J-A26007-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ORLANDO RICARDO WILLIAMS                   :
                                               :
                       Appellant               :   No. 880 WDA 2018

           Appeal from the Judgment of Sentence December 4, 2017
    In the Court of Common Pleas of Allegheny County Criminal Division at
                       No(s): CP-02-CR-0009866-2016


BEFORE: SHOGAN, J., LAZARUS, J., and OLSON, J.

MEMORANDUM BY SHOGAN, J.:                           FILED NOVEMBER 26, 2019

       Orlando Ricardo Williams (“Appellant”) appeals from the judgment of

sentence imposed after a nonjury trial at which he was found guilty of first-

degree murder, endangering the welfare of children (“EWC”), and recklessly

endangering another person (“REAP”).1 We affirm.

       The trial court, sitting as the finder of fact, summarized the trial

evidence as follows:

       [O]n June 20, 2016, [eight–year-old] J.S., was admitted into the
       hospital with fatal injuries. The day before had been Father’s Day
       and the family spent the day at Ohiopyle and visited Grandma at
       Big Bear camp grounds. J.S. was fine all day, laughing, running,
       playing, and eating pizza.          (Nonjury Trial Transcript of
       November 28, 2017 — December 4, 2017, (hereinafter “TT”) at
       53 - 60). They left for home between 11:00 p.m. and midnight.
       Aliehsa Lininger, J.S.’s mother (hereinafter “Mother”) drove the
       family home and the victim slept on the way home. [Appellant]
____________________________________________


1   18 Pa.C.S. §§ 2502(a), 4304(a)(1), and 2705, respectively.
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     was Mother’s boyfriend and had lived with the family since 2011.
     He was the biological father of the youngest child, Z.P., but not
     [of] the victim or [Mother’s thirteen-year-old son, S.S.].

            The family arrived home about 1:30 a.m. J.S. fell asleep at
     the table after they were home and Mother told him to go to his
     room, but first take out the garbage. (TT at 64). J.S. was not
     injured at this point. (TT at 65). As J.S. walked towards the front
     door with the garbage, [Appellant] punched him in the chest for
     attempting to take the garbage out the front door rather than the
     back door. The punch caused J.S.’s head to hit the wall. (TT at
     185). Mother testified that [Appellant] would physically discipline
     the children using a belt, paddle, or other items. (TT at 49, 89).
     After the punch, J.S. took out the garbage and then went upstairs.
     J.S. had no trouble walking or going upstairs after the punch and
     did not seem abnormal, so this punch could not have been the
     cause of the fatal injuries. (TT at 64 - 66, 187).

           Mother and S.S. left shortly after that, around 1:30 a.m.,
     for Mother’s nighttime commercial cleaning job. (TT at 62, 92).
     S.S. went with Mother to help her clean many nights, including
     that night. (TT at 63, 188). While they were away [Appellant]
     was left at home to care for J.S. and Z.P., his younger brother.
     (TT at 191). Mother and S.S. returned from their job between
     2:30 a.m. and 3:30 a.m. They had been away from the house
     between one and two hours. (TT at 66, 191).

          Soon after they returned home from work, S.S. went to his
     room and [found] J.S. sleeping in his bed. (TT at 72, 193). S.S.
     moved J.S. to the floor, placing a pillow underneath his head. (TT
     at 193). S.S. noticed that J.S.’s clothes were wet. (TT at 197).
     He was concerned about J.S.’s unusually loud snoring and went
     downstairs and told Mother, who did not check on J.S. (TT at 72,
     193). S.S. did not see J.S. again because when he returned to his
     [room] J.S. was gone. [Appellant] had been upstairs with the
     opportunity to move J.S. from the floor into J.S.’s bed.

           It is important to note that J.S.’s clothes were wet when
     S.S. moved him to the floor. [Appellant] told Detective Anthony
     Perry as he showed the detective around the house, that he threw
     water on J.S. to try to wake him up. (TT at 147). He also told
     this to Detective Daniel Goughnour at the McKeesport hospital.
     He said that he found J.S. unconscious in his bedroom at
     approximately 3:30 a.m. and he threw water on J.S. to try to wake

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     him up. [Appellant] was not in custody when [he] made these
     statements. (TT at 20 - 22).

           A few hours after Mother went to sleep, before 6:00 a.m.,
     [Appellant] came down carrying J.S. and said they had to take
     him to the hospital. (TT at 74). They took J.S. to McKeesport
     Hospital and from there J.S. was transferred to Children’s
     Hospital.

