U., the Intensive Care Unit, because of the level of
      care that she needed.

                                    * * *

            She had burns to almost forty percent of her body. Again,
      they were mainly second, but then some third-degree burns, so
      very severe burns causing the blistering and the sloughing of the
      skin. Some were—some were so severe that she went on to
      require having skin graphing [sic] done.

N.T., 4/22/19, at 92–93.

      Dr. Murray testified that Appellant denied that Victim sustained any

injury, stating only that she gave Victim and Victim’s two siblings a bath the

night before, and that Victim had fallen and hit her head the week prior. N.T.,

4/22/19, at 90, 103–104. Dr. Murray stated that myriad specialists—from

pediatric infectious disease, dermatology, plastic surgery, and the burn

team—all consulted on this case and “all of us, together, independently, came

to the same conclusion that these wounds appear[ed] to be from a thermal




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burn.3 Id. at 101–102, 105. Dr. Murray testified that within a reasonable

degree of medical certainty, “the injuries [were] thermal burns.” Id. at 106.

       Appellant was charged with aggravated assault of a child less than six

years old, simple assault, endangering the welfare of a child, and recklessly

endangering another person.           A jury trial occurred on April 22–23, 2019.

During trial, the trial court entered an order on April 23, 2019, dismissing the

charges of simple assault and recklessly endangering another person. Order,

4/23/19. The jury found Appellant guilty, as described supra. The trial court

sentenced Appellant on July 16, 2019, to fourteen to sixty months of

imprisonment for aggravated assault and a concurrent term of imprisonment

of fourteen to sixty months for endangering the welfare of a child.         N.T.,

7/16/19, at 5. Appellant filed a notice of appeal on August 5, 2019. Both

Appellant and the trial court complied with Pa.R.A.P. 1925.

       Appellant raises the following issues on appeal:

       I. WHETHER THE EVIDENCE WAS INSUFFICIENT TO SUSTAIN
       MS. SPAULDING’S CONVICTION OF AGGRAVATED ASSAULT AND
       ENDANGERING THE WELFARE OF CHILDREN BECAUSE THE
       REQUISITE MENS REA WAS NOT PROVEN BEYOND A
       REASONABLE DOUBT?

       II. WHETHER A NEW TRIAL SHOULD BE GRANTED BECAUSE
       MS. SPAULDING WAS DENIED HER RIGHT TO A FAIR TRIAL AFTER
       THE PROSECUTOR’S HIGHLY INFLAMMATORY AND PREJUDICIAL
       CLOSING ARGUMENT WHERE, AMONG OTHER THINGS, INVOKED


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3  Dr. Murray defined thermal burn as “[h]eat, excessive heat. Usually . . .
excessive heat in the form of a liquid or a contact with a very hot object. What
a layperson would just call a burn.” N.T., 4/22/19, at 102.

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      SYMPATHY FOR THE MINOR VICTIM AND COMMENTED ON
      MS. SPAULDING’S RIGHT TO REMAIN SILENT OR TESTIFY?

      III. WHETHER A NEW TRIAL SHOULD BE GRANTED WHERE, EVEN
      AFTER TRIAL COUNSEL’S INSISTENCE, THE TRIAL COURT FAILED
      TO RULE ON MS. SPAULDING’S TIMELY REQUEST FOR A MISTRIAL
      AFTER THE PROSECUTOR’S PREJUDICIAL CLOSING ARGUMENT?

      IV. WHETHER A NEW TRIAL SHOULD BE GRANTED WHERE THE
      TRIAL COURT PERMITTED THE FOSTER PARENT TO TESTIFY
      REGARDING THE VICTIM’S INJURIES, TRAUMA AND MEDICAL
      TREATMENT, WHERE SUCH TESTIMONY WAS CUMULATIVE,
      PREJUDICIAL AND WENT BEYOND ORDINARY LAY WITNESS
      TESTIMONY?

Appellant’s Brief at 4 (verbatim).

      Appellant’s first issue assails the sufficiency of the evidence.   Our

standard of review when considering a challenge to the sufficiency of the

evidence is well settled:

                  A claim challenging the sufficiency of the
            evidence presents a question of law.         We must
            determine “whether the evidence is sufficient to prove
            every element of the crime beyond a reasonable
            doubt.” We “must view evidence in the light most
            favorable to the Commonwealth as the verdict winner,
            and accept as true all evidence and all reasonable
            inferences therefrom upon which, if believed, the fact
            finder properly could have based its verdict.”

