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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.                             :
                                               :
                                               :
    N. T.                                      :
                                               :
                       Appellant               :   No. 1330 WDA 2018

         Appeal from the Judgment of Sentence Entered August 1, 2018
    In the Court of Common Pleas of Erie County Criminal Division at No(s):
                           CP-25-CR-0002886-2016


BEFORE:      LAZARUS, J., MURRAY, J., and COLINS, J.*

MEMORANDUM BY LAZARUS, J.:                         FILED SEPTEMBER 27, 2019

        N.T. appeals from the judgment of sentence, entered in the Court of

Common Pleas of Erie County, after a jury convicted him of aggravated

assault1 and endangering the welfare of a child (“EWOC”).2             Upon careful

review, we affirm.

        The trial court set forth the facts of this case as follows:

        [N.T.] is the biological father of two children, a daughter named
        [L.T.], who was fifteen months old at the time, and [D.T.], the
        victim, who was a five -month old infant. These two children lived
        with their mother, [A.Z.].

____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1  18 Pa.C.S.A. § 2702(a)(9). While the criminal information in this case
charged N.T. under subsection (a)(1) of the aggravated assault statute, the
trial court instructed the jury with the elements of subsection (a)(9). Neither
N.T. nor the Commonwealth objected.

2   18 Pa.C.S.A. § 4304(a)(1).
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     [N.T.] was known to have a vicious temper and would throw heavy
     objects around the house, including breaking a microwave with a
     heavy chair. [N.T.] cracked a door with his punches. He damaged
     walls in the apartment.

     On February 20, 2016, [N.T.] spent the night at [A.Z.]’s home.
     [N.T.] slept on a futon mattress on the floor in the living room.
     [D.T.] slept in [A.Z.]’s bedroom and [L.T.] slept in her crib. [N.T.]
     was up most of the night and did not fall asleep until five or six
     o'clock in the morning. [N.T.] was asleep on the futon mattress
     when the children awoke. [D.T.] woke first and [A.Z.] fed him a
     bottle of formula. [D.T.] was a fussy, colicky baby who required
     a lot of attention. Then [L.T.] woke up and [A.Z.] changed her
     diaper and fed her. She then took the children to the living room,
     put [D.T.] in his swing next to the mattress where [N.T.] was
     sleeping, gave the infant a binky, and laid down on the mattress
     to watch a movie with the children and attend to any fussiness.

     At some point, [A.Z.] made the decision to go to the Dollar
     General store, about a block from her home, to get some eggs
     and other groceries. She told [N.T.] she was going to get dressed
     and get groceries at the Dollar General. [N.T.] did not want her
     to go or use his car. However, [A.Z.] insisted they needed
     groceries. When she left, [N.T.] told her he wanted candy. She
     left the children in [N.T.]’s care. He was the only adult in the
     home. [N.T.] knowingly assumed the care of his two young
     children, both of whom were in diapers and completely dependent
     upon him.

     [A.Z.] was gone about twenty minutes. Video surveillance from
     the Dollar General store shows [A.Z.] entering the store at 12:28
     p.m. and leaving the store at 12:44 p.m. [N.T.]’s phone indicated
     he tried to call [A.Z.] at the Dollar General store at about 12:30
     p.m. When [A.Z.] returned to her home, [N.T.] came out to the
     car and told her she needed to come inside. [N.T.] told [A.Z.]
     that [D.T.] was acting weird. When [A.Z.] checked on the baby,
     he was slanted in his seat and his breathing was wrong. When
     [A.Z.] picked him up, the baby’s head fell back and [A.Z.] realized
     something was very wrong. [A.Z.] told [N.T.] to call 9-1-1. He
     told her couldn’t do it, so [A.Z.] called 9-1-1 at 12:50 p.m.