            Dr. Jennifer Clarke, a pediatrician at the Child Advocacy
     Center at Children’s Hospital, testified about J.S.’s condition. She
     testified that he was admitted about 6 a.m. in critical condition.
     She said he “essentially presented as dead.” (TT at 255). The
     victim “had a large subdural hemorrhage with mass effect and
     herniation which [caused] his fatal injury.” (TT at 258). J.S. had
     a large bleed in his brain. (TT at 256 - 258). Dr. Clarke explained
     what had happened to J.S.:

                 So subdural hemorrhages — basically there are
           veins inside the head, in the brain. When they get
           torn or avulsed, they bleed, and that collection is your
           subdural hemorrhage. When they get large -- when
           they get very large, that collection, there can be mass
           effect on the brain. So the skull is basically an
           enclosed space, so if there’s something bleeding in
           there, there’s nowhere for that brain -- the brain gets
           compressed and eventually needs to go somewhere,
           and so that somewhere is your neck, and that’s what
           you call herniation, when the brain goes down towards
           your neck, and that causes death. ([TT at] 259)

            The subdural hemorrhage was caused by repetitive
     significant and severe acceleration-deceleration forces to J.S.’s
     head. (TT at 275). Multiple forward and backward movements
     plus impact caused the fatal brain injury. (TT at 277). The
     repetitive impact was severe enough [to] have avulsed the veins.
     (TT at 275). Dr. Clarke testified that “There was also bruising to
     the front part of the brain so again signifying that there was a lot
     of forces that acted on his brain to be shaken in his skull.” (TT at
     275). A single impact would not have caused the subdural
     bleeding. (TT at 277). There were abrasions, bruising and
     swelling on his forehead and multiple bruises on his neck that were
     not caused by medical care. J.S. did not have any preexisting
     medical issues that would explain his brain injury. (TT at 266,

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     270). Dr. Clarke’s diagnosis was that the fatal brain injury was
     caused by child abuse. (TT at 274).

          The injuries to his brain were so severe that he would have
     become symptomatic immediately afterwards, but not necessarily
     immediately incapacitated, perhaps losing consciousness,
     showing lethargy, headaches, or vomiting. (TT at 275-276, 301).
     He would not have seemed normal after the brain injury occurred.

            Dr. Todd Luckasevic, a forensic pathologist [and] Associate
     Medical Examiner for Allegheny County Medical Examiner’s Office
     testified about the autopsy he performed on J.S. His findings were
     consistent with Dr. Clark[e]’s conclusions. At the time of the
     autopsy J.S. weighed 51 pounds and his height was 48 inches (TT
     at 287). J.S.’s head depicted multiple contusions. There was
     internal trauma to the head and brain. (TT at 294 — 296).
     Dr. Todd Luckasevic concluded that J.S. had a large subdural
     hemorrhage of the brain. (TT at 297). Dr. Luckasevic explained
     that the bleeding in the brain was caused by:

           the head striking a blunt object or a blunt object
           striking the head, so in this case, again it’s more like
           a -- a couple mechanisms that could occur would be a
           forceful push against the wall or a forceful push
           against the floor where you have a sudden stop. You
           have impact and a sudden stop, because we need to
           have a sudden stop to cause tearing of the bridging
           veins which causes that subdural hemorrhage. So the
           [skull] stops, but the brain still kind of moves in the
           cranial cavity, and it breaks those bridging veins
           which causes the hemorrhage. (TT at 312).

           The cause of death was blunt force trauma to the head, a
     homicide. It was not caused by a single blow. There were injuries
     to the front, back, and right side of J.S.’s head. (TT at 311). There
     were two major abrasions on the back of the head which could
     have resulted in the subdural hemorrhage. The bruising of the
     right side and frontal forehead definitely contributed to the
     subdural hemorrhage. (TT at 303).

Trial Court Opinion, 1/22/19, at unnumbered 1–4.




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      Detective James Fitzgerald and Detective Anthony Perry of the

Allegheny County Police Department testified as follows: On June 20, 2017,

at approximately 8:30 a.m., Detective Fitzgerald was informed by his

supervisor that a child was admitted to the hospital with a head injury and

was in grave condition. N.T. Trial, 11/28/17, at 24. While Detective Fitzgerald

was speaking to Mother, Appellant consented to a search of his vehicle and

the house.    Id. at 27.    During the vehicle search, Detective Fitzgerald

discovered a plastic bag holding the clothes that J.S. wore to the hospital and

noted that the clothes “were wet or moist.”     Id. at 28. Although he later

changed his story, Appellant initially admitted to Detective Perry that

Appellant attempted to wake J.S. by throwing water on him.          N.T. Trial,

11/29/17, at 147.

      Detective Fitzgerald also conducted a search of Mother’s and Appellant’s

house. In J.S.’s bedroom, the detective observed red-brown stains on a sheet

that was “consistent with blood” and a red-brown stain on the wall of the

bedroom. N.T. Trial, 11/28/17, at 35–36. Subsequent testing revealed that

the blood stains collected from the bedroom matched J.S.’s DNA. N.T. Trial,

11/29/17, at 242.

      At the conclusion of the bench trial on December 4, 2017, the trial court

found Appellant guilty of the aforementioned crimes. N.T. Trial, 12/4/17, at

340. The trial court sentenced Appellant on the same day to life in prison

without parole on the murder conviction, with no further penalty on the EWC


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and REAP convictions. Id. Appellant filed post-sentence motions, which the

trial court denied. This timely appeal followed. Appellant and the trial court

complied with Pa.R.A.P. 1925.