                  Our Supreme Court has instructed: The facts
            and circumstances established by the Commonwealth
            need not preclude every possibility of innocence. Any
            doubts regarding [an appellant]’s guilt may be
            resolved by the fact-finder unless the evidence is so
            weak and inconclusive that as a matter of law no
            probability of fact may be drawn from the combined
            circumstances. Moreover, in applying the above test,
            the entire record must be evaluated and all evidence
            actually received must be considered. Finally, the
            trier of fact while passing upon the credibility of

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              witnesses and the weight of the evidence produced, is
              free to believe all, part or none of the evidence.

              In addition, “the Commonwealth may sustain its burden by
        means of wholly circumstantial evidence, and we must evaluate
        the entire trial record and consider all evidence received against
        the [Appellant].”

Commonwealth v. Green, 203 A.3d 250, 253 (Pa. Super. 2019) (en banc),

appeal denied, 216 A.3d 1036, 54 WAL 2019 (Pa. filed July 30, 2019). Specific

intent—the only element at issue here—“may be proven by direct or

circumstantial evidence.” Commonwealth v. Hall, 830 A.2d 537, 542 (Pa.

2003).

        Appellant asserts that the Commonwealth’s theory that Appellant “drew

the bath for her daughter, placed her into the water, where she suffered

substantial burns and pain as a result[,] and failed to seek prompt medical

care” is not sustained by the record. Appellant’s Brief at 10. In essence,

Appellant’s argument is that there was no evidence that she “purposely

placed her child in scalding bathwater,” as evidenced by the fact that she gave

her other children, ages one and five, a bath without incident.       Id.; N.T.,

4/22/19, at 22 (emphasis added). Indeed, Appellant avers that there was no

evidence that she “knew or appreciated the temperature of the bath water.”

Appellant’s Brief at 12.

        The record establishes that Appellant gave Victim a bath the evening of

December 27, 2017, and thereafter, “noticed the child’s skin was sloughing

off.”   N.T., 4/22/19, at 90.    Pennsylvania State Trooper Terry Seal, who


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investigated this case, stated that Appellant gave Victim a bath between 4:00

and 7:00 p.m. on December 27, 2017. There was no other adult present in

the home. Id. at 22. Lauren Seip, the grandmother of Appellant’s one-year-

old son, gave Trooper Seal her telephone to share text messages and

photographs she had received from Appellant the evening of December 27,

2017.4 The photographs, which were admitted at trial, show Victim dressed

in a diaper with the skin peeling off of her body. Id. at 32. The message

from Appellant to Ms. Seip stated:             “There’s something all over [Victim’s]

body, they’re like jelly bubbles and her skin is peeling.”           Id. at 34.   The

message and the photograph were sent at 7:42 p.m. on December 27, 2017.

Id. A second message from Appellant was a “frontal photograph of [V]ictim

standing with a diaper on while in obvious discomfort with red peeling skin

visible on her stomach and legs; the corresponding text message reads ‘When

Jeff burnt my body on woodstove all the hospital did was ice nothing more.’”

Id. at 35; Affidavit of Probable Cause, 2/21/18, at 1. Thus, with an awareness

that her child was in pain and had skin peeling off of her body, Appellant

neglected to seek medical care.

       Dr. Murray, as well, testified that Ms. Seip showed her the pictures of

Victim with “layers of skin peeling off of her, her arms and legs, and torso.”


____________________________________________


4  The affidavit of probable cause states that Ms. Seip “signed a Waiver of
Rights and Consent to Search Form” before showing Trooper Seal the
messages and photographs on her cellular telephone. Complaint, Affidavit of
Probable Cause, 2/21/18, at 1.

