J   -S29038-17
                                  2017 PA Super 137


    COMMONWEALTH OF PENNSYLVANIA                :   IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA

                 v.


    EDWARD GOLPHIN

                      Appellant                 :   No. 1351 EDA 2016

              Appeal from the Judgment of Sentence April 8, 2016
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0005374-2014


BEFORE:      LAZARUS, SOLANO, JJ., and STEVENS, P.J.E.*

OPINION BY STEVENS, P.J.E.:                                    FILED MAY 08, 2017

        This is an appeal from the judgment of sentence entered in the Court

of Common Pleas of Philadelphia County following Appellant's conviction by               a


jury   on the charges of third-degree murder, conspiracy, aggravated assault,

and endangering the welfare of          a   child ("EWOC").1   After   a   careful review,

we affirm.

        Following the death of the four -year -old victim, S.B., Appellant was

arrested, and he proceeded to       a   jury trial at which    he was represented by




1   18 Pa.C.S.A. §§ 2502(c), 903, 2702(a), and        4304(a)(1), respectively.

*   Former Justice specially assigned to the Superior Court.
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counsel.2 The Honorable Genece Brinkley has summarized in detail the

testimony presented at trial, and her factual findings are supported by the

record. Trial Court Opinion, filed 9/2/16, at 3-29.         Thus, we set forth only

those background facts necessary for an understanding of this appeal.

      The evidence reveals that Josephita Brown and her two children, Sean

B. and   S.B., lived with her paramour, Appellant. At some point, six -year -old

Sean B.     reported to his grandmother that Appellant had hit him, and

thereafter, his grandmother gained custody of him. Id. at 4-5.            However,

S.B. continued to live with Josephita and Appellant, who subsequently had         a


child of their own, A.B.   Id. at   5


      In May of 2013, S.B. suffered         a    broken leg, and Josephita provided

inconsistent statements as to how the fracture occurred.          Id. at 5-6. S.B.'s
daycare provider noticed that S.B. also had several deep lacerations to her

back, and Josephita provided inconsistent statements as to how the injuries

occurred.   Id. at   6, 14-15.   The Department of Human Services received        a


report of abuse concerning S.B. in June of 2013, and they put into place          a


safety plan, which required Appellant's cousin to supervise Josephita's and

Appellant's interactions with S.B.      Id. at   6.




2 S.B.'s mother, Josephita Brown, was also charged in connection with the
death of S.B. She pled guilty to the charges of EWOC, conspiracy, and
involuntary manslaughter; the trial court sentenced her to an aggregate of
four years to eight years in prison.


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        During the early morning hours of July 16, 2013, Josephita took an

unresponsive S.B. to the Children's Hospital of Philadelphia ("CHOP"), where

S.B. was pronounced dead.             Id. at   10. A subsequent autopsy revealed that

S.B. died as   a   result of internal blood loss caused by         a   laceration to her liver.

Id. at   19.     At the time of her death, S.B. had additional new and pre-

existing injuries, including scars, scrapes, bruises, scratches, bite marks,                  a


fractured tibia,    a   tear to her small bowel mesentery, 11 fractured ribs, and             a


ruptured eardrum. Id. at 19-23.

        Upon questioning, Josephita informed the police that she observed

Appellant punching and kicking S.B. during the late evening hours of July 15,

2013, and he then left the house.               Id. at    9.   Upon his return, Appellant

began beating S.B. again, and Josephita could hear S.B.'s screams and

noticed that she had an adult bite mark on her lower lip.                          Id. at   10.

Appellant again left the house, at which time S.B. was no longer breathing.

Id.    When Appellant later returned, Josephita told him that S.B. was dead,

and Appellant took them to CHOP.                Id. Josephita admitted          to police that

S.B. had broken her leg in March of 2013 when Appellant pushed her down                       a


flight of stairs.       Id. at   9.   She also admitted that S.B.'s back lacerations

resulted from Appellant beating her with            a   belt buckle.   Id.
        At the conclusion of trial, on February 2, 2016, the jury found

Appellant guilty of the offenses indicated supra, and on April 8, 2016, the

trial court sentenced Appellant to 20 to 40 years                in prison   for third-degree


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murder, 20 to 40 years      in prison       for conspiracy, 10 to 20 years      in prison   for

aggravated assault, and     21/2   to   5   years in prison for EWOC. The trial court

imposed the sentences consecutively, resulting in an aggregate sentence of

521/2   years to 105 years in prison.             Appellant did not file   a   post -sentence

motion; however, represented by new counsel, Appellant filed this timely

appeal on April 28, 2016. All Pa.R.A.P. 1925 requirements have been met.