       On appeal, Appellant presents the           following questions for our

consideration:

       1.     To convict [Appellant] of First-degree murder, the
              Commonwealth was required to establish that [Appellant]
              killed [J.S.]. It failed to do so. Was the evidence insufficient
              to support [Appellant’s] conviction?

       2.     To convict [Appellant] of First-degree murder, the
              Commonwealth was required to establish that [Appellant]
              had the specific intent to kill. It failed to do so. Was the
              evidence insufficient to support this conviction?

       3.     To convict [Appellant] of Endangering [the] welfare of
              children (F3), the Commonwealth was required to prove
              that [Appellant] engaged in a course of conduct of
              endangering the welfare of [J.S.]. It failed to prove a course
              of conduct. Was the evidence insufficient to support this
              conviction?

       4.     To convict [Appellant] of Recklessly endangering another
              person, the Commonwealth was required to prove that
              [Appellant] engaged in conduct that placed or may have
              placed J.S. in danger of death or serious bodily injury.
              Again, it failed to do so. Was the evidence also insufficient
              to support this conviction?

Appellant’s Brief at 2–3.2




____________________________________________


2 Appellant raised five more issues in his Rule 1925(b) statement of errors,
but he has abandoned them on appeal. Commonwealth v. Dunphy, 20 A.3d
1215, 1218 (Pa. Super. 2011) (issues raised in 1925(b) statement that are
not included in appellate brief are waived).

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      All of Appellant’s issues challenge the sufficiency of the Commonwealth’s

evidence to sustain the convictions. Because a determination of evidentiary

sufficiency presents a question of law,

      our standard of review is de novo and our scope of review is
      plenary. In reviewing the sufficiency of the evidence, we must
      determine whether the evidence admitted at trial and all
      reasonable inferences drawn therefrom, viewed in the light most
      favorable to the Commonwealth as verdict winner, were sufficient
      to prove every element of the offense beyond a reasonable doubt.
      The facts and circumstances established by the Commonwealth
      need not preclude every possibility of innocence. It is within the
      province of the fact-finder to determine the weight to be accorded
      to each witness’s testimony and to believe all, part, or none of the
      evidence. The Commonwealth may sustain its burden of proving
      every element of the crime by means of wholly circumstantial
      evidence. Moreover, as an appellate court, we may not re-weigh
      the evidence and substitute our judgment for that of the fact-
      finder.

Commonwealth v. Baker, 201 A.3d 791, 795 (Pa. Super. 2018) (internal

citations, quotation marks, and brackets omitted).

      This was a nonjury trial; therefore, the trial court served as the

factfinder. “[T]he finder of fact, while passing upon the credibility of witnesses

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

the evidence.” Commonwealth v. Davison, 177 A.3d 955, 957 (Pa. Super.

2018) (citation omitted).

      Appellant initially challenges whether the Commonwealth offered

sufficient evidence to prove two of the elements necessary to sustain his first-

degree murder conviction: namely, that he was responsible for the killing and




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whether he acted with specific intent to kill. A person commits first-degree

murder:

      when he intentionally kills another human being; an intentional
      killing is defined as a “willful, deliberate and premeditated killing.”
      18 Pa.C.S. §§ 2501, 2502(a), (d). To sustain a conviction for first-
      degree murder, the Commonwealth must prove that: (1) a
      human being was unlawfully killed; (2) the accused was
      responsible for the killing; and (3) the accused acted with malice
      and a specific intent to kill. A jury may infer the intent to kill
      based on the accused’s use of a deadly weapon on a vital part of
      the victim’s body.

Baker, 201 A.3d at 795–796 (some internal citations and quotation marks

omitted).

      Appellant first discusses the actus reus element of first-degree murder

and asserts that the evidence did not identify him as the person who caused

J.S.’s death. Appellant’s Brief at 14–15. The focus of Appellant’s argument is

on the timing of J.S.’s injury.     Appellant’s Brief at 17–24.      According to

Appellant, evidence of the injury occurring around 3:00 a.m. was “inherently

contradictory.” Id. at 20. Appellant posits that the injury actually occurred

around 6:00 a.m., at which time Mother and S.S. were also present in the

house, and suggests that one of them could have inflicted the injury. Id. at

22. Appellant contends that the Commonwealth’s evidence identifying him as

the murderer “merely raised a conjectural suspicion which was in and of itself

insufficient to convict.” Id. at 23 (internal quotation and citation omitted).