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N.T., 4/22/19, at 92. Dr. Murray explained that Victim was transferred to the

pediatric I.C.U., and the child was sedated “upwards of twenty sedation

procedures” because of the pain associated with cleaning the wounds. Id. at

93, 102. Dr. Murray stated that the areas of damage to Victim’s skin were

“well demarcated, meaning there was a clear stop and start, versus a, kind

of, more subtle transition.” Id. at 94. Dr. Murray described the injury pattern

and how it revealed the nature of the burn:

            So it looks like—if you put it all together, it looks like she
      was in a . . . seated position—you know, with the sparing behind
      the knees, you can see her knees would have been bent and that
      would, kind of, protect that skin, if you will. The same would be
      true with the creases in her groin, with the legs being bent, that
      would protect the skin. And then the areas of her shoulders, and
      actually from her elbows above did not have any burns, so that
      area was not in contact with the hot liquid.

Id. at 104–105. Dr. Murray testified that the burns caused Victim “extreme

pain.” Id. at 109. Additionally, “in the moments after such a scolding [sic]

burn” Victim “would definitely be exhibiting the signs of experiencing extreme

pain.” Id.

      The two cases cited by Appellant in support of her position,

Commonwealth v. Hoffman, 198 A.3d 1112 (Pa. Super. 2018), and

Commonwealth v. Dohner, 441 A.2d 1263 (Pa. Super. 1982), are not

relevant. Appellant’s Brief at 12. They concern whether malice was proven

to support the crime of third-degree murder on one hand, and whether serious

bodily injury occurred on the other. Appellant’s Brief at 12. The trial court

herein concluded, albeit without discussion, that it was “satisfied the evidence

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was more than sufficient to establish [Appellant’s] guilt beyond a reasonable

doubt.” Trial Court 1925 Statement, 9/17/19, at 1. We agree.

      As we stated in Hall, “Where one does not verbalize the reasons for his

actions, we are forced to look to the act itself to glean the intentions of the

actor. Where the intention . . . is obvious from the act itself, the finder of fact

is justified in assigning the intention that is suggested by the conduct.” Hall,

830 A.2d at 542.         The Commonwealth had to prove that Appellant

“attempt[ed] to cause or intentionally, knowingly or recklessly cause[d] bodily

injury to a child less than six years of age, by a person 18 years of age or

older,” 18 Pa.C.S. § 2702(a)(8), and “knowingly endanger[ed] the welfare of

the child by violating a duty of care, protection or support.”         18 Pa.C.S.

§ 4304(a)(1).    The record contains sufficient evidence that Appellant, age

thirty-eight, intentionally, knowingly or recklessly placed Victim, age two, in

scalding water, causing second and third degree burns, and knowingly failed

to seek timely medical care. N.T., 4/22/19, at 21–22. This issue lacks merit.

      Appellant’s second and third issues relate to allegations of prosecutorial

misconduct during closing argument, and we address them together.

Appellant asserts that the Commonwealth invoked sympathy for Victim and

improperly commented on Appellant’s right to remain silent                 by an

inflammatory and prejudicial closing argument, thereby requiring a new trial.

Appellant’s Brief at 13. Appellant also maintains that the trial court failed to

rule on her request for a mistrial. Id. at 20.


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      Appellant highlights the following comments by the Commonwealth in

making her claim that the Commonwealth’s closing argument was prejudicial:

             “There’s been no testimony to the contrary.” Trial Tr. 62,
      April 23, 2019.

            “She’s [sic] still has taken zero responsibility for what
      happened to her own children, when she—when they were under
      her care. Id. at 68.

            “The [Appellant] has had about four hundred and eighty-
      one days, to the best calculation, to tell us what really happened.”
      Id. at 70.

            “[Appellant] never had any emotion.”       Complete denial.”
      Id. at 71–72.

                                     * * *

            “The victim was two-year-old, [sic] defenseless and
      voiceless and she can’t be here to testify.” Id. at 73.

            “So, as I stated in my opening, we are here for her.” Id. at
      73.

            “We are her voice. We are fighting because she can’t be
      here to defend herself; and she couldn’t fight for herself that
      night.” Id. at 74.

            “Now, I’m asking you to be her voice, as well, and be the
      ultimate voice for this defenseless two-year-old.” Id. at 74.

            “[Y]ou will be that ultimate voice for [Victim] and come back
      with an appropriate verdict of guilty.” Id. at 74.

Appellant’s Brief at 16–17.     Appellant argues that the closing argument

created sympathy for Victim and was “a direct commentary on [Appellant’s]

failure to testify.” Appellant’s Brief at 18. Appellant further contends that the




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“trial court’s perfunctory final instructions were inadequate to cure the

prejudice.” Id. at 19.