        Appellant presents the following issues for our review:

        I.     Is Appellant entitled to an arrest of judgment with regard
               to his convictions for third-degree murder, criminal
               conspiracy, aggravated assault, and [EWOC] since the
               evidence is insufficient to sustain these convictions as the
               Commonwealth failed to prove Appellant's guilt of these
               crimes beyond a reasonable doubt?
        II.    Is Appellant entitled to a new trial as a result of the trial
               court's pretrial ruling that granted the Commonwealth's
               motion to admit evidence of other crimes and/or bad acts?
        III.   Is Appellant entitled to a new trial as a result of the trial
               court's pretrial ruling that granted the Commonwealth's
               motion to admit the prior statements of [Sean] B.?
        IV.    Is Appellant entitled to a new trial as a result of the trial
               court's failure to grant Appellant's challenges for cause to
               prospective jurors number twelve and forty-two?
        V.     Is Appellant entitled to       a   new trial as
                                                      result of the trial
                                                                 a
               court's restriction on Appellant's cross-examination of
               Commonwealth witness Tracey Cobb concerning a false
               allegation of rape made by [co-conspirator] Josephita
               Brown?
        VI.    Is Appellant entitled to a new trial as a result of the trial
               court's denial of Appellant's motion for a mistrial after the
               prosecutor commented on redirect examination of
               Commonwealth witness Dr. Lawrence Dobrin that she had
               to address "some of the irrelevancies we were just
               subjected to for the past 20 minutes"?



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        VII.   Is Appellant entitled to be resentenced since the sentences
               imposed for aggravated assault and [EWOC] merged with
               the sentence imposed for third-degree murder?

Appellant's Brief at 5-6.

        In his first issue, Appellant challenges the sufficiency of the evidence

supporting his convictions.      Specifically, Appellant contends the evidence

was insufficient to prove that (1) Appellant had the requisite mens rea for

third-degree murder, (2) Appellant entered into an agreement with Josephita

to commit third-degree murder as is required for conspiracy, and (3)

Appellant was S.B.'s guardian, supervised S.B., or otherwise violated any

duty of care as required for EWOC.3

               The standard we apply in reviewing the sufficiency of the
        evidence is whether viewing all the evidence admitted at trial in
        the light most favorable to the verdict winner, there is sufficient
        evidence to enable the fact -finder to find every element of the
        crime beyond a reasonable doubt. In applying [the above] test,
        we may not weigh the evidence and substitute our judgment for
        the fact -finder.   In addition, we note that the facts and
        circumstances established by the Commonwealth need not
        preclude every possibility of innocence. Any doubts regarding a
        defendant's guilt may be resolved by the fact -finder unless the
        evidence is so weak and inconclusive that as a matter of law no
        probability of fact may be drawn from the combined
        circumstances. The Commonwealth may sustain its burden of
        proving every element of the crime beyond a reasonable doubt
        by means of wholly circumstantial evidence. Moreover, in
        applying the above test, the entire record must be evaluated and
        all evidence actually received must be considered. Finally, the


3 Appellant presents no specific sufficiency argument as it relates to his
aggravated assault conviction; however, as the trial court has aptly
reasoned, the evidence was sufficient to sustain this conviction. See Trial
Court Opinion, filed 9/2/16, at 36-37.


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        [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.
              Further, in viewing the evidence in the light most favorable
        to the Commonwealth as the verdict winner, the court must give
        the prosecution the benefit of all reasonable inferences to be
        drawn from the evidence.

Commonwealth v. Harden, 103 A.3d 107,               111 (Pa.Super. 2014) (citation

and quotation omitted).