      Rejecting Appellant’s argument, the trial court based its ruling on the

following:


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     The evidence . . . showed that [Appellant] was the person
     responsible for the killing. J.S. was in [Appellant’s] exclusive care
     when the fatal brain injuries occurred. Although the timeline is
     not precise regarding the time Mother and S.S. left for work and
     when they returned, it is certain that [Appellant] remained home
     [with] J.S. and the younger child Z.P. for at least an hour. This
     [c]ourt found Mother and S.S. to be credible when they testified
     that Mother took S.S. to work with her. This [c]ourt accepted
     Mother’s explanation that she had originally told the detectives
     that S.S. stayed at the house while she went to work that night
     because it was embarrassing to admit that she took S.S. to work
     with her. (TT at 63). This [c]ourt, as fact-finder, observed Mother
     at trial as she explained the reasons for her prior inconsistent
     statement, and determined which of the two statements told by
     the Mother was worthy of belief. Commonwealth v. Brown, 617
     Pa. 107, 156, 52 A.3d 1139, 1169 (Pa. 2012). Credibility
     determinations are made solely by the fact-finder, and will not be
     overturned by the appellate courts. This [c]ourt, as fact-finder,
     was able to exclusively weigh the evidence, assess witness
     credibility, and was free to believe all, part, or none of the
     witness’s testimony. Commonwealth v. Konias, 136 A.3d 1014,
     1023 (Pa. Super. 2016).

           The evidence proved that J.S. was in [Appellant’s] sole care
     during the time period that the brain injury must have occurred.
     J.S. had not received the fatal injuries before Mother and S.S. left
     the house for work, as they both saw him walking upstairs
     uninjured shortly before they left. The punch in J.S.’s chest that
     S.S. witnessed, which caused J.S.’s head to hit a wall, could not
     have caused the fatal brain injury.         Both Dr. Clark[e] and
     Dr. Luckasevic said that a single blow to the head would not have
     caused the subdural hemorrhage that caused J.S.’s death.
     Additionally, J.S. continued to take out the garbage and then
     walked upstairs, which would have been impossible after the
     subdural hemorrhage occurred. Mother and S.S. would have
     noticed if the subdural hemorrhage occurred before they left the
     house.

            It is also clear from the evidence that the fatal brain injury
     occurred before Mother and S.S. returned from work. Shortly
     after arriving home, S.S. went upstairs to his room and J.S. was
     in the bed where S.S. usually slept. When S.S. moved J.S. to the
     floor, he noticed that J.S’s clothes were wet and J.S.’s snoring was
     unusually loud. [Appellant] admitted to Detective Perry and

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      Detective Goughnour that he poured water on J.S. attempting to
      wake him. This must have occurred before Mother and S.S.
      returned home since J.S. was wet when S.S. moved him. This
      time-line established that [Appellant] caused the fatal brain injury
      because it occurred when Mother and S.S. were at work and J.S.
      was in [Appellant’s] exclusive care.

Trial Court Opinion, 1/22/19, at unnumbered 5–6.

      In support of his position that the evidence was insufficient to establish

that he committed the murder, Appellant relies on Commonwealth v.

Woong Knee New, 47 A.2d 450 (Pa. 1946). The conviction in New was

based on evidence that placed the defendant with the victim at the victim’s

home shortly before he was murdered.          There was, however, no evidence

tending to prove that the defendant committed the crime or casting doubt on

the equally likely possibility that an unknown assailant killed the victim after

the defendant left his company. Id. at 468. In reversing the conviction the

Pennsylvania Supreme Court noted that:

      When two equally reasonable and mutually inconsistent inferences
      can be drawn from the same set of circumstances, a [fact-finder]
      must not be permitted to guess which inference it will adopt,
      especially when one of the two guesses may result in depriving a
      defendant of his life or his liberty.

Id.

      In contrast, the nonjury trial we are reviewing involved fatal blunt force

trauma to the head and a parental figure who never left the scene of the

crime.   The Commonwealth established that J.S. was not seriously injured

when Mother and S.S. left the house.          Although S.S. witnessed Appellant

punch J.S. in the chest, causing J.S. to hit the back of his head against a wall,

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see N.T. Trial, 11/29/17, at 185–186, Mother testified that when she left the

house, there was nothing wrong with J.S. N.T. Trial, 11/28/17, at 65. S.S.

also recalled that after Appellant punched J.S., J.S. was able to walk up the

stairs without difficulty. N.T. Trial, 11/29/17, at 187. This evidence indicates

that the initial punch and resultant head bang were only the precursors to the

subsequent blunt force trauma inflicted on J.S. that night.

      This conclusion is supported by Dr. Clarke’s medical opinion that an

individual with the type of brain injury that J.S. ultimately suffered would not

have been able to walk up steps. N.T. Trial, 11/29/17, at 278. Furthermore,

Dr. Clarke asserted that J.S.’s subdural bleeding could not have been caused

by a single impact; rather, it resulted from “repetitive acceleration-

deceleration forces upon the head.” Id. at 277. Dr. Luckasevic confirmed

that J.S.’s external injuries to the forehead contributed to the subdural

hemorrhage. N.T. Trial, 11/30/17, at 303. It is obvious that a punch to the

chest and hitting the back of a head on a wall would not cause an external

injury to the forehead.

      We next examine the events that transpired after Mother and S.S.

returned home. When Mother walked into the house, she proceeded to the

second-floor bathroom. Mother passed by J.S.’s and Z.P.’s bedroom on her

way to the bathroom, but she did not look into their room.           N.T. Trial,

11/28/17, at 68–69. She did, however, open the door to S.S.’s bedroom and,

from the hallway, observed J.S. sleeping in S.S.’s bed and heard him snoring


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loudly. Id. at 69. That was the last time she saw J.S. until Appellant woke

her in the morning. Id. at 73.

