J-A28008-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

MELVIN ORTIZ

                            Appellant                 No. 3469 EDA 2012


              Appeal from the Judgment of Sentence June 5, 2012
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0002596-2010


BEFORE: GANTMAN, P.J., WECHT, J., and JENKINS, J.

MEMORANDUM BY GANTMAN, P.J.:                       FILED OCTOBER 31, 2014

        Appellant, Melvin Ortiz, appeals from the judgment of sentence

entered in the Philadelphia County Court of Common Pleas, following his jury

trial conviction of third-degree murder and endangering the welfare of a

child (“EWOC”).1 We affirm.

        The trial court opinion set forth the relevant facts and procedural

history of this case as follows.

           Charles Brennan, Philadelphia firefighter and EMT, testified
           that on October 9, 2009, at approximately 5:16 P.M., he
           went to 6738 Kindred Street in Philadelphia in response to
           an emergency call. When [Brennan] got to that location,
           he went to the door of the house and saw [Appellant]
           holding a baby in his arms. Also, inside the house was a
           [2-3 year old] child. [Appellant] told [Brennan] the baby
____________________________________________


1
    18 Pa.C.S.A. §§ 2502(c) and 4304(a)(1) respectively.
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       was not breathing.       [Appellant] told [Brennan] that
       [Appellant] was an EMT.        [Appellant] gave one (1)
       [rescue] breath into the baby’s mouth and then placed the
       baby into Brennan’s arms. Brennan placed the baby on
       the couch, and checked the baby’s vital signs. He could
       not find a pulse, and the baby was not breathing. He saw
       slight bruising on the baby’s body below her left clavicle.
       Brennan performed CPR on the baby. [Appellant] told him
       that the baby fell in the playpen and that the baby had
       sustained her injuries a few minutes before Brennan
       arrived. Brennan saw a playpen standing upright that did
       not appear to have been disturbed. Paramedics arrived on
       the scene and transported the baby to St. Christopher’s
       Hospital for Children.

       At 8:15 P.M., on the day of the incident, [EMT] Brennan
       prepared a handwritten statement. In that statement, and
       in a subsequent interview on October 14, 2009, with a
       detective from the Special Victims Unit, Brennan indicated
       that [Appellant] said to him when he arrived at the scene,
       that the baby did not have a pulse and the baby had fallen
       into the playpen a few minutes before Brennan arrived.

       Paramedic Alan Elhyani testified that he is employed by
       the Fire Department of the City of Philadelphia.      On
       October 9, 2009, at approximately 5:16 P.M. he was
       notified that his services were required at 6738 Kindred
       Street. He arrived on the scene in an ambulance and saw
       two (2) firemen performing CPR and breathing for a baby
       lying on the couch inside the house. He picked up the
       baby, ran out and placed the baby in the ambulance. The
       baby was transported to St. Christopher’s Hospital for
       Children.

       [Paramedic] Elhyani testified that he observed bruising on
       the baby’s left forearm, left shoulder, and redness or
       bruising on the back of the baby’s head. He reported
       these observations to the hospital staff.

       Charles Tuttle, a fire service paramedic, employed by the
       City of Philadelphia, testified that he was dispatched to the
       location of 6738 Kindred Street on October 9, 2009. On
       October 14, 2009, he gave a statement to Special Victims
       Detective Collins indicating that he saw bruising on the

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       chest, forearm, neck, and head of the baby and that the
       injuries appeared to be in different stages of healing.

       The defense called Yessina Ortiz, [Appellant’s] daughter.
       She testified that she received a call from [Appellant] at
       approximately 5:00 P.M. on the day of the incident. She
       could hear [Appellant] in the background saying [the baby]
       is not breathing. She could tell he was not speaking into
       the phone but was off to the side. She hung up and called
       911.

       [Appellant] testified that between 4:00 P.M. and 5:00
       P.M., on the day of the incident, he was downstairs with
       the [baby] and [2-3 year old]. The [baby] was sleeping in
       her [playpen]. He was watching TV with [the 2-3 year
       old]. [Appellant] walked into the kitchen to make the
       [baby] a bottle. After making the bottle, he came around
       the corner and saw [the 2-3 year old] with his feet on the
       bottom rail and his hands on the top rail of the [playpen]
       causing the [playpen] to tip over. When he got to the
       [baby], the [playpen] had tipped over and he saw the side
       of the [baby’s] head hit the rail of a child’s rocking chair
       then hit the hardwood floor. He grabbed the [baby] from
       the floor under her arms, and shook her lightly twice.
       When she did not respond, he put her on a table and
       checked her pulse.      She did not have a pulse.        He
       performed some compressions and some breaths on the
       [baby], after which her pulse came back. He hit redial on
       his phone because he knew that [the 2-3 year old] had
       talked to [Appellant’s] daughter earlier. [Appellant] told
       his daughter to call 911 because he did not have time to
       explain the situation to the 911 operator and did not want
       to stop breathing for the [baby]. An EMT knocked on the
       door. He walked to the door holding the [baby] in his
       arms and handed the [baby] over to the EMT after giving
       the [baby] one last rescue breath.

