J-S07007-17



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA


                    v.

JOSHUA STEVEN PERRY

                         Appellant                   No. 585 MDA 2016


          Appeal from the Judgment of Sentence October 27, 2015
               In the Court of Common Pleas of York County
            Criminal Division at No(s): CP-67-CR-0007652-2014



BEFORE: BOWES, LAZARUS AND MUSMANNO, JJ.

MEMORANDUM BY BOWES, J.:                               FILED MAY 10, 2017

      Joshua Perry appeals from the judgment of sentence of sixty-six to

132 months incarceration imposed following his convictions for aggravated

assault and endangering the welfare of a child. We affirm.

      The following facts were presented at trial. The victim in this case is

L.L., an eighteen-month-old child. On October 20, 2014, Appellant, who was

dating L.L.’s mother K.M., watched the child while K.M. was at work.

Appellant told K.M. via text message that L.L. jumped out of his crib and fell.

N.T., 9/8-10/15, at 106. This incident occurred while K.M.’s grandfather was

present in the household, albeit in another room. Id. at 121. K.M. lowered

the mattress level in the crib to prevent future incidents. Id. at 129.
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        On October 23, 2014, K.M. took L.L. to a previously-scheduled

wellness check.       The pediatrician, Dr. James Sioma, testified that the

mother’s primary concern was L.L.’s biting and scratching behaviors. Id. at

175. L.L.’s vital signs were normal and Dr. Sioma did not note any other

issues. Id. at 177. L.L. was smiling, playful, alert, and active. Id. at 178.

        On October 24, 2014, L.L.’s father took custody for the weekend. Id.

at 144-47. The father testified that the child did not suffer any falls or other

injuries, and was generally normal. Id. at 146. On October 26, 2014, K.M.

regained custody of L.L. Id. at 147. That evening, she took the child to a

family birthday party where he played, ate cake, and showed no signs of

distress. Id. at 109.

        On October 28, 2014, K.M. left L.L. in Appellant’s care while she went

to work.1     No one else was in the home.       Id. at 111.    K.M. sent text

messages throughout the morning, with Appellant replying at approximately

11:00 a.m., stating that he was unpacking and moving things. Id. at 112.

At approximately 2:19 p.m., Appellant began calling.       At 2:30 p.m., K.M.

returned the call. Appellant told her that she needed to get to the hospital.

Id. at 112.     She learned that Appellant had taken L.L. to the emergency

room at Holy Spirit Hospital in his vehicle instead of calling for emergency

services.
____________________________________________


1
    On or about October 23, 2014, K.M. and Appellant moved in together.



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      Dr. Salvatore Alfano, the treating physician, testified that L.L.

presented in serious condition and required resuscitation. Appellant told Dr.

Alfano that he had put L.L. down for a nap and checked on him thirty

minutes later, whereupon he saw that the child was unresponsive.       Id. at

77.   Dr. Alfano sent L.L. for a CAT scan, which revealed a subdural

hematoma and bleeding of the brain. Id. L.L. was transferred to Hershey

Medical Center Pediatric Hospital.

      The local police department was alerted and Officer Scott Rood, an

officer located in the hospital’s jurisdiction of Cumberland County, responded

and spoke to Appellant. Id. at 85. Appellant told Officer Rood that he put

L.L. down for a nap between 1:30 and 2:00 p.m., and woke him up fifteen to

forty-five minutes later in order to go outside and play. Id. at 87. Appellant

stated that he put L.L. on the floor and turned to get a diaper; when he

turned around he saw that L.L. was unconscious. He then took L.L. to the

hospital. Id. at 88. During the conversation, Officer Rood learned that the

injury had occurred in York County and called their communication center.

      Detective William Haller, of the Northern York County Regional Police,

went to the hospital and spoke to Appellant, who again indicated that he had

put L.L. in his crib for a nap around 1:45 p.m. Id. at 186. Appellant stated

that he woke the child about fifteen minutes later in order to take him

outside to play.   Id.   Appellant gave the detective his cell phone and




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authorized a search of the residence.      Nothing of evidentiary value was

recovered. Id. at 191.