      S.S. testified that when he returned home, he went upstairs to go to

sleep. N.T. Trial, 11/28/17, at 192. When he entered his bedroom, he saw

J.S. sleeping in S.S.’s bed and heard him snoring loudly. N.T. Trial, 11/28/17,

at 192. When S.S. moved J.S. to the floor, he noticed that J.S.’s clothing was

wet. Id. at 193, 197. S.S. went downstairs and told Mother that S.S. was

sleeping in his room. Id. at 194. S.S. then asked Appellant if he knew why

J.S. was sleeping in his bed. Id. at 195. Appellant responded that J.S. was

supposed to be cleaning his room. Id. After another trip down and up the

stairs, S.S. encountered Appellant walking down the steps from the upstairs.

Id. at 196. When S.S. then entered his bedroom, he noticed that J.S. was

back in his own bedroom. Id. at 197. At approximately 6:00 a.m., Appellant

came downstairs carrying J.S. and told Mother that J.S. needed to go to the

hospital. Id. at 74. According to the hospital records examined by Dr. Clarke

after J.S. was transferred to Children’s Hospital, J.S. presented at UPMC-

McKeesport with fixed and dilated pupils, a bruised forehead, no discernable

gag reflex, and a low ph level. N.T. Trial, 11/29/17, at 255. According to Dr.

Clarke, when J.S. arrived at UPMC-McKeesport “[h]e essentially presented as

dead.” Id.

      This timeline establishes that, unlike the factual scenario presented in

New, there were not two equally reasonable inferences to be drawn from the


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evidence. In New, the defense presented testimony from alibi witnesses and

from the defendant designed to prove that the defendant did not kill the

victim. New, 47 A.2d at 453, 461–462. In the instant matter, there was no

evidence presented that either Mother or S.S. inflicted J.S.’s fatal injuries.

Other than looking in on J.S. from the hallway, nothing in the record indicates

that Mother had any contact with J.S. after she came home from her cleaning

job.   S.S.’s contact with J.S. was his observation of J.S. in his bedroom,

hearing J.S.’s snoring, relocating J.S. to the floor, and reporting the situation

to Mother and Appellant.      These facts, in contrast to those surrounding

Appellant’s activity during the time in question, do not support an equal and

reasonable inference that Mother or S.S. killed J.S. Thus, we consider the

factual posture of New distinguishable from the case at hand.

       To conclude, our review of the evidence supports the trial court’s

findings with regard to Appellant’s involvement in J.S.’s death. While we agree

with Appellant that there is no direct evidence of what transpired between J.S.

and Appellant when J.S. was in Appellant’s exclusive care, the circumstantial

evidence established that Appellant caused J.S.’s fatal injuries.        Despite

defense counsel’s forceful effort to undermine the Commonwealth’s case, as

the factfinder, the trial court was free to believe the Commonwealth’s theory

and evaluate the evidence in a manner supporting its decision that Appellant

was the only person who could have injured J.S. Viewing the trial evidence

and all reasonable inferences drawn therefrom in the light most favorable to


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the Commonwealth as verdict winner, we agree with the trial court that the

evidence was sufficient to prove beyond a reasonable doubt that Appellant

was the perpetrator of these crimes.3

       Appellant’s second issue challenges the mens rea element of first-

degree murder; specifically, Appellant contends that the Commonwealth failed

to prove he had the requisite intent to kill the victim. Appellant’s Brief at 24.

“A criminal homicide constitutes murder of the first degree when it is

committed by an intentional killing.” 18 Pa.C.S. § 2502(a). An intentional

killing is “by means of poison, or by lying in wait, or by any other kind of

willful, deliberate and premeditated killing.” 18 Pa.C.S. § 2502(d). “It is well-

established that to convict a defendant of first-degree murder, the

Commonwealth must show that the defendant killed another person with the

specific intent to kill that person and malice aforethought.” Commonwealth

v. Perez, ___ A.3d ___, 2019 PA Super 300, *6 (Pa. Super. filed October 7,

2019) (quoting Commonwealth v. Santos, 876 A.2d 360, 363 (Pa. 2005)).



____________________________________________


3  To the extent Appellant is challenging the weight of the evidence, the issue
is waived for failure to include it in his Rule 1925(b) statement.
Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998) (“Any issues not
raised in 1925(b) statement will be deemed waived.”). Additionally, even if
certain language in Appellant’s 1925(b) statement might imply that he is
advancing a weight-of-the-evidence claim, we will not review it because
Appellant did not develop this argument in his appellate brief.
Commonwealth v. Charleston, 94 A.3d 1012, 1022 (Pa. Super. 2014)
(issue waived when the appellant failed to develop argument on appeal). See
also Dunphy, 20 A.3d at 1218 (issues raised in 1925(b) statement that are
not included in appellate brief are waived).

