J-S30003-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT
                                                              OF
                                                         PENNSYLVANIA
                             Appellee

                        v.

    DALISHA DANIKA SALTER,

                             Appellant                  No. 378 WDA 2017


       Appeal from the Judgment of Sentence Entered November 30, 2016
               In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0016990-2014


BEFORE: BENDER, P.J.E., STABILE, J., and STRASSBURGER, J.*

MEMORANDUM BY BENDER, P.J.E.:                         FILED AUGUST 07, 2018

        Appellant, Dalisha Danika Salter, appeals from the judgment of

sentence of an aggregate term of 7½ to 15 years’ imprisonment imposed after

a jury convicted her of aggravated assault and other related offenses. We

affirm.

        The trial court summarized the factual background of this case as

follows:
        During the late evening of September 12, 2014, [Appellant]
        brutally assaulted her infant son [(referred to herein as Victim)],
        who was eleven (11) months old at the time of the assault. After
        she beat [Victim], [Appellant] put him outside in the dark, in a car
        seat, on the back porch of her Wilkinsburg home, next to the
        garbage. [Appellant] then sent text messages to David Bryant,
        the father of the child at approximately 11:30 p.m., which stated
        the following:

____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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        “Beat df out ya son big ass knot bleedn putn him outside u
        want dat piece of shit take em cuz bet ima kill him
        bitch!!!!!!” (11:34[ p.m.])

        “He will be outside bitch” (11:46[ p.m.])

        "On god! Prob die n too idgaf FUCK U AND HIM STG BETTER
        TAKE EM TO DA.” (11:48[ p.m.])

     David Bryant was at a friend’s house in Wilkinsburg when he
     received the text messages from [Appellant]. David Bryant
     previously had dated [Appellant] for a number of years. The two
     had a tumultuous and volatile relationship, and they were no
     longer together at the time of the incident. [Appellant’s] text
     messages caused David Bryant to become concerned for his son,
     so he went to [Appellant’s] home and found his injured son outside
     on the back porch, right where [Appellant] had said that she left
     him.

     When he arrived at the back porch of [Appellant’s] home, David
     Bryant began video recording what he saw on his cell phone. The
     video captures [Victim], alone and crying outside on the porch, as
     well as David Bryant’s emotional reaction to finding his injured
     son. David Bryant can be heard sobbing and banging on the door.
     He eventually kicked down the door of [Appellant’s] house after
     she failed to answer the door. The video captures what happens
     inside of the apartment, while the audio reveals David Bryant in a
     distressed and panicked state. As he is crying, he is heard
     repeatedly saying to [Appellant], “you hit my fucking son!?”[,]
     “you beat my son like that yo!?[”,] “you hit my son like that!?”[,
     and] “you put your hands on my fucking son!?” In response to
     David Bryant’s questions about beating [Victim], [Appellant] is
     heard repeatedly stating, “I don't care,” “Oh well,” “I told you to
     get him,” “Bitch I don't care.” David Bryant testified that he was
     “not thinking straight” and left the house.          He called an
     ambulance, contacted his sister, and spoke with the police on the
     phone that night. The text messages sent by [Appellant], and the
     video taken by David Bryant, were provided to the police that
     night by Tennille Webb, David Bryant’s sister.

     At approximately 1:00 a.m. on the morning of September 13,
     2014, multiple officers from the Wilkinsburg Police Department
     were dispatched to [Appellant’s] residence after receiving a report
     of “possible child abuse that had occurred” at the home. When
     the officers entered [Appellant’s] apartment, they encountered
     [Appellant] in the living room, which was located approximately

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     25 to 50 feet away from the bedroom where [Victim] was now
     located. The officers noticed that, although [Appellant’s] lip was
     bloody and swollen, she was “very calm” and did not appear to be
     in any “kind of distress at that time.” The officers entered the
     master bedroom and observed [Victim’s lying] on an adult bed,
     which did not have any safety railings surrounding it. The child
     was crying and was in obvious distress, and officers “immediately
     noticed he had bruising about the face [and] head” and that his
     nose was bleeding. It was apparent to the officers that the child
     had been assaulted and that he required immediate medical
     attention.   Medical personnel arrived on the scene shortly
     thereafter, and [Victim] was transported to Children’s Hospital.
     [Appellant] did not show or express any kind of emotion or
     concern for her child during her interaction with the officers. She
     did not ask where the child was being transported[,] and she did
     not ask to accompany her child to the hospital.