       Dr. Marlon Osbourne, an assistant medical examiner for
       the City of Philadelphia Medical Examiner’s Office, testified
       that he performed the autopsy on the baby…and prepared
       an autopsy report.      He testified that the [baby] was
       pronounced dead on October 14, 2009, at the age of two
       (2) months and five (5) days.


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       Dr. Osbourne testified that he found bruises on the inside
       of the [baby’s] right arm; the inside of her wrist; the lower
       part of her left side; and, on the lower part of her
       abdomen on the left side. There was bruising underneath
       the skin on the scalp and a t-shaped fracture on the right
       side of her head. There was a hemorrhage along the
       muscles and the nerves and veins of each of her armpits.
       He noted a hemorrhage to the small piece of tissue that
       connects the side of the lip to the upper gum. Fractures
       were also discovered at the ends of both femurs and tibias.
       In his opinion, all of the injuries indicated trauma.

       Dr. Osbourne opined to the ADA’s hypothetical as to
       whether the injuries sustained by the [baby] were
       consistent with an infant falling out of a playpen and onto
       a small child’s chair as not consistent with the fractures
       that were present in the [baby] and that the injuries were
       consistent with inflicted head trauma. In his opinion,
       based on all the injuries to the [baby’s] head, brainstem
       and upper spinal cord, it was his opinion that the cause of
       death was craniocerebral trauma and that the manner of
       death was homicide.

       Dr. Lucy Rorke-Adams, senior neuropathologist at
       Children’s Hospital and a consultant in forensic pediatric
       neuropathology for the Medical Examiner’s Office, testified
       that she was asked to perform an evaluation on tissue
       samples of the [baby’s] brain, spinal cord, eyes and
       coverings of the brain of the [baby].

       Dr. Rorke-Adams testified that there were blood clots on
       both sides of the brain, severe swelling of the brain and a
       hemorrhage on the right side and on the underside of the
       brain. The parts of the brain that connect to the spinal
       cord were tenuously attached and there was damage to
       the optic nerves of both eyes. She opined that these types
       of injuries were consistent with shaken baby syndrome or
       abusive head trauma which is the infliction of force by
       shaking the baby vigorously, or hitting the baby or
       slamming the baby into an object. She opined that a short
       fall of one (1) to three (3) feet into or out of the playpen
       would not have generated enough force to cause the
       injuries. She found to a reasonable degree of medical


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       certainty that the injuries sustained by the [baby] were
       consistent with child abuse.

       Dr. Mary McColgan, director of the Child Protection
       Program at St. Christopher’s Hospital for Children, testified
       that she saw the [baby] on October 9, 2009, at 9:00 P.M.
       The [baby] was unresponsive and had a hematoma on her
       right ear and behind her right ear.        She had retinal
       hemorrhages to the back and inside of her eyes. She had
       a tear to the frenulum of her lower lip and a healing
       laceration inside her right lower cheek, at the jaw line.
       She had [areas] of blotchy redness on her chest and a
       circular bruise on her left wrist. She had a brown bruise
       on her right upper chest and a greenish/brown healing
       bruise on her right upper forehead. She had multiple
       purple lesions on her right neck. Dr. McColgan reviewed
       CAT scans taken of the [baby’s] head, spine and abdomen.
       The CAT scan of the [baby’s] head showed widespread
       swelling and edema of the brain, a subdural hemorrhage
       on the right parietal portion and the space between the
       two hemispheres of the brain and an overlying blood
       collection over the scalp. There was a skull fracture of the
       right parietal head.       An ophthalmology examination
       showed bleeding in multiple layers of the retina of the
       eyes. X-Rays of the [baby’s] bones showed fractures in
       both legs of the femur (the longest bone in the upper leg)
       and of the upper end of the tibias, (the bones of the lower
       leg). Dr. McColgan testified further that the fractures to
       the [baby’s] leg bones indicated that a significant amount
       of force was used and such fractures are commonly seen in
       shaking injuries.

       Dr. McColgan testified that the allegation that the [baby’s]
       injuries were caused by a fall from a playpen was
       inconsistent with her injuries. She opined that falls of
       three (3) to six (6) feet rarely, if ever, lead to life
       threatening injuries as were seen in the [baby’s] case.
       She concluded that to a reasonable degree of medical
       certainty that the injuries were a result of inflicted trauma.

       The defense called Dr. Supriya Kuruvilla, the Director of
       Autopsy and Forensic Services of the Reading Hospital and
       Medical Center in Reading, Pennsylvania, as an expert in
       forensic pathology and pediatric pathology. She testified

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         that she reviewed police reports, medical records, witness
         statements and pathology slides in connection with the
         death of [baby]. She agreed with certain aspects and
         disagreed with other aspects of Dr. Osbourne’s
         assessment. She agreed with the cause of death, which
         was craniocerebral trauma but disagreed that shaking the
         [baby] was part of the causation of the injuries. She
         opined that the injuries were from a fall that involved at
         least two (2) points of impact to the head, the rocker and
         the hardwood floor. She opined that the [baby] sustained
         a lateral flexion of the neck as a result of a fall, thereby
         causing the injuries.     She, therefore agreed with Dr.
         Osbourne’s cause of death, but would have called the
         manner of death accidental or undetermined.