     The ambulance arrived and transported [D.T.] to UPMC Hamot
     Medical Center. [D.T.] was then transferred to Children’s Hospital
     of Pittsburgh. [N.T.] and [A.Z.] both acknowledged [D.T.] was
     fine when [A.Z.] left to go to the store.


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      [N.T.] did not admit to hurting the child but suggested [L.T.] had
      hit [D.T.] with a sippy cup or perhaps [D.T.] had slipped out of his
      boppy chair.

Trial Court Opinion, 12/20/18, at 3-5 (citations to record omitted).

      The parties stipulated that D.T. suffered a skull fracture, extensive acute

subdural hemorrhages, bilateral subarachnoid hemorrhages, cerebral edema,

bilateral multilayered retinal hemorrhages, and retinoschisis in his eyes. N.T.

Trial, 6/19/18, at 108. They further stipulated that these injuries were the

result of “child physical abuse, abusive head trauma from an impact as well

as a violent shaking,” id. at 108-09, and that D.T. would have been

symptomatic immediately upon sustaining his injuries. Id. at 109.

      A jury convicted N.T. of the above charges on June 20, 2018 and, on

August 1, 2018, the court sentenced him to 66 to 132 months’ incarceration

for aggravated assault and a consecutive term of 9 to 18 months’ incarceration

for EWOC. N.T.’s post-sentence motions were denied and, on September 13,

2018, he filed a timely notice of appeal to this Court. Both N.T. and the trial

court complied with Pa.R.A.P. 1925. N.T. raises the following claims for our

review.

      1.    Did the Commonwealth present insufficient evidence to
      establish, beyond a reasonable doubt, that [N.T.] committed the
      offenses of aggravated assault and endangering the welfare of a
      child, where the evidence required the jury to engage in
      speculation and conjecture to identify [N.T.] as the perpetrator?

      2. Did the trial court commit an abuse of discretion and/or error
      of law when it obliged the jury’s request to hear, during the
      deliberations, the 911 call [placed] by the child’s mother for a third
      time[,] as it placed undue emphasis on the Commonwealth’s
      exhibit, thereby prejudicing [N.T.]?

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Brief of Appellant, at 8.

      N.T. first challenges the sufficiency of the evidence supporting his

convictions. Specifically, N.T. asserts that the evidence adduced at trial does

not prove, beyond a reasonable doubt, that he was the perpetrator of the

crimes committed against D.T.          Rather, N.T. claims that, based on the

evidence presented, the jury could just as easily have inferred that A.Z.

injured D.T. N.T. cites testimony that A.Z. found parenting to be “stressful

and overwhelming” and that she, like N.T., had a temper. Brief of Appellant,

at 30, 31. N.T. cites further testimony in which A.Z.’s neighbor stated that

she once heard A.Z. pounding on the walls and yelling about wanting to kill

herself. The neighbor ultimately found A.Z. on the floor of her apartment,

hunched over L.T., who was then two months old.            Id. at 31; N.T. Trial,

6/19/18, at 181-82.         N.T. asserts that A.Z. “offered a myriad of potential

explanations” for D.T.’s injuries, including possible roughhousing with L.T.,

and that A.Z. “consistently advanced [the theory] that [N.T.] could not have

injured the child and was a loving father.” Brief of Appellant, at 33. N.T. is

entitled to no relief.

      Our standard for evaluating sufficiency of the evidence is as follows:

      “[W]hether the evidence, viewed in the light most favorable to the
      Commonwealth [as verdict winner], is sufficient to enable a
      reasonable jury to find every element of the crime beyond a
      reasonable doubt.” Commonwealth v. Watkins, [] 843 A.2d
      1203, 1211 ([Pa.] 2003) (citing Commonwealth v. Crews, []
      260 A.2d 771, 771–72 ([Pa.] 1970)). “[T]he entire trial record
      must be evaluated and all evidence actually received must be
      considered, whether or not the trial court’s rulings thereon were
      correct.” Commonwealth v. Harper, [] 403 A.2d 536, 538–39

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      ([Pa.] 1979). Moreover, “[t]he Commonwealth may sustain its
      burden of proving every element of the crime beyond a reasonable
      doubt by means of wholly circumstantial evidence.” Id. at 538.
      “Finally, the trier of fact, while passing upon the credibility of
      witnesses and the weight to be afforded the evidence produced,
      is free to believe all, part or none of the evidence.” Id. at 539.