     When asked how [Victim] had sustained his injuries, [Appellant]
     told officers that she had been in an altercation with David Bryant
     earlier that evening. She stated that she was in her bedroom
     sleeping, with [Victim] asleep at the foot of her bed, when David
     Bryant broke into her house. [Appellant] further stated that David
     Bryant “went around the bed” and “pushed a [flatscreen] TV down
     on top of the bed where” she was lying with the child, which
     caused the 55-inch television to fall on top of [Victim]. When
     officers entered the bedroom, they noticed that the television was
     sitting upright on top of a tall dresser and that the screen had
     been broken. The dresser was approximately 5 feet tall.

     [Appellant] then told police that David Bryant attempted to assault
     her and broke her cell phone. When [Appellant] tried to reach for
     another cell phone on the other side of the bed, David Bryant took
     the phone and “a set of keys, broke some pictures around the
     apartment, then fled the residence.” [Appellant] told the officers
     that after David Bryant left the apartment, she attempted to get
     her child dressed, then placed him in the car seat and put him on
     the back porch while she “attempted to gather some belongings.”
     [Appellant] told the officers that she was unsure of what to do
     next, so she “sat on the bed for approximately an hour” and did
     not contact police or seek medical attention for her child, who,
     according to her, had just had a 55[-]inch television fall on top of
     him.

     [Appellant’s] version of events left the officers with “major
     questions” surrounding the incident, so [Appellant] was asked to

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     accompany the officers to the police station to answer more
     questions. In the meantime, the officers also attempted to locate
     David Bryant to ascertain his version of events. The officers went
     to his sister’s house, where she provided the officers with the text
     and video evidence from that evening. Upon reviewing that
     evidence, the officers placed [Appellant] under arrest for
     assaulting her child. By the time the officers reviewed the text
     messages and video, approximately an hour and a half had passed
     since [Victim] had been assaulted.

     At the Children’s Hospital of Pittsburgh, [Victim] underwent a CT
     scan of his head and additional x-rays. He was then admitted to
     the pediatric ICU unit. [Victim] was placed in a neck collar, and
     he “had to have an abdominal CT because he had evidence of
     abdominal injury.” Dr. Jennifer Wolford, the attending physician
     in the Division of Child Advocacy at Children’s Hospital, was
     consulted to evaluate [Victim] due to the nature of his injuries.
     Her primary responsibility is the “evaluation and assessments of
     child abuse and child maltreatment.”

     Upon her examination of [Victim], it was clear to Dr. Wolford that
     he had sustained numerous and serious injuries. Dr. Wolford
     noted that [Victim] had “significant bruising to both sides of his
     face,” and that he was in the “third percentile for his age[]” [with
     respect to his weight.] Dr. Wolford also observed that [Victim]
     had bruising and swelling across his nose, and that he was
     bleeding underneath his right eye. [Victim] had “bursted blood
     vessels” in “the inner part of his right eye,” which indicated blunt
     trauma. [Victim] had suffered a “subconjunctival hemorrhage,”
     and he had “skull fractures in the rear sides of his head above his
     ears on both sides.” The bruising and inflammation that he
     suffered also extended into his hairline and ears. [Victim] suffered
     “trauma on both sides of his face” and had “multiple bruises” in
     “multiple planes of his body.” Dr. Wolford also was concerned that
     [Victim] had been the victim of hair pulling because there was
     obvious thinning of his hair on the right side of his head.

     The x-rays conducted revealed that [Victim] had “two rib fractures
     of different ages.” One was a healing rib fracture of his 10th rib
     on the right side of his body, and the other was a rib fracture of
     the 5th rib on the right side of his body. Dr. Wolford noted that
     rib fractures “are highly concerning and usually associated with
     physical child abuse.” The rib fractures were approximately two
     (2) to three (3) weeks old. Dr. Wolford also determined that
     [Victim] had suffered significant “abdominal trauma, specifically

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     [to] the liver.” [Victim’s] liver enzymes were 20 times the normal
     limit, which indicated a liver contusion and showed that “he had
     clearly taken blunt trauma to the abdomen.”              Dr. Wolford
     explained that, in order to sustain a liver contusion, “[g]reat force”
     had to be inflicted on the liver. She further explained that air bags
     being deployed as a result of a car accident would not even cause
     that type of injury.