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“Specific intent to kill can be established through circumstantial evidence,

such as the use of a deadly weapon on a vital part of the victim’s body.” Id.

(quoting Commonwealth v. Mattison, 82 A.3d 386, 392 (Pa. 2013)).

“Specific intent to kill can be proven where the defendant knowingly applies

deadly force to the person of another.” Commonwealth v. Haney, 131 A.3d

24, 36 (Pa. 2015) (quotations and citation omitted). Specific intent to kill can

be discerned from the conduct and attending circumstances, showing the

perpetrator’s state of mind. Commonwealth v. Gonzalez, 858 A.2d 1219,

1223 (Pa. Super. 2004).

      Appellant recognizes that first-degree murder is an intentional killing.

Appellant’s Brief at 24. Focusing on the “willful, deliberate and premeditated”

category of intentional killings, Appellant claims the evidence failed to prove

that he “consciously considered beforehand” or “plotted in advance” to kill the

victim. Id. at 29. Appellant points to the lack of direct evidence of Appellant’s

intent to fatally injure J.S.: “[W]e truly don’t know how J.S. was injured.” Id.

at 30.   He also dismisses as “nebulous” the evidence surrounding the

circumstances of J.S.’s death: “[It] failed to show that [Appellant] knowingly

used deadly force.” Id. (emphasis in original).

      The trial court disagreed, citing the expert medical opinions of

Dr. Clarke, that “[m]ultiple forward and backward movements plus impact

caused the fatal brain injury,” Trial Court Opinion, 1/22/19, at unnumbered 3,




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and of Dr. Luckasevic that a single blow to the head would not have caused

the subdural hemorrhage that caused J.S.’s death. Id. at unnumbered 4.

       Based on this evidence, the trial court concluded, “[T]he use of deadly

force on the helpless young victim [Appellant] was entrusted to protect

showed specific intent to kill, even though there was no evidence showing with

particularity how the beatings were carried out.” Trial Court Opinion, 1/22/19,

at unnumbered 7 (citing Commonwealth v. Woodward, 129 A.3d 480, 491

(Pa. 2015)). In response to Appellant’s claim that the verdict was based on

speculation and facts not of record, the trial court opined: “[A]lthough there

was no testimony to show exactly how the beating was carried out, this court

did not speculate by concluding that [Appellant] banged the victim’s head on

a flat surface, not once but multiple times.” Trial Court Opinion, 1/22/19, at

unnumbered 7. Again, the trial court relied on the expert medical testimony

as to the cause of the victim’s injuries. Id.

       The trial court also considered Appellant’s post-injury actions as

indicative that he acted with the specific intent to kill. The trial court observed,

knowing that J.S. was nonresponsive, Appellant threw water on J.S. to rouse

him.   Despite causing grave injury to the victim, Appellant did not seek

medical attention immediately. Rather, he waited several hours before waking

Mother and taking J.S. to the hospital. According to the trial court, Appellant’s

“refusal to seek timely medical attention satisfied the specific intent to kill




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element of first-degree murder.” Trial Court Opinion, 1/22/19, at unnumbered

6.

       Appellant relies heavily on our decision in Commonwealth v.

Predmore, 199 A.3d 925 (Pa. Super. 2018) (en banc), to challenge the trial

court’s specific-intent-to-kill determination.     In Predmore, the victim

confronted the defendant at the victim’s ex-girlfriend’s house. After a fight

between the men, the defendant retrieved a gun from his car and pointed it

at the victim’s chest. When the victim turned and ran away, the defendant

fired three shots—two of which hit the victim in the back of his calves. Id. at

927.   When the defendant was charged with various offenses, he filed a

habeus corpus motion to dismiss the attempted murder charge, and the trial

court ruled that “the Commonwealth failed to present prima facie evidence of

[the defendant’s] specific intent to kill the victim.” Id.

       On review, we observed that the “‘use of a deadly weapon directed at a

vital organ of another human justifies a factual presumption that the actor

intended death unless the testimony contains additional evidence that would

demonstrate a contrary intent.’”      Predmore, 199 A.3d at 931 (quoting

Commonwealth v. Alston, 317 A.2d 229, 231 (Pa. 1974)).               See also

Commonwealth v. Knox, ___ A.3d ___, 2019 PA Super 278, *5 (Pa. Super.

filed September 12, 2019) (citation omitted) (factfinder may infer malice

“from the use of a deadly weapon upon a vital part of the victim’s body.”).

We then determined that the presumption did not apply in Predmore because


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the defendant did not shoot the victim in a vital organ, and in the absence of

that presumption, the Commonwealth was required to demonstrate other

evidence of a specific intent to kill. Predmore, 199 A.3d at 931–932 (citation

omitted).

      Appellant urges that Predmore precludes a conclusion that Appellant

had the specific intent to kill J.S. because the evidence did not show (1) that

a deadly weapon was applied to a vital organ, or (2) that Appellant verbally

indicated that he intended to kill J.S. Appellant’s Brief at 33. Neither position

has merit.