Commonwealth v. Bryant, 57 A.3d 191, 197 (Pa. Super. 2012). The facts

and circumstances established by the Commonwealth “need not be absolutely

incompatible with defendant’s innocence, but the question of any doubt is for

the jury unless the evidence ‘be so weak and inconclusive that as a matter of

law no probability of fact can be drawn from the combined circumstances.’”

Commonwealth v. Butcher, 644 A.2d 174, 175 (Pa. Super. 1994) (citation

omitted).

      N.T. was convicted of aggravated assault under 18 Pa.C.S.A. §

2702(a)(9). Under that subsection, a person is guilty of aggravated assault if

he is over the age of 18 and “attempts to cause or intentionally, knowingly or

recklessly causes serious bodily injury to a child less than 13[.]” The Crimes

Code defines “serious bodily injury” as “[b]odily injury which creates a

substantial risk of death or which causes serious, permanent disfigurement,

or protracted loss or impairment of the function of any bodily member or

organ.” 18 Pa.C.S.A. § 2301.

      N.T. was also convicted of EWOC. A person who is the parent of a child

under 18 years of age commits this offense where he “knowingly endangers

the welfare of the child by violating a duty of care, protection or support.” 18

Pa.C.S.A. § 4304(a)(1). Our courts have established a three-part test that

must be satisfied to prove EWOC: (1) The accused was aware of his/her duty

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to protect the child; (2) the accused was aware that the child was in

circumstances that could threaten the child’s physical or psychological

welfare; and (3) the accused either failed to act or took action so lame or

meager that such actions cannot reasonably be expected to protect the child’s

welfare. Commonwealth v. Bryant, 57 A.3d 191, 197 (Pa. Super. 2012).

      Here, A.Z. testified that she informed N.T. that she was going to the

dollar store and that he knew he would be alone with and responsible for the

children. She testified that D.T. was not injured when she left to go to the

store. See N.T. Trial, 6/19/18, at 52 (“Q: And your testimony was, [D.T.]

was in that seat, had his pacifier, nothing wrong? A: Yeah.”). See also id.

at 114 (testimony of Dr. Rachel Berger, director of Children’s Advocacy Center

of Pittsburgh, stating that “both [parents] agreed that [D.T.] was well when

[A.Z.] left for the store”). Dollar store video corroborates the timeline given

by A.Z. for her absence from the residence. During the time A.Z. was out,

N.T. was the only adult present in the home.

      When A.Z. returned from the store, N.T. came outside to greet her and

told her he needed to talk to her and that something was wrong with D.T.

A.Z. immediately realized that “something was off with [D.T.]” Id. at 42. A.Z.

screamed at N.T. to call 911, but N.T. told her he could not make the call and

handed her the phone. When A.Z. asked N.T. what had happened, N.T. stated

that “[h]e went over to [D.T.] to tickle his feet to wake him up and he was in

that state.” Id. at 46. A.Z. testified that she initially believed N.T. because

“[she] wanted to believe him. [She] wanted to believe he was telling [her]

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the truth.” Id. at 47. She testified that she did not want to get N.T. in trouble

and was “terrified to believe that [she] could have left [her] children [with]

someone who could have done something so terrible.” Id. at 47-48.               The

parties stipulated to D.T.’s injuries and to the fact that he would have been

immediately symptomatic upon sustaining them.

      It was within the province of the jury to pass upon the credibility of the

witnesses, and the jury was free to believe all, some, or none of the evidence.