              Third-degree murder is defined [as] all other kinds of
        murder other than first degree murder or second degree murder.
        The elements of third-degree murder, as developed by case law,
        are a killing done with legal malice.
              Malice exists where there is  particular ill -will, and also
                                                a
        where there is a wickedness of disposition, hardness of heart,
        wanton conduct, cruelty, recklessness of consequences and a
        mind regardless of social duty.

Commonwealth v. Marquez, 980 A.2d 145, 148 (Pa.Super. 2009) (en
banc) (quotations and quotation marks omitted).               "Malice   is   established

where an actor consciously disregard[s] an unjustified and extremely high

risk    that his   actions   might   cause      death   or   serious    bodily   harm."

Commonwealth v. Devine, 26 A.3d 1139, 1146 (Pa.Super. 2011)
(quotation and quotation marks omitted). "Malice may be inferred by

considering the totality of the circumstances." Commonwealth v. Dunphy,

20 A.3d 1215, 1219 (Pa.Super. 2011) (citation omitted).

                                                    trier of fact must
              To convict a defendant of conspiracy, the
        find that: (1) the defendant intended to commit or aid in the
        commission of the criminal act; (2) the defendant entered into
        an agreement with another (a "co-conspirator") to engage in the
        crime; and (3) the defendant or one or more of the other co-
        conspirators committed an overt act in furtherance of the agreed

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        upon crime. 18 Pa.C.S.[A.] § 903. The essence of a criminal
        conspiracy, which is what distinguishes this crime from
        accomplice liability, is the agreement made between the co-
        conspirators.

              "[M]ere association with the perpetrators, mere presence
        at the scene, or mere knowledge of the crime is insufficient" to
        establish that a defendant was part of a conspiratorial
        agreement to commit the crime. There needs to be some
        additional proof that the defendant intended to commit the crime
        along with his co-conspirator. Direct evidence of the defendant's
        criminal intent or the conspiratorial agreement, however, is
        rarely available. Consequently, the defendant's intent as well as
        the agreement is almost always proven through circumstantial
        evidence, such as by "the relations, conduct or circumstances of
        the parties or overt acts on the part of the co-conspirators."
        Once the trier of fact finds that there was an agreement and the
        defendant intentionally entered into the agreement, that
        defendant may be liable for the overt acts committed in
        furtherance of the conspiracy regardless of which co-conspirator
        committed the act.

Commonwealth v. Murphy, 577              Pa.   275, 292, 844 A.2d 1228, 1238

(2004) (citations and quotations omitted).

        In the case sub judice, in finding no merit to Appellant's sufficiency of

the evidence claims as it relates to his convictions for third-degree murder

and conspiracy, the trial court indicated the following:

               [Dr. Samuel Gulino, the Chief Medical Examiner,] testified
        that S.B. died from blood loss caused by    a laceration to her liver
        which would have been inflicted sometime between 11:30 p.m.
        on July 15, 2013, and 1:25 a.m. on July 16, 2013.             Gulino
        further testified that such an injury was often associated with a
        clear and obvious incident, such as a car accident, and would not
        have resulted from an everyday injury, such as an accidental
        blow to the abdomen. Gulino testified that S.B. also suffered a
        tear to her small bowel mesentery, which indicated a very strong
        blow that was able to transmit force to the deep structures of
        S.B.'s abdomen. Gulino further testified that S.B. had numerous
        other injuries, including but not limited to, 11 broken ribs, a tibia

                                        -7
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        which had been fractured and then re -fractured, multiple bite
        marks, and scarring across her back.

Trial Court Opinion, filed 9/2/16, at 32.