       “Prosecutorial misconduct does not take place unless the ‘unavoidable

effect of the comments at issue was to prejudice the jurors by forming in their

minds a fixed bias and hostility toward [Appellant], thus impeding their ability

to   weigh     the   evidence      objectively     and   render   a   true   verdict.’”

Commonwealth v. Holley, 945 A.2d 241, 250 (Pa. Super. 2008) (quoting

Commonwealth v. Paddy, 800 A.2d 294, 316 (Pa. 2002)). “In reviewing a

claim of improper prosecutorial comment, our standard of review is whether

the trial court abused its discretion.” Commonwealth v. Noel, 53 A.3d 848,

858 (Pa. Super. 2012). When considering such a contention, “our attention

is focused on whether [Appellant] was deprived of a fair trial, not a perfect

one, because not every inappropriate remark by a prosecutor constitutes

reversible error.” Id. at 858 (citing Commonwealth v. Lewis, 39 A.3d 341,

352 (Pa. Super. 2012)). “A prosecutor’s statements to a jury do not occur in

a vacuum, and we must view them in context.”                  Noel, 53 A.3d at 858

(emphasis added).

       First, we observe that Appellant did not object to any of the above

remarks when they were made.5                  N.T., 4/23/19, at 58–74.         While

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5  Thus, we could find waiver to the present challenges of the statements.
Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived and cannot
be raised for the first time on appeal”); Commonwealth v. Henkel, 938 A.2d



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“interruptions of arguments . . . are matters to be approached cautiously,”

United States v. Young, 470 U.S. 1, 13 (1985), such action would have

prompted the trial court to rule on individual comments or themes of

comments.       Instead, at the conclusion of the Commonwealth’s closing

argument, Appellant’s counsel moved for a mistrial stating that he objected

to   “[r]epeated    statements      that   somehow   [Appellant]   has    to   accept

responsibility.” N.T., 4/23/19, at 74.

       Following Appellant’s motion for mistrial, the trial court made clear it

was going to provide a cautionary instruction to the jury and specifically asked

Appellant for input regarding the instruction. N.T., 4/23/19, at 76. During

the jury charge, after the court instructed on Appellant’s presumption of

innocence, the fact that Appellant had no burden of proof nor requirement to

present any evidence, the trial court entertained a sidebar discussion and

asked for additional objections. Id. at 77, 87. Defense counsel implied he

had no further objections relating to the mistrial motion, id. at 87, and

instead, lodged new, additional objections.          Id. at 88–90.       Importantly,

relating to the mistrial motion, defense counsel stated he “assumed” it was

denied and merely wanted the record clear that he had requested same. Id.

at 88. The trial court resumed its charge to the jury, and at its conclusion,

asked for objections; none were lodged. Id. at 95.


____________________________________________


433 (Pa. Super. 2007) (failure to raise contemporaneous objection to evidence
at trial waives claim on appeal).

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      The record reveals that while it would have been preferable if the trial

court clearly announced its ruling regarding Appellant’s oral motion, the record

also reflects that Appellant understood that the motion for mistrial was denied.

N.T., 4/23/19, at 88. Thus, we reject Appellant’s third issue claiming the trial

court erroneously failed to rule on the mistrial motion.

      We also conclude that the basis asserted by Appellant did not rise to the

level of improper comment, and any perceived impropriety was cured by the

trial court’s instruction.   While the trial court expressed “some concern”

regarding the Commonwealth’s suggestion that Appellant failed to accept

responsibility, it also opined that its instructions to the jury “clearly established

that [it] could not use any failure of [Appellant] to testify or ‘accept

responsibility’ against her in determining guilt or innocence.” Trial Court 1925

Statement, 9/17/19, at 2. The trial court also explained:

      With regard to the issue of an appeal to sympathy, we specifically
      charged the jury that contrary to the Commonwealth’s suggestion
      . . . it was not [its] role to “be the voice of the child” or to establish
      social policy or social justice. We believe this instruction to be
      sufficient to overcome any suggested prejudice in the
      Commonwealth’s statements.

Id.