Bryant, supra.      Based on the foregoing, the jury could have concluded,

beyond a reasonable doubt, that: D.T. sustained his injuries during the time

that A.Z. was absent from the apartment; D.T.’s severe injuries could only

have been inflicted by an adult; and N.T., as the only adult present at the

time, was the perpetrator of the abuse that caused the injuries. Accordingly,

N.T. is entitled to no relief on his sufficiency claim.

      Finally, N.T. claims that the trial court erred in allowing the jury to listen

to the 911 tape during deliberations. N.T. asserts that permitting the jury to

possess the tape caused it to place undue emphasis on the content of the

tape, as well as A.Z.’s demeanor during the call, and to inflame the passions

of the jurors. This claim is meritless.

      Pennsylvania Rule of Criminal Procedure 646 governs the materials that

may be in the possession of the jury during its deliberations. Upon retiring,

the jury may take with it such exhibits as the trial judge deems proper, except

the following:

      (1) a transcript of any trial testimony;

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      (2) a copy of any written or otherwise recorded confession by the
      defendant;

      (3) a copy of the information or indictment; and

      (4) except as provided in paragraph (B), written jury instructions.

Pa.R.Crim.P. 646(C).

      The decision as to which exhibits may be taken out with the jury is within

the sound discretion of the trial court and will not be reversed absent an abuse

of that discretion.   Commonwealth v. Hawkins, 701 A.2d 492, 512 (Pa.

1997). “Our courts have rarely found that materials given to juries during

deliberations constitute reversible error.      In the cases that have found

reversible error, however, the prejudicial effect of the evidence in question

was severe and readily apparent.” Commonwealth v. Barnett, 50 A.3d 176,

194 (Pa. Super. 2012), discussing Commonwealth v. Bricker, 581 A.2d 147

(Pa. 1990) (finding violation of right to fair trial where court sent out with jury

written plea agreements made by two key Commonwealth witnesses, as

documents impermissibly bolstered the credibility of the witnesses) and

Commonwealth v. Dennison, 385 A.2d 1021 (Pa. Super. 1978) (trial court

committed prejudicial error in permitting jury to have possession of love note

written by defendant accused of failing to support bastard child because it was

functional equivalent of confession, which is specifically prohibited).

      Here, N.T. cannot demonstrate that the trial court abused its discretion

in permitting the 911 tape to go out with the jury. First, N.T. did not object

when the 911 recording was initially admitted into evidence. Second, the jury



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specifically requested to hear the recording during deliberations. Both of these

circumstances have been previously found to be factors tending to militate

against a finding of prejudice. Barnett, supra, citing Commonwealth v.

Gallagher, 510 A.2d 735 (Pa. Super. 1986), rev'd on other grounds, 547 A.2d

355 (Pa. 1988) (jury given two mug shots of the defendant that had been

admitted into evidence without objection) and Commonwealth v. Sparks,

505 A.2d 1002, 1006 (Pa. Super. 1986) (in prosecution for rape and

aggravated assault, photographs taken of victim shortly after incident

permitted to go out with jury, where the “court was careful to release only

those photographs necessary to aid the jury in its deliberations. Moreover,

the photographs which were released were relevant, admitted into evidence,

and requested by the jury.”). Finally, a portion of defense counsel’s closing

argument focused on the 911 tape.        Specifically, counsel compared A.Z.’s

demeanor on the stand to that reflected in the 911 call, suggesting that A.Z.

was capable of pretending to cry when it suited her purposes. See N.T. Trial,

6/20/18, at 13 (“She comes back. She calls 9-1-1. You heard the 9-1-1 call

and you saw her on the stand. She can cry when she wants to. She can stop

pretty quickly. The 9-1-1 call, a little bazaar [sic].”). In light of counsel’s

emphasis on the 911 call, it was reasonable for the jury to want to hear it

again during its deliberations, and we can discern no abuse of discretion on

the part of the trial court in granting the jury’s request.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/27/2019




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