      Dr. Kent Hymel, a child abuse pediatrician at Hershey Medical Center,

was asked to consult for a possible abuse diagnosis and later testified as an

expert witness. He opined that the child’s injuries could not have resulted

from a fall from the crib.   Id. at 228.   Dr. Hymel reached this conclusion

after reviewing L.L.’s injuries, which included a subdural hemorrhage,

multilayered retinal hemorrhaging, and extensive swelling.       The swelling

required the removal of a bone flap to reduce the pressure. Id. at 227.

      Dr. Hymel also offered testimony regarding the expected onset of

symptoms associated with the type of traumatic injuries present in L.L.’s

brain. Dr. Hymel emphasized the clinical signs of distress exhibited by L.L.:

      [H]e did stop breathing and needed intubation and his heart rate
      stopped. That tells me he had distortions of deep structures at
      the base of the brain near where the spinal cord joins the base
      of the brain. The only – in the absence of penetrating trauma
      like a bullet going down to those structures, the only mechanism
      for closed head trauma, meaning nonpenetrating head trauma,
      would be head trauma that puts the head into violent motion on
      the neck.

Id. at 231. This led Dr. Hymel to opine that L.L. was injured “very shortly,

perhaps seconds, minutes before he became clearly and persistently ill.

That is the expectation when we see such definitive signs of moderate or

severe or even life-threatening injury.    They are not going to be normal

thereafter.”   Id. at 237.   The severity of L.L.’s injuries led Dr. Hymel to



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reject the notion that L.L.’s clinical signs of distress could be a delayed onset

of symptoms from an earlier traumatic injury. “If you are going to suffer a

head injury from a fall and later it’s going to cause you to nearly die, you are

not going to be completely asymptomatic between the time of that fall and

later when you deteriorate.” Id. at 229.

      This expert testimony was countered by Appellant’s expert, Dr. Robert

Zimmerman, the Chief of Pediatric Neuroradiology at Children’s Hospital of

Philadelphia. Id. at 294. He agreed that the injury was caused by trauma.

Id. at 317. Contrary to Dr. Hymel, Dr. Zimmerman opined that the injuries

could have resulted from an accident. Id. at 312. He also stated that Dr.

Hymel’s calculation of the timing was not necessarily correct. Id. at 307-08.

He described to the jury his review of multiple brain scans which were

progressively taken during the course of L.L.’s treatment.       Based on this

review, he opined that whatever traumatic event caused L.L.’s injuries could

have occurred anywhere from one day to three days before the 28th. Id. at

316. With respect to the onset of symptoms, Dr. Zimmerman stated that an

eighteen-month-old child could exhibit a period of lucid behavior or what

would appear to be asymptomatic activity following the traumatic event. Id.

at 306.   However, he conceded that lucid intervals are primarily seen in

cases where the hemorrhage was epidural, not subdural as in L.L.’s case.

Id. at 317.




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      The jury convicted Appellant of aggravated assault and endangering

the welfare of a child. Appellant timely filed post-sentence motions, which

were ultimately denied on April 1, 2016.     See Pa.R.Crim.P. 720(B)(3)(b).

The case is now ready for our review. Appellant raises two issues.

      1. The Commonwealth presented insufficient evidence to convict
         Appellant beyond a reasonable doubt of aggravated assault
         and endangering the welfare of [a] child, because the jury
         could only speculate among conflicting inferences regarding
         Appellant’s guilt given the testimony, including the medical
         testimony, presented.

      2. The trial court abused its discretion in failing to grant a new
         trial because the jury’s verdict is against the weight of the
         evidence and shocks the conscience given that the evidence
         was so weak and inconclusive that it required the jury to
         speculate about Appellant’s level of culpability, if any, and
         how the injuries to the minor child occurred.

Appellant’s brief at 5.

      Appellant’s first issue concerns the sufficiency of evidence to sustain

the convictions at both charges. Our standard of review is well-settled:

      [W]e examine whether the evidence admitted at trial, and all
      reasonable inferences drawn therefrom, viewed in the light most
      favorable to the Commonwealth as verdict winner, support the
      jury's finding of all the elements of the offense beyond a
      reasonable doubt. The Commonwealth may sustain its burden by
      means of wholly circumstantial evidence.