      First, although Appellant does not explain whether he is refuting the use

of a deadly weapon or denying that a vital organ was involved, he would be

mistaken in either instance.     A victim’s head is “a vital part of the body.”

Commonwealth v. Chine, 40 A.3d 1239, 1242 (Pa. Super. 2012).

      Regarding the deadly weapon element, although the Pennsylvania

Supreme Court noted in Commonwealth v. Thomas, 594 A.2d 300 (Pa.

1991), that malice is not ordinarily evident when a homicide results from a

beating without weapons, the Court further explained that “the presence of

malice is a question to be determined by examining all the circumstances of

the assault.” Id. at 302. The Court then described three instances wherein

beatings     without   weapons    supported   a   finding   of   malice.    See

Commonwealth v. Moore, 412 A.2d 549, 551 (Pa. 1980) (quotation and

citation omitted) (“size of assailant, manner in which fists were used, the


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ferocity of the attack and its duration and provocation” were circumstances

supporting a malice finding); Commonwealth v. Buzard, 76 A.2d 394, 396

(Pa. 1950) (malice disclosed where the defendant was taller and heavier than

the victim, he forced the victim to the ground and beat him repeatedly on both

sides of the face and head); and Commonwealth v. Dorazio, 74 A.2d 125,

126–127 (Pa. 1950) (former professional prize fighter stood over the victim

and struck him repeatedly thereby causing a massive brain hemorrhage).

Thomas, 594 A.2d at 302.

      At the time of the instant offense, Appellant was thirty-eight years old

and weighed 170 pounds; J.S. was eight years old and weighed fifty-one

pounds. Criminal Complaint, 8/9/16, Trial Court Docket Entry 2; N.T. Trial,

11/27/17, at 43; N.T. Trial, 11/30/17, at 302.        The medical evidence

established “a single impact would not have caused the [brain injury. Rather,

it was caused by] multiple forward and backward movements plus impact.”

N.T. Trial, 11/29/17, at 277.    As in Moore, Buzard, and Dorazio, the

circumstances surrounding J.S.’s killing support a malice finding. Appellant

directed a deadly weapon, repeated use of his hands, on a much younger,

smaller victim, at J.S.’s head. Accordingly, the presumption of malice applies

in this matter unless additional evidence demonstrates a contrary intent.

Predmore, 199 A.3d at 931.

      Appellant asserts that his “complete lack of any verbal expression of

intent to kill . . . weighs against a finding that the evidence reasonably


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supported an inference of intent to kill.”        Appellant’s Brief at 33.      This

argument is specious. While Appellant cites Predmore to support his claim

that absent his verbal indication that he intended to kill J.S., a finding of malice

is unwarranted, the Predmore Court discussed such verbalization in the

context of whether, in the absence of the presumption of malice, such an

articulation, or lack thereof, was relevant to finding a specific intent to kill.

Predmore, 199 A.3d at 932. Here, where the presumption of malice does

apply, this evidence hardly suggests a contrary intent.

      Nor does the decision in In the Interest of J.B., 189 A.3d 390 (Pa.

2018), advance Appellant’s argument that the evidence was insufficient to

prove the mens rea element for first degree murder. In J.B., the Pennsylvania

Supreme Court analyzed the sufficiency of the Commonwealth’s evidence

supporting the conviction of an eleven-year-old boy for murdering his

stepmother. The Court concluded:

      all of the Commonwealth’s forensic and eyewitness testimony, and
      all reasonable inferences derived therefrom, viewed in a light most
      favorable to it, was, at best, in equipoise, as it was equally
      consistent with two possibilities: first, that a person or persons
      unknown entered the house in which J.B.’s stepmother was sleeping
      and shot her to death . . .; second . . . J.B. . . . shot the victim in
      the back of the head. . . . The Commonwealth’s evidence was,
      therefore, insufficient as a matter of law to overcome Appellant’s
      presumption of innocence, and the juvenile court’s adjudication of
      his delinquency for these serious crimes must be reversed.

J.B., 189 A.3d at 421–422.

      Relying upon the “equipoise doctrine,” Appellant offers, “[A]ssum[ing]

the worst—that as a result of [Appellant’s] actions, J.S. hit his head off the

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wall and floor more than once—then one reasonable inference” is that

Appellant struck the victim “with the intent to cause bodily injury rather

than with a premedi[t]ated intent to kill . . . .”         Appellant’s Brief at 38

(emphasis in original).    Appellant thus urges that the evidence equally

supports an inference that he did not possess the mens rea necessary to

validate a first-degree murder conviction.

      We    have   previously   discussed     the   sufficiency   of   the   evidence

demonstrating the requisite malice for Appellant’s murder conviction.             We

credit that same evidence to reject Appellant’s reliance on the equipoise

doctrine.