        Moreover, the trial court indicated:

              Josephita testified that, on the day S.B. was killed,
        [Appellant] punched and kicked S.B. and that, after [Appellant]
        had stopped beating her, S.B. was no longer breathing.
        Josephita further testified that [Appellant] bit S.B. on her bottom
        lip during the beating and that S.B. was dead by the time
        [Appellant, who had left after the beating,] returned home and
        took them to the hospital. Josephita testified that [Appellant]
        frequently punched and kicked S.B., and had broken her leg
        when he pushed her down the stairs. Josephita further testified
        that [Appellant] hit S.B. with his belt buckle, causing the injuries
        to her back, but she did not stop [Appellant] from abusing S.B.
        because she was afraid of him and felt ashamed.
                                        ***
              [Head Start Learning Tree employee, Ashamalanda
        Rooney,] testified that in June 2013 she noticed S.B. had
        extensive, deep wounds to her back which were consistent with
        being hit by a belt and she photographed the injuries. Rooney
        further testified that S.B. had broken her leg and had gotten the
        cast off her leg the week before she started at her daycare.
        Rooney stated that S.B. had a slight limp when the cast initially
        came off but had a much more severe limp when she came back
        to daycare the following Monday, to the point where she was in
        pain while sitting down....[Detective Kimberly Organ] testified
        that [Appellant's] explanations for where he was at the time of
        the murder were not credible and were directly contradicted by
        the information taken from Josephita's cell phone....
               [T]here was a great deal of evidence proving that
        [Appellant] engaged in a pattern of abuse against S.B.,
        culminating in an episode wherein [Appellant] hit S.B. so hard
        that he lacerated her liver and small bowel mesentery, causing
        her to bleed to death. In doing so, [Appellant] displayed the
        requisite level of malice, that is wickedness of disposition,
        hardness of heart, recklessness of consequences, and a mind
        regardless of social duty. At the time of her death, S.B. was
        only [four] -years -old and weighed only 36 pounds. Nonetheless,
        [Appellant] subjected her to a prolonged torture and ultimately

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        killed her in an attack of such ferocity that Gulino likened her
        injuries and impact upon her body to having been hit by a car.
                                      ***
               [Commonwealth witness Tracey Cobb, who is Josephita's
        mother,] testified that [Appellant] lied to her about how S.B.
        broke her leg while Josephita remained silent.               Multiple
        witnesses testified that Josephita lied and offered numerous
        explanations for S.B.'s various injuries....Josephita testified that
        she beat S.B. with the handle of a broom and that she told S.B.
        to lie about how she sustained the injuries. Rooney testified that
        both [Appellant] and Josephita lied to her about how S.B.
        sustained the injuries to her back. Thus, the evidence tended to
        show that both [Appellant] and Josephita physically abused S.B.
        over the course of months and entered into an agreement with
        each other to lie about the course of S.B.'s injuries so that they
        could continue to abuse her. S.B.'s eventual death at the hands
        of [Appellant] was a natural and probable consequence of that
        agreement to cover up her abuse.

Id. at 32-33, 35-36.
        We agree with the trial court's reasoning in this regard, and we reject

Appellant's challenges to the sufficiency of the evidence with regard to his

convictions for third-degree murder and conspiracy.        See Murphy, supra;

Devine, supra.

        Additionally, we likewise reject Appellant's claim the evidence was

insufficient to prove that he was S.B.'s guardian, responsible for her

supervision, or otherwise violated any duty of care as required for EWOC.

        In Pennsylvania,   "[a]   parent, guardian, or other person supervising

the welfare of    a   child under 18 years of age...commits an offense if he

knowingly endangers the welfare of the child by violating the duty of care,

protection, or support.' Commonwealth v. Leatherby, 116 A.3d 73, 81


                                        -9
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(Pa.Super. 2015) (quoting 18 Pa.C.S.A.                         §   4304(a)).       As the trial court

indicated herein,

           [m]ultiple witnesses testified that [Appellant] lived with S.B. and
           her mother, Josephita, in multiple homes across South and
           Southwest Philadelphia. Cobb testified that, after Josephita and
           [Appellant] moved in together, Josephita had a baby, A.G., who
           they raised with S.B. [Appellant's cousin] testified that S.B.
           referred to [Appellant] as "Daddy." Rooney testified that
           [Appellant] would occasionally pick S.B. up from daycare. Thus,
           the evidence showed that [Appellant] was in a father -figure
           position to S.B. and had a corresponding duty of care.

Trial Court Opinion, filed 9/2/16, at 38.