     Based on her examination of [Victim], and based on her training,
     education, and experience, Dr. Wolford concluded that [Victim’s]
     injuries were inconsistent with him receiving “one strike or one
     blow of some kind” because he had “multiple impacts across his
     head” that caused substantial bruising. Based on the nature and
     location of his injuries, it was her opinion that [Victim] had “clearly
     been the victim of inflicted trauma.” The fact that [Victim] had
     “multiple hits in multiple planes of the head across both sides” led
     her to conclude that he was the “victim of child physical abuse.”
     Dr. Wolford rejected the notion that [Victim’s] injuries could have
     been the result of an accident because, although accidental
     bruising happens to children, “the most common sites of
     accidental bruises are shins, knees and foreheads.”                She
     determined that [Victim’s] injuries were “not anywhere near” the
     type of accidental bruising that occurs in some children. Dr.
     Wolford explained that [Victim’s] injuries were very serious and
     necessarily would have caused him “[s]ignificant” and “very
     substantial pain.” It was clear that [Victim] had sustained
     “multiple repeated hits to the face” and that there was “no way
     that [his injuries were caused] in one shot.”

     Dr. Wolford’s overall diagnosis was that [Victim] “had been the
     victim of physical child abuse on more than one occasion [] [a]nd
     likely repeatedly.” Dr. Wolford firmly rejected the idea that a
     television set falling on a child could cause “two parietal skull
     fractures, one healing rib fracture, one acute rib fracture, bruising
     and hemorrhaging about the head, tissue damage around the eyes
     and a liver contusion.” Dr. Wolford estimated that [Victim]
     suffered “at least 20 blows to the head.” She confirmed that
     “there is no way” that [Victim’s] injuries were “caused by an
     accidental single event,” and her opinions were rendered to a
     reasonable degree of medical certainty. Dr. Wolford explained
     that as a child abuse physician, it is her duty to assess whether
     injuries are caused accidentally or as a result of abuse. Based on
     her evaluation of [Victim], Dr. Wolford testified persuasively that
     “there is absolutely no accidental explanation for the extent of
     [his] injuries.”

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     At trial, [Appellant] testified on her own behalf and denied that
     she was the cause of [Victim’s] injuries. She recounted the
     volatile relationship that she had with David Bryant, as well as the
     altercation that had transpired between them on the day of the
     incident. She maintained that the significant injuries suffered by
     her son were caused by a 55-inch television falling off the dresser
     when David Bryant broke into her apartment on the night of the
     incident and assaulted her. [Appellant] also disputed the validity
     of the video recording taken by David Bryant and denied that the
     text messages were sent by her.

     [Appellant’s] friend, Tiesha Griffin, also testified on her behalf.
     Ms. [Griffin] had previously babysat [Victim], but she had stopped
     babysitting him in August of 2014. Ms. [Griffin] admitted that she
     did not have any medical training, and she testified that, during
     the course of her watching [Victim], she had never noticed any
     bumps or bruises on his head.

Trial Court Opinion (TCO), 10/4/2017, at 2-10 (internal citations to record

omitted; some brackets added).

     A jury trial took place between August 2, 2016 and August 4, 2016.

Ultimately, a jury found Appellant guilty of aggravated assault - victim less

than 13 and defendant 18 or older, 18 Pa.C.S. § 2702(a)(9); endangering

welfare of children – parent/guardian/other commits offense, 18 Pa.C.S. §

4304(a)(1); simple assault – victim under 12 and defendant 18 or older, 18

Pa.C.S. § 2701(b)(2); recklessly endangering another person, 18 Pa.C.S. §

2705; and false report to law enforcement authorities – falsely incriminate

another, 18 Pa.C.S. § 4906(a). On November 30, 2016, Appellant received

an aggregate sentence of 7½ to 15 years’ imprisonment. She subsequently

filed a timely post-sentence motion, in which she challenged, inter alia,

whether the verdicts were against the weight of the evidence. On February

2, 2017, the trial court denied Appellant’s post-sentence motion. Appellant


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filed a timely notice of appeal on March 3, 2017, and timely filed a court-

ordered statement of errors complained of on appeal pursuant to Pa.R.A.P.

1925(b).

      Appellant raises a single issue for our review:
      Did the lower court abuse its discretion when it denied the post-
      sentence motion alleging that the guilty verdicts in this case were
      against the weight of the evidence provided?

Appellant’s Brief at 6.

      Initially, we acknowledge our standard of review:
      A motion for a new trial based on a claim that the verdict is against
      the weight of the evidence is addressed to the discretion of the
      trial court. A new trial should not be granted because of a mere
      conflict in the testimony or because the judge on the same facts
      would have arrived at a different conclusion. Rather, the role of
      the trial judge is to determine that notwithstanding all the facts,
      certain facts are so clearly of greater weight that to ignore them
      or to give them equal weight with all the facts is to deny justice.
      It has often been stated that a new trial should be awarded when
      the jury’s verdict is so contrary to the evidence as to shock one’s
      sense of justice and the award of a new trial is imperative so that
      right may be given another opportunity to prevail.