      Finally, Appellant attempts to distinguish this matter from other child-

abuse cases wherein the first degree murder convictions were premised on

particularly gruesome acts. See e.g., Commonwealth v. Tharp, 830 A.2d

519 (Pa. 2003) (child restrained, starved to death, and body disposed of in

trash bags placed at roadside); Commonwealth v. Powell, 956 A.2d 406

(Pa. 2008) (beatings so severe as to alter appearance of child’s face, extensive

physical injuries inflicted on the child, and failure to timely seek medical

assistance); and, Commonwealth v. Chambers, 980 A.2d 35 (Pa. 2009)

(child beaten with an extension cord, thrown across the room, and slowly

suffocated). Citing extreme examples of ongoing abuse does not diminish or

excuse Appellant’s actions and in no way downgrades the suffering J.S.

endured.


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      In summation, we find support in the record for the trial court’s findings

regarding Appellant’s specific intent to kill. In doing so, we strenuously reject

Appellant’s assertion that “this case is a far cry away from a situation where

a defendant knowingly used deadly force, such as when he strangles the life

out of his victim.” Appellant’s Brief at 30 (emphasis omitted). The medical

evidence established that Appellant inflicted blunt force trauma to J.S.’s head,

a vital organ, by striking it against a hard flat surface multiple times. Appellant

then waited several hours to seek medical attention for the victim. Viewing

the evidence and reasonable inferences drawn therefrom in the light most

favorable to the Commonwealth, we discern no error in the trial court’s

conclusion that the evidence was sufficient to prove beyond a reasonable

doubt that Appellant acted with the specific intent to kill.

      Appellant   combines    his   third   and   fourth   issues,   assailing   the

Commonwealth’s actus-reus evidence as insufficient to support the EWC and

REAP convictions. Appellant’s Brief at 48. According to Appellant, because

the Commonwealth failed to prove that he “inflicted J.S.’s injuries[, i]t thus

likewise failed to show that [Appellant] recklessly engaged in conduct which

places or may place another person in danger of death or serious bodily injury”

and “engaged in a course of conduct of endangering the welfare of a child.”

Id. (quoting 18 Pa.C.S. §§ 2705 and 4304(b)(1)(ii)).

      “A parent, guardian or other person supervising the welfare of a child

under 18 years of age, or a person that employs or supervises such a person,


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commits an offense if he knowingly endangers the welfare of the child by

violating a duty of care, protection or support.” 18 Pa.C.S. § 4304(a)(1). If

the actor engaged in a course of conduct of endangering the welfare of a child

or created a substantial risk of death or serious bodily injury, the offense

constitutes a felony of the third degree. Id. at (b)(1)(ii), (iii). As noted, J.S.

was under Appellant’s care while Mother was at work.

      “A person commits a misdemeanor of the second degree if he recklessly

engages in conduct which places or may place another person in danger of

death or serious bodily injury.” 18 Pa.C.S. § 2705. The degree of culpability

required is recklessness, defined in 18 Pa.C.S. § 302, as follows:

      (b) Kinds of culpability defined.—

                                     * * *

      (3) A person acts recklessly with respect to a material element of
      an offense when he consciously disregards a substantial and
      unjustifiable risk that the material element exists or will result from
      his conduct. The risk must be of such a nature and degree that,
      considering the nature and intent of the actor’s conduct and the
      circumstances known to him, its disregard involves a gross
      deviation from the standard of conduct that a reasonable person
      would observe in the actor's situation.

18 Pa.C.S § 302(b)(3). “Recklessly endangering another person is a crime

‘directed against reckless conduct entailing a serious risk to life or limb out of

proportion to any utility the conduct might have.’”         Commonwealth v.

Vogelsong, 90 A.3d 717, 719 (Pa. Super. 2014) (citing Commonwealth v.

Rivera, 503 A.2d 11 (Pa. Super. 1985) (en banc)). Thus, to support a REAP

conviction, the evidence must establish that the defendant acted recklessly in

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a manner that endangered another person. 18 Pa.C.S. § 2705. A person acts

in a reckless manner when he consciously disregards a substantial and

unjustifiable risk. 18 Pa.C.S. § 302(b)(3).

      Disposing of Appellant’s EWC argument, the trial court observed that

the term “course of conduct” is used “to differentiate the penalties for single

and multiple endangering acts.” Trial Court Opinion, 1/22/19, at unnumbered

8 (citing Commonwealth v. Kelly, 102 A.3d 1025, 1031 (Pa. Super. 2014)).

According to the trial court, the evidence demonstrated that Appellant

“knowingly endangered the victim’s welfare and violated the duty of care and

protection” by punching J.S. in the chest and later hitting J.S.’s head multiple

times. Trial Court Opinion, 1/22/19, at unnumbered 8. The trial court also

rejected Appellant’s REAP argument: “This claim has already been refuted.

The evidence proved that [Appellant] caused fatal injuries to J.S. and then

failed to seek medical assistance until hours later.” Id.

      Again, our scrutiny of the record reveals support for the trial court’s

findings. Given our standard of review, we agree with the trial court that the

EWC and REAP evidence was sufficient to prove beyond a reasonable doubt

that Appellant engaged in a course of conduct that recklessly—and fatally—

endangered the child victim.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/26/2019




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