      Read in the context in which the prosecutor’s statements were made,

we agree with the Commonwealth that rather than referencing Appellant’s

right to remain silent as Appellant suggests, the Commonwealth was merely

pointing out that Appellant told several different stories to several different

people, each of whom testified, about what occurred and her suggestion

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regarding what caused Victim’s injury. Commonwealth’s Brief at 9. Based on

the injuries to Victim and the expert testimony of the treating physician,

Appellant failed to take the necessary steps to provide for and protect her

child.

         We have said that the remedy of a mistrial is an extreme remedy

required “only when an incident is of such a nature that its unavoidable effect

is to deprive the appellant of a fair and impartial tribunal.” Commonwealth

v. Judy, 978 A.2d 1015, 1019 (Pa. Super. 2009).                      Viewing the above

comments, not in isolation, but in the context in which they were made, as

we must, Commonwealth v. Sampson, 900 A.2d 887, 890 (Pa. Super.

2006), we are not persuaded that the trial court abused its discretion, and any

improper      effect   was   cured   by    the     trial   court’s   instruction.   See

Commonwealth v. Harris, 884 A.2d 920, 927 (Pa. Super. 2005) (“[W]hen

a trial court finds that a prosecutor’s comments were inappropriate, they may

be appropriately cured by a cautionary instruction to the jury.”). Therefore,

Appellant has not demonstrated entitlement to a new trial based on the

Commonwealth’s comments. Commonwealth v. Ragland, 991 A.2d 336,

340 (Pa. Super. 2010).

         In her final issue, Appellant asserts that a new trial should be granted

because the trial court erroneously permitted Alyssa Lapp, Victim’s foster

parent, to testify regarding Victim’s “injuries, trauma, and medical treatment.”

Appellant’s Brief at 23. We disagree.


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      This allegation of error challenges the admission of evidence at trial. We

recently reiterated:

      “Questions 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.” Commonwealth
      v. Russell, 938 A.2d 1082, 1091 (Pa. Super. 2007) (citation
      omitted). An abuse of discretion is more than a mere error of
      judgment; rather, an abuse of discretion will be found 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. Busanet, 572 Pa. 535, 817 A.2d 1060, 1076
      (2002) (citation and quotation omitted).

Commonwealth v. Saez, ___ A.3d ___, ___, 2019 PA Super 362, *5 (Pa.

Super. filed December 20, 2019) (quoting Commonwealth v. Pukowsky,

147 A.3d 1229, 1233 (Pa. Super. 2016)).

      In response to this issue, the trial court stated as follows:

      Contrary to [Appellant’s] suggestion the testimony was not
      cumulative of the testimony of the treating physician. Much of the
      testimony involved observations made by the witness. As we
      noted at trial (Transcript Page 12), we were satisfied the jury
      could “use its commonsense to determine the weight it wants to
      give to the testimony of this witness.”         We disagree with
      [Appellant’s] suggestion that it would require an “expert” to make
      observations that the witness herself made of the child’s condition
      while in her care.

Trial Court 1925 Statement, 9/17/19, at 1.

      The record supports the trial court’s conclusion. First, the single case

cited by Appellant, Commonwealth v. Allison, 703 A.2d 16 (Pa. 1997), has

no bearing on the instant issue. Therein, a child’s caretaker testified about

the condition of her seven-year-old niece’s hymen as viewed during a physical

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examination, where the examining physician did not testify. This case is not

relevant. Second, in the instant case, Ms. Lapp testified that Victim came into

her care on January 27, 2018, N.T., 4/23/19, at 9, which was only one month

following Victim’s burn. Ms. Lapp, rather than testifying as an expert, merely

described the care that Victim required and the toddler’s continuing difficulty

dealing with the wound care required for her injuries.      Id. at 10–12.   In

addition, Ms. Lapp described the child’s hesitancy and at times, intolerance,

of taking a bath.   Id. at 13.   This testimony was neither cumulative nor

testimony within the realm of an expert witness. Ms. Lapp merely explained

the day-to-day care required by Victim due to her burns, and the witness

described her personal observations.         The trial court did not abuse its

discretion in permitting Ms. Lapp’s testimony. Accordingly, the issue lacks

merit.

      Judgment of sentence affirmed.

      Judge Kunselman joins this Memorandum.

      Judge Musmanno files a Concurring Statement.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 04/07/2020


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