           As this Court has previously stated,                "[i]n   an age when nontraditional

living arrangements are commonplace, it is hard to imagine that the

common sense of the community would serve to eliminate adult persons

residing with         a   non -custodial child from the scope of           a    statute protecting the

physical and moral welfare of children." Leatherby,                                 116 A.3d       at 81

(quotation omitted). Accordingly, we find no merit to Appellant's sufficiency

claim with regard to his conviction for EWOC.

           In his next issue, Appellant contends that he                  is   entitled to   a   new trial

as     a     result       of   the   trial        court's   pretrial   ruling     that   granted      the

Commonwealth's motion to admit evidence of Appellant's other crimes

and/or bad acts, i.e., Appellant's prior abuse of S.B., A.G., Sean B., and

Josephita.       With respect to the pretrial ruling by the trial court as to the

admissibility of the evidence, the following standard of review applies:

           On appeals challenging an                 evidentiary ruling of the trial court,
           our standard of review            is   limited. A trial court's decision will not

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        be reversed     absent a clear abuse of discretion.    Abuse of
        discretion is not merely an error of judgment, but rather 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. King, 959 A.2d 405, 411 (Pa.Super. 2008) (citation,
quotation, and quotation marks omitted).

        It   is   well settled that:

        Generally, evidence of prior bad acts or unrelated criminal
        activity is inadmissible to show that a defendant acted in
        conformity with those past acts or to show criminal propensity.
        Pa.R.E. 404(b)(1). However, evidence of prior bad acts may be
        admissible when offered to prove some other relevant fact, such
        as motive, opportunity, intent, preparation, plan, knowledge,
        identity, and absence of mistake or accident. Pa.R.E. 404(b)(2).
        In determining whether evidence of other prior bad acts is
        admissible, the trial court is obliged to balance the probative
        value of such evidence against its prejudicial impact.

Commonwealth v. Aikens, 990 A.2d 1181, 1185 (Pa.Super. 2010)
(quotation and citation omitted). Additionally, evidence of prior crimes and

bad acts may be admitted where the acts were part of a chain or sequence

of events that formed the history of the case and were part of its natural

development.            Commonwealth v. Powell, 598      Pa.   224, 956 A.2d 406

(2008).

        In explaining the reason for its pretrial ruling, the trial court indicated

the following:

              With regard to the prior instances of abuse between
        [Appellant] and S.B., the evidence was admissible both to
        establish the chain of events and pattern of abuse that
        eventually led to S.B.'s death as well as to show both
        [Appellant's] intent and malice towards S.B. As to the evidence
J   -S29038-17


        of prior acts of abuse towards A.G. and Sean [B.], the evidence
        was admissible both to show [Appellant's] absence of mistake in
        causing S.B.'s death as well as to show a common scheme or
        plan. In all three instances, the victim was a young child in a
        filial relationship with [Appellant] that [Appellant] punched,
        scratched and/or hit.      Furthermore, the instances of abuse
        towards all three children took place [close in time] with one
        another. With regard to the prior instances of abuse involving
        Josephita, the evidence was admissible to explain why Josephita
        did not report [Appellant's] abuse of S.B. to any authorities and
        why she lied to multiple individuals about the cause of S.B.'s
        injuries and eventual death, [thus also forming the chain of
        events leading to S.B.'s death].

Trial Court Opinion, filed 9/2/16, at 42.

        Further, in balancing the probative value of the evidence against its

prejudicial impact, the trial court noted that the trial court    is   not "required to

sanitize the     trial   to   eliminate   all   unpleasant   facts from     the jury's

consideration[.]" Id. at 40 (quotation marks and quotation omitted).                We

find no abuse of discretion and conclude the trial court properly admitted the

evidence at issue.4




4 Appellant also contends the trial court erred in admitting evidence that
Appellant punched Daren Taylor during a graduation ceremony. We agree
with the trial court that, assuming, arguendo, Appellant has not waived this
claim, and the evidence should not have been admitted, such error was
harmless. "The sole reference to [Appellant's] prior act involving Daren
Taylor occurred during [Ms.] Cobb's testimony. Given the otherwise
overwhelming amount of evidence which implicated [Appellant] in S.B.'s
death, such a de minimis and isolated reference to an unrelated incident is
not likely to have contributed to the jury's verdict." Trial Court Opinion, filed
9/2/16, at 42. See Commonwealth v. Robinson, 554 Pa. 293, 721 A.2d
344 (1998) (defining harmless error).