(Trial Court Opinion, filed November 19, 2013, at 2-7) (internal citations to

record omitted).

      Police arrested Appellant on December 29, 2009, and charged him

with third-degree murder, involuntary manslaughter, and EWOC.             On

February 13, 2012, a jury convicted Appellant of third-degree murder and

EWOC. On June 5, 2012, the court sentenced Appellant to twelve (12) to

twenty-four (24) years’ imprisonment and ten (10) years’ probation.

Appellant filed a post-sentence motion on June 15, 2012, which claimed the

verdict was against the weight of the evidence.     On November 12, 2012,

Appellant’s post-sentence motion was denied by operation of law. Appellant

timely filed a notice of appeal on December 7, 2012. On June 6, 2013, the

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

on appeal pursuant to Pa.R.A.P. 1925(b).      Appellant timely filed his Rule

1925(b) statement on October 4, 2013, after the court granted Appellant

four extensions of time to file his Rule 1925(b) statement.

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      Appellant raises the following issue for our review:

         WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN
         FAILING TO GRANT [APPELLANT’S] POST-SENTENCE
         MOTION FOR A NEW TRIAL ON THE GROUNDS THAT THE
         VERDICTS WERE AGAINST THE WEIGHT OF THE EVIDENCE
         AS TO THE CHARGES OF MURDER IN THE THIRD-DEGREE
         AND ENDANGERING THE WELFARE OF A CHILD?

(Appellant’s Brief at 2).

      Our well-settled standard of review regarding the weight of the

evidence is:

            The weight of the evidence is exclusively for the
            finder of fact who is free to believe all, part, or none
            of the evidence and to determine the credibility of
            the witnesses. An appellate court cannot substitute
            its judgment for that of the finder of fact. Thus, we
            may only reverse the…verdict if it is so contrary to
            the evidence as to shock one’s sense of justice.

         Commonwealth v. Small, 559 Pa. 423, [435,] 741 A.2d
         666, 672-73 (1999). Moreover, where the trial court has
         ruled on the weight claim below, an appellate court’s role
         is not to consider the underlying question of whether the
         verdict is against the weight of the evidence. Rather,
         appellate review is limited to whether the trial court
         palpably abused its discretion in ruling on the weight
         claim.

Commonwealth v. Champney, 574 Pa. 435, 444, 832 A.2d 403, 408

(2003), cert. denied, 542 U.S. 939, 124 S.Ct. 2906, 159 L.Ed.2d 816 (2004)

(most internal citations omitted). “The trial judge may not grant relief based

merely on some conflict in testimony or because the judge would reach a

different conclusion on the same facts.” Commonwealth v. Sanchez, 614

Pa. 1, 27, 36 A.3d 24, 39 (2011).


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      Appellant argues his expert’s testimony substantially contradicted the

Commonwealth’s expert evidence that the baby’s death was a homicide.

Appellant asserts his expert’s medical testimony concluded the baby’s death

was an “accident or undetermined.”          Appellant contends the trial court

ignored this testimony when it denied Appellant’s post-sentence motion for a

new trial.   Appellant concludes this Court should vacate his judgment of

sentence and grant him a new trial because the verdict was against the

weight of the evidence. We disagree.

      Instantly, the trial court stated:

         A trial court’s denial of a motion for a new trial based on a
         claim that the verdict was against the weight of the
         evidence will not be disturbed unless the trial court abused
         its discretion in denying such a motion. A new trial can
         only be granted on a claim that the verdict was against the
         weight of the evidence in the extraordinary situation where
         the jury’s verdict is so contrary to the evidence that it
         shocks one’s sense of justice and the award of a new trial
         is imperative so that right may be given another
         opportunity to prevail.

         Applying the standard to this case, the trial court did not
         abuse its discretion in denying [Appellant’s] motion for a
         new trial as the jury’s verdict did not shock the court’s
         sense of justice.

         Therefore, this claim is without merit.

(Trial Court Opinion at 11) (internal citation omitted). We agree. Here, the

jury as finder of fact was free to believe all, part or none of the expert

medical testimony presented by either party and to determine the

appropriate weight accorded each medical expert’s opinion.        See Small,


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supra. The jury credited the Commonwealth’s expert testimony and version

of events which led to the baby’s death.      The mere fact that the parties’

experts disagreed on the cause of death is not alone grounds for a new trial.

See Sanchez, supra.       The Commonwealth’s evidence fully supported the

jury’s verdict, regardless of what Appellant’s medical expert opined; thus,

the verdict was not so contrary as to shock the trial court’s sense of justice.

See Champney,supra.          Therefore, the trial court did not abuse its

discretion when it denied Appellant’s post-sentence motion for a new trial

based on a challenge to the weight of the evidence. See id. Accordingly,

we affirm Appellant’s judgment of sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/31/2014




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