Commonwealth v. Doughty, 126 A.3d 951, 958 (Pa. 2015). Moreover,

      the Commonwealth need not establish guilt to a mathematical
      certainty. Any doubt about the defendant's guilt is to be resolved
      by the fact finder unless the evidence is so weak and
      inconclusive that, as a matter of law, no probability of fact can
      be drawn from the combined circumstances. The Commonwealth



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      may sustain its burden by means of wholly circumstantial
      evidence.

Commonwealth v. Lynch, 72 A.3d 706, 708 (Pa.Super. 2013) (en banc)

(internal citations and quotation marks omitted).

      Appellant was convicted of aggravated assault (serious bodily injury)

and endangering welfare of a child.        To prove aggravated assault, the

Commonwealth must show that Appellant “attempt[ed] to cause serious

bodily injury to another, or cause[d] such injury intentionally, knowingly or

recklessly under circumstances manifesting extreme indifference to the

value of human life[.]” 18 Pa.C.S. § 2702(a)(1). To establish endangering

the welfare of a child, the Commonwealth must establish that Appellant

supervised L.L. and “knowingly endanger[ed] the welfare of the child by

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

      Appellant’s challenge to both convictions rests on the same point: that

the Commonwealth failed to present sufficient evidence of causation.         His

argument is that nothing linked Appellant to L.L.’s injuries other than the

sheer speculation supplied by expert testimony. Primarily, Appellant notes

that Dr. Hymel’s testimony “merely speculates given his expertise in child

abuse that since an ‘explanation was never provided’ about the injury, the

only conclusion must be that it was the result of abuse.       However, the

absence of explanation does not prove the conclusion of child abuse without

the actual existence of evidence.” Appellant’s brief at 22.



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      We disagree. Crediting the Commonwealth’s expert testimony, as we

must when reviewing a challenge to the sufficiency of the evidence, we

accept that an accidental cause for the injuries was eliminated. Thus, the

only remaining explanation is an intentional act.           Significantly, the

Commonwealth’s expert addressed the relationship between the severity of

L.L.’s injuries and when the traumatic event must have occurred.          The

Commonwealth is entitled to prove its case through circumstantial evidence,

and, accepting Dr. Hymel’s testimony regarding timing as true, the injury

occurred “very shortly, perhaps seconds, minutes before he became clearly

and persistently ill.”   N.T., 9/8-10/15, at 237.   “The opinion of a medical

expert witness rendered to the requisite degree of certainty is itself

evidence.”   Commonwealth v. Martin, 101 A.3d 706, 729 (Pa. 2014)

(citing Commonwealth v. Meals, 912 A.2d 213, 223-24 (Pa. 2006)).

Additionally, L.L.’s mother testified that she left for work at 5:30 a.m. and

Appellant was the only person in the house.     Id. at 111. Thus, Appellant

was the only person who could have inflicted the injuries during the relevant

timeframe.    Furthermore, Dr. Hymel noted that L.L.’s ear showed signs of

bruising, which he deemed significant since children rarely, if ever, bruise

their ear in an accidental fall. Id. at 233-34. Taken together, this evidence

serves to establish the necessary causal link. See also Commonwealth v.

Passarelli, 789 A.2d 708 (Pa.Super. 2001), affirmed, 825 A.2d 628 (Pa.




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2003) (reviewing sufficiency of evidence where Commonwealth and defense

offered competing expert testimony regarding shaken baby syndrome).

         Appellant’s response to the timing issue is that the “testimony does

not address the possibility that the child either accidentally, or intentionally

due to the recent history of anxiety, smacked his head into the side of his

crib.”    Appellant’s brief at 21.    Contrary to this assertion, Dr. Hymel did

address this point and rejected the theory that L.L.’s injury was self-inflicted.

         Q.   And could [L.L.] have inflicted this [injury] on himself?

         A.   Let’s presume – I can’t think how [L.L.] would have gross
              motor skills to put himself in a position of doing this to
              himself. I guess it’s conceivable an 18-month-old could fall
              from a third story window or a much more severe fall could
              maybe approach this level of severity. But someone would
              have been there to pick him up.

N.T., 9/8-10/15, at 230.