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       In his next issue, Appellant contends he   is   entitled to   a    new trial as   a


result of the trial court's pretrial ruling that granted the Commonwealth's

motion to admit the prior out -of -court statements of Sean          B.       In the case

sub judice, the Commonwealth filed      a    pretrial motion seeking to permit

Detective Laura Hammond and Ms. Cobb to testify about statements made

to them by Sean B. regarding Appellant's assaultive conduct towards him.5

The Commonwealth asserted that such testimony would be admissible under

the "tender years" hearsay exception pursuant to 42 Pa.C.S.A.             §   5985.1.

       The trial court held an in camera hearing on December 17, 2015, and

held the matter under advisement.      Subsequently, at trial, the trial court

granted the Commonwealth's motion and permitted the witnesses to testify

about Sean B.'s statements.       See N.T., 1/27/16, at 67-68 (granting

motion); 98-105 (Detective Hammond testifying about interview with Sean

B.   wherein he described assaultive behavior by Appellant); 119-20 (Ms.

Cobb testifying about statements Sean B. said to her regarding Appellant's

assaultive behavior). Appellant contends that this was error since Sean B.'s

prior statements were not relevant and did not have          a   sufficient indicia of


5
   Forinstance, the Commonwealth indicated, and Ms. Cobb later testified,
that, prior to S.B.'s death, Sean B. told Ms. Cobb that Appellant "hit him."
See N.T., 1/27/16, at 119-20. Further, Detective Hammond testified that,
as part of the investigation into S.B.'s death, she interviewed Sean B., who
told her that Appellant had "hit him in the head," and on a different
occasion, scratched him under his left eye, causing Sean B. to say "ouch."
N.T., 1/27/16, at 97-104.


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reliability, including the lack of spontaneity, the lack of terms expected of                a


child of his age, and the existence of              a   motive to fabricate.

        In reviewing the admissibility of evidence, "an appellate court may

only reverse upon           a   showing that the trial court abused its discretion. An

abuse of discretion is not               a   mere error in judgment but, rather, involves

bias,    ill   will,       partiality,       prejudice,    manifest    unreasonableness,     or

misapplication of law." Commonwealth v. Cox, 115 A.3d 333, 336

(Pa.Super. 2015) (en banc) (citations omitted).

        The Pennsylvania Rules of Evidence define hearsay as "a statement

that (1) the declarant does not make while testifying at the current trial or

hearing; and (2)       a    party offers into evidence to prove the truth of the matter

asserted in the statement." Pa.R.E. 801(c). "Hearsay is not admissible

except as provided by [the Pennsylvania Rules of Evidence], by other rules

prescribed by the Pennsylvania Supreme Court, or by statute." Pa.R.E. 802.

        The Tender Years Act, 42 Pa.C.S.A.                 §   5985.1, creates an exception to

the hearsay rule for young victims and witnesses.                      Specifically, the tender

years exception provides for the admissibility of certain statements that

otherwise may be considered hearsay, as follows:

        (a) General rule.-An out -of -court statement made by a child
        victim or witness, who at the time the statement was made was
        12 years of age or younger, describing any of the offenses
        enumerated in 18 Pa.C.S. Chs....27 (relating to assault)..., not
        otherwise admissible by statute or rule of evidence, is admissible
        in evidence in any criminal or civil proceeding if:
              (1) the court finds, in an in camera hearing, that the
        evidence is relevant and that the time, content and
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        circumstances of the statement provide sufficient indicia of
        reliability; and
               (2) the child either:
                     (i) testifies at the proceeding; or
                     (ii)   is   unavailable as   a   witness.