      An appellate court’s standard of review when presented with a
      weight of the evidence claim is distinct from the standard of review
      applied by the trial court:

           Appellate review of a weight claim is a review of the exercise
           of discretion, not of the underlying question of whether the
           verdict is against the weight of the evidence. Because the
           trial judge has had the opportunity to hear and see the
           evidence presented, an appellate court will give the gravest
           consideration to the findings and reasons advanced by the
           trial judge when reviewing a trial court’s determination that
           the verdict is against the weight of the evidence. One of the
           least assailable reasons for granting or denying a new trial
           is the lower court’s conviction that the verdict was or was
           not against the weight of the evidence and that a new trial
           should be granted in the interest of justice.


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       This does not mean that the exercise of discretion by the trial court
       in granting or denying a motion for a new trial based on a
       challenge to the weight of the evidence is unfettered.             In
       describing the limits of a trial court’s discretion, we have
       explained:

          The term “discretion” imports the exercise of judgment,
          wisdom and skill so as to reach a dispassionate conclusion
          within the framework of the law, and is not exercised for the
          purpose of giving effect to the will of the judge. Discretion
          must be exercised on the foundation of reason, as opposed
          to prejudice, personal motivations, caprice or arbitrary
          actions. Discretion is abused where the course pursued
          represents not merely an error of judgment, but where the
          judgment is manifestly unreasonable or where the law is not
          applied or where the record shows that the action is a result
          of partiality, prejudice, bias or ill-will.

Commonwealth v. Clay, 64 A.3d 1049, 1054-55 (Pa. 2013) (internal

citations and quotation marks omitted; emphasis in original).

       Appellant argues that the trial court abused its discretion in determining

that the verdicts were not against the weight of evidence because “the

testimony of a known purveyor of falsehood, David Bryant, was believed,

despite [his] inconsistencies and lies, over the testimony of [Appellant].”

Appellant’s Brief at 13 (unnecessary emphasis omitted).        Appellant asserts

that “[n]o reasonable juror should have believed any testimony given by the

father, David Bryant.” Id. at 15.1 Appellant suggests that she “was the more
____________________________________________


1To support her argument that David Bryant is not credible, Appellant explains
that he has “pled guilty to burglary and theft, both of which are crimen falsi
offenses.” Appellant’s Brief at 21. Further, she claims that his testimony
became “vastly different” on the second day of trial after he had received
immunity from charges related to this incident. See id. at 17. Additionally,
Appellant argues that David Bryant “did not know his son’s birthday or how
old his son was.” Id. at 21. Appellant also states that David Bryant “abused



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believable witness in many respects and her version of the incident should

have been accepted.” Id. at 22.

       After reviewing the record and the trial court’s opinion, we reject

Appellant’s weight claim. The trial court explained:

       In challenging the weight of the evidence, [Appellant] seeks to
       frame this case as one that solely rested on credibility
       determinations. [Appellant] represents the case as a “classic he
       said/she said scenario,” which is not an accurate statement of
       fact.     While credibility issues were at play, [Appellant]
       substantially overlooks the fact that the finding of guilty involved
       more than a simple resolution of whether [Appellant’s] testimony
       was more credible than the testimony of David Bryant. Indeed,
       this case involved text and video evidence taken at the time of the
       incident as well as an assessment by a neutral and objective
       medical witness who vehemently rejected any claim that
       [Victim’s] injuries were caused accidentally, by a television falling
       off of a dresser.

       As noted, Dr. Wolford, a child abuse physician whose primary
       responsibility is to determine whether injuries are caused as a
       result of accidents or child abuse, firmly rejected [Appellant’s]
       claim that [Victim’s] injuries were caused by way of an innocent
       and accidental event. Dr. Wolford confidently and convincingly
       testified that the child had been “the victim of physical child abuse
       on more than one occasion” and that, in addition to his rib
       fractures and liver contusion, the child had sustained
       approximately 20 blows to the head. This objective medical
       evidence supported David Bryant’s testimony and the
       Commonwealth’s overall theory that [Appellant] had brutally
       assaulted her child and that she had little, if any, regard for his
       life and well-being.

       [Appellant’s] challenge to the weight of the evidence, much like
       her trial strategy, completely ignores the medical evidence and
____________________________________________


[her] on various occasions, as he was a heavy drinker and extremely jealous,
thinking that [Appellant] was dating or talking to other men[,]” and “the police
had been called to her apartment several times because Bryant would come
to her apartment without permission.” Id. (citation omitted).