         Finally, Appellant notes that Dr. Hymel acknowledged on cross-

examination that he was unaware that the child vomited after falling from

his crib on October 20, a fact admitted by the child’s mother and noted in

Dr. Alfano’s medical records. Id. at 81. Appellant points out that Dr. Hymel

listed vomiting as one of the symptoms that can accompany head injury.

Id. at 229.        Appellant suggests that this proves L.L. was not wholly

asymptomatic and therefore undercuts the expert opinion.             However, Dr.

Hymel never indicated that learning this fact changed his opinion in any way,




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and Appellant did not ask him that question.2         Thus, the evidence was

sufficient to support the jury’s determination that Appellant intentionally

inflicted L.L.’s injuries. Since causation is the only aspect of the convictions

that Appellant challenges, we reject his sufficiency challenges.

       We now examine Appellant’s second claim, which attacks the trial

court’s denial of his weight of the evidence claim. Our standard of review is

well-settled. We review the exercise of the trial court's discretion in ruling

on the weight claim, not the underlying question of whether the verdict is

against the weight of the evidence. Commonwealth v. Leatherby, 116

A.3d 73, 82 (Pa.Super. 2015) (citing Commonwealth v. Brown, 23 A.3d

544, 558 (Pa.Super. 2011)). The trial court should grant a new trial “only

when the verdict is so contrary to the evidence that it shocks one's sense of

justice and the award of a new trial is imperative so that right may be given

another opportunity to prevail.”          Commonwealth v. Rayner, 153 A.3d

1049, 1056 (Pa.Super. 2016) (citation omitted). “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.” Leatherby, supra at

____________________________________________


2
  We note that Dr. Hymel stated, “I have only ever heard of children being
symptomatic and some of those with less severe trauma may have been
only mildly symptomatic, irritability, and vomiting.” N.T., 9/8-10/15, at
249-50 (emphasis added).



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82. We can only reverse for an abuse of discretion. “Discretion is abused

when 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. Widmer, 744 A.2d 745, 753

(Pa. 2000) (citation omitted).

      Instantly, Appellant’s weight argument is the same as his sufficiency

argument, in that he avers the jury was required to credit his expert’s

testimony.

      The arguments and reasons outlined in the [sufficiency of the
      evidence] section are equally applicable to a weight of the
      evidence claim. The Commonwealth’s evidence simply fails to
      connect the injur[y] to [Appellant]’s conduct and leaves open the
      possibility that the injury occurred while the child was in the
      custody of his biological father, or at [the] birthday party.

Appellant’s brief at 26.

      In Commonwealth v. Edwards, 903 A.2d 1139, 1148 (Pa. 2006),

our Supreme Court addressed a weight claim where the appellant essentially

repeated a sufficiency argument.

      In an argument subsumed within his sufficiency claim, appellant
      also contends that the verdicts for first-degree murder and
      burglary were against the weight of the evidence. Although
      appellant cites to the standard for reviewing a weight claim, he
      does not forward an argument relating to the standard. Instead,
      the only argument forwarded, to the extent one is made at all, is
      the one summarized above respecting sufficiency. Thus,
      appellant does not say why, or in what respect, the verdict was
      against the weight of the evidence.



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Id. at 1148. The same is true here. Appellant explicitly repeats the same

arguments he advanced in attacking the sufficiency of the evidence.        In

reviewing a weight claim, we are not required to view the evidence in the

light most favorable to the verdict winner.   Commonwealth v. Widmer,

744 A.2d 745, 751 (Pa. 2000) (citing Tibbs v. Florida, 457 U.S. 31, 38,

n.11 (1982)). However, the trial judge is called upon to determine whether,

“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.” Id. at 752.

      Appellant’s expert testimony does establish that the injury may have

occurred at some other time. But the trial court, which sat and heard all of

the evidence, did not find the jury’s rejection of Dr. Zimmerman’s testimony

to rise to the level of shocking its own sense of justice. Since the jury was

free to reject or credit such expert testimony as it saw fit, Martin, supra,

we do not find that the trial court was manifestly unreasonable in rejecting

the weight claim. Hence, we do not find the court abused its discretion.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/10/2017


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