42 Pa.C.S.A.     §   5985.1(a).

        A   statement admitted under the tender years exception must possess

sufficient indicia of reliability, as determined from the time, content, and

circumstances of its making.               Commonwealth v. O'Drain, 829 A.2d 316,
320 (Pa.Super. 2003) (citation omitted). As our Supreme Court has opined:

        The [Tender Years Act] concerns the admissibility of out -of -court
        statements made by a child victim or witness to third parties.
        The admissibility of this type of hearsay is determined by
        assessing the particularized guarantees of trustworthiness
        surrounding the circumstances under which the statements were
        uttered to the person who is testifying. To determine whether a
        child's out -of -court statements are admissible under the [Tender
        Years Act], a trial court must assess the relevancy of the
        statements and their reliability in accordance with the test
        enunciated in Idaho v. Wright, [497 U.S. 805 (1990)].
        Although the test is not exclusive, the most obvious factors to be
        considered include the spontaneity of the statements,
        consistency in repetition, the mental state of the declarant, use
        of terms unexpected in children of that age and the lack of a
        motive to fabricate.

Commonwealth v. Walter, 625                       Pa.   522, 539, 93 A.3d 442, 451 (2014)

(quotation marks and quotations omitted).

        In the case sub judice, Sean B. testified at trial. Therefore, the only

issue was whether the              Walter test was satisfied. In determining that it was
satisfied by the Commonwealth, the trial court explained as follows:



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                Sean [B.] was 6 years old at the time he gave statements,
         [he] testified at trial[,] and his statements described an assault
         by [Appellant]. Moreover, his statements were relevant, as they
         showed [Appellant's] common scheme of abusing children under
         his care and [the] absence of mistake in S.B.'s death. [Sean
         B.'s] statements were reliable, consistent, spontaneous,
         contained terms expected to be used by a child of his age, and
         indicated a lack of motive to fabricate.

Trial Court Opinion, filed 9/2/16, at 44.

         We find no abuse of discretion.    See Cox, supra. In this regard, we

conclude that Sean B.'s statements of Appellant's assaultive conduct towards

him were relevant for the reasons provided by the trial court.               Further, the

facts amply demonstrate that the time, content, and circumstances of Sean

B.'s statements provided sufficient indicia of reliability.

         For instance, Sean B. made his statements initially spontaneously to

Ms. Cobb, who was his         grandmother, prior to the death of S.B.             Ms. Cobb

then responded appropriately by discussing the matter with Josephita and

filing   a   private criminal complaint against Appellant. N.T., 1/27/16, 120-23.

Moreover, Sean        B.   later repeated the statements to Detective Hammond

after the death of S.B. Further, Sean       B. used age -appropriate    language and

indicated no motive to fabricate.        Accordingly, we conclude the trial court

properly ruled that Sean B.'s prior out -of -court statements of abuse by

Appellant were admissible under the tender years hearsay exception. See

Walter, supra.
         In his next issue, Appellant contends that he    is   entitled to    a   new trial

as a result of the     trial court's failure to grant his challenges for cause as to

                                         - 16 -
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prospective jurors number 12 and 42.                Appellant contends that the

questioning of both prospective jurors during voir dire revealed that the

jurors could not render   a   fair, impartial, and unbiased verdict.

           A criminal defendant's   right to an impartial jury is explicitly
     guaranteed by Article I, section 9 of the Pennsylvania
     Constitution. The jury selection process is crucial to the
     preservation of that right....
            It must be remembered the purpose of the voir dire
     examination is to provide an opportunity to counsel to assess the
     qualifications of prospective jurors to serve.        It is therefore
     appropriate to use such an examination to disclose fixed opinions
     or to expose other reasons for disqualification. Thus, the inquiry
     must be directed at ascertaining whether the venireperson is
     competent and capable of rendering a fair, impartial, and
     unbiased verdict.      The law also recognizes that prospective
     jurors were not cultivated in hermetically sealed environments
     free of all beliefs, conceptions, and views. The question relevant
     to a determination of qualification is whether any biases or
     prejudices can be put aside upon the proper instruction of the
     court.
            A challenge for cause to service by a prospective juror
     should be sustained and that juror excused where that juror
     demonstrates through his conduct and answers a likelihood of
     prejudice. The decision whether to disqualify a venireman is
     within the discretion of the trial court and will not be disturbed
     on appeal absent a palpable abuse of that discretion.
            Stated another way, the test of disqualification           is   the
     juror's ability and willingness to eliminate the influence of his
     scruples and render a verdict according to the evidence. This
     determination is to be made by the trial judge based on the
     juror's answers and demeanor and will not be reversed absent a
      palpable abuse of discretion.