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     testimony and, instead, shifts the focus and blame to David
     Bryant, his history, and behavior. While Mr. Bryant certainly had
     character flaws, there was no attempt to hide from the jury or
     gloss over the weaknesses surrounding his character and
     testimony. For example, David Bryant admitted that he had been
     incarcerated at some point in time, and the jury was informed that
     he had an active warrant for his arrest at the time of the incident.
     Mr. Bryant, despite expressing concerns that he might incriminate
     himself with some of his answers at trial, admitted that there were
     times that he broke into [Appellant’s] house, that his active
     warrant was for a burglary at [Appellant’s] residence, that he had
     assaulted [Appellant] several times in the past, and that he had
     broken things at her apartment on the evening that the incident
     occurred. The jury also was aware that David Bryant was
     testifying pursuant to an immunity agreement with the
     Commonwealth, that he had been charged with crimes as a result
     of the incident, and that he had prior crimen falsi convictions for
     burglary and theft.

     While David Bryant was not going to win any father-of-the-year
     awards, neither he nor his parenting skills were on trial. The only
     question before the jury was whether [Appellant] was responsible
     for the injuries suffered by her infant child. The amount of weight
     to be given to David Bryant’s testimony was solely a matter for
     the jury to decide, and they were free to believe all, part, or none
     of his testimony. It is clear that when the jury considered his
     testimony, the medical evidence, and the rest of the evidence as
     a whole, it found that [Appellant’s] version of events was not
     worthy of belief. As noted, the medical testimony in this case was
     compelling, with Dr. Wolford sharply rejecting the idea that
     [Victim’s] injuries were caused by the television. She opined, to
     a reasonable degree of medical certainty, and with unshakeable
     certainty and conviction, that the child’s injuries were produced
     as a result of repeated abuse and trauma. The competing story
     to Mr. Bryant’s — [Appellant’s] claim that [Victim] was injured
     when a television fell on top of him — was simply not supported
     by any evidence aside from her own self-serving testimony.

     Although it did not sit as the fact-finder in this case, this court
     presided over the trial, and it had the opportunity to observe the
     witnesses’ demeanor and tone as they testified. This court had
     no trouble understanding why the jury rejected [Appellant’s]
     testimony in favor of the Commonwealth’s evidence. [Appellant]
     did not show any emotion throughout the trial, even when pictures
     of [Victim’s] injuries were being shown to the jury. When she took

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     the stand, she was cold, calculated, combative, and completely
     unconcerned for the well-being of her child.           [Appellant’s]
     testimony was not credible in the least, and her testimony did not
     carry the “ring of truth” that would accompany the testimony of
     an aggrieved mother who allegedly watched her child sustain
     serious injuries from a fallen television and who was being wrongly
     accused of committing a heinous attack on her child.

     Not only was [Appellant] lacking the emotion and concern of a
     mother with a seriously injured child at the time of trial, but the
     officers who responded to the incident also testified to
     [Appellant’s] emotionless state at the very time of the incident.
     The officers testified that [Appellant] was “very calm” and did not
     appear to be in any “kind of distress” when they arrived at her
     residence on the night of the incident. [Appellant] did not show
     or otherwise express any kind of concern for her child, and she
     did not ask to accompany her child to the hospital. Additionally,
     instead of trying to seek help and medical attention for her child,
     who, according to her, had just been crushed by a 55-inch
     television, she sat in her room for over an hour after David Bryant
     fled from the residence, likely trying to concoct an explanation for
     [Victim’s] injuries, while she left her injured son alone outside, in
     the middle of the night, next to a pile of trash.

     [Appellant] essentially seeks to retry her case on appeal. Indeed,
     the arguments set forth in support of [Appellant’s] weight claim
     were arguments that have already been presented to the jury for
     their consideration, and ultimately rejected by them. It is not the
     function of this court to second-guess the credibility
     determinations made by the jury or to question the jury’s
     resolution of conflicting testimony. Neither this court, nor the
     appellate court, may substitute its judgment for that of the fact-
     finder…. The jury was free to believe all, part, or none of the
     evidence presented in this case, and it was solely their duty to
     evaluate the evidence as a whole and determine the amount of
     weight to be afforded to the testimony of the witnesses.

     For the reasons set forth above, this court was not at all shocked
     by the verdict rendered. There were no facts that were “so clearly
     of greater weight that to ignore them or to give them equal weight
     with all the facts is to deny justice,” and the verdict was not “so
     contrary to the evidence so as to shock one’s conscience.” Clay,
     [64 A.3d] at 1055.




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TCO at 12-16 (some internal citations omitted). We ascertain no abuse of

discretion by the trial court in denying Appellant’s weight claim. Accordingly,

we conclude that the verdicts were not against the weight of the evidence,

and affirm Appellant’s judgment of sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/07/2018




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