                                        - 17 -
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Commonwealth v. Penn, 132 A.3d 498, 502 (Pa.Super. 2016) (footnote,
citations, quotation marks, and quotations omitted).6

        Here, the record reveals Appellant challenged prospective jurors 12

and 42 for cause.    Specifically, Appellant challenged prospective juror 12 for

cause after the juror indicated that he was not sure whether he could be

fully objective given the fact that the victim was      a   young child.    N.T.,

1/26/16, at 60-63. Appellant challenged prospective juror 42 for cause after

the juror indicated that he believed it would be strange if    a   defendant did

not attempt to defend himself in trial given the nature of the charges.    Id. at
174-80.      After the trial court denied both challenges for cause, Appellant

used peremptory challenges to strike both prospective jurors.         Id. at 64,
181.

        In explaining the reasons it did not grant Appellant's challenges for

cause as to prospective jurors 12 and 42, the trial court indicated the

following:

               Although both jurors initially expressed opinions which
        indicated a possible difficulty in weighing the evidence and
        arriving at a verdict impartially, their answer to subsequent
        questioning by [the trial court] showed their willingness to

6
  We note that a challenge for cause should also be granted "when the
potential juror has such a close relationship, be it familial, financial or
situational, with parties, counsel, victims, or witnesses, that the court will
presume the likelihood of prejudice.' Penn, 132 A.3d at 502 n.4 (quotation
omitted). However, there is no indication that the prospective jurors at
issue maintained a relationship such that the court must presume a
likelihood of prejudice.


                                      - 18 -
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     eliminate the influence of their scruples and render a verdict
     according to the evidence. [For instance,] [a]fter prospective
     juror 12 indicated his discomfort with the fact that the victim
     was a young child, the following exchange took place:
           THE COURT: [W]e would ask you to be able to set
           aside any feelings you might have about these
           charges and be fair to both sides. Clean sheet of
           paper.   Nothing on it.   You haven't heard any
           testimony. Seen any exhibits. Be fair to both sides?
           Can you do that?
           PROSPECTIVE JUROR 12: Yes, I can
     Id. at 58-59. Furthermore, after the    issue was revisited during
     [Appellant's] examination of the [prospective] juror, and after
     the [trial court] had informed prospective juror 12 about the
     duties of a juror, the following exchange took place,
           THE COURT: Knowing that is what you have to do,
           can you set aside any initial feelings you might have
           about what I have read to you, because you haven't
           heard anything yet, and make your decision based
           upon the testimony and evidence that is presented
           to you during the course of the trial only?
           PROSPECTIVE JUROR 12: I believe      that I can, yes.
     Id. at 62. Thus, prospective juror 12 indicated that he was
     capable of eliminating any initial discomfort he may have felt and
     of rendering a fair, impartial, and unbiased verdict. Therefore,
     the [trial court] did not err when it did not dismiss prospective
     juror 12 for cause.
            Moreover, while prospective juror 42 initially expressed
     surprise that a defendant in a murder case would not try to
     defend himself, he nonetheless readily indicated that he would
     be able to follow the applicable law and arrive at a fair and
     impartial verdict.     Specifically, after the prospective juror
     expressed his surprise, the following exchange took place,
           THE COURT: Well, I know that, generally speaking
            some people would think that if they were charged
           with such a crime, they would want to have
           something to say, but the law in the United States,
           in all 50 states, is that the defendant doesn't have to
           do anything, or say anything, or put on any
           testimony, or put on any evidence. Because it's the
           Commonwealth's burden of proof that the defendant

                                   - 19 -
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             is  guilty beyond a reasonable doubt.        It's their
             choice. It's not the choice of any of the rest of us.
             It's the defendant's choice, his choice alone, whether
             or not to say or do anything in the case.
             Understanding that is the law, can you follow the
             law?
             PROSPECTIVE JUROR 42: Sure. I can follow the law.
       Id. at  172.   Further questioning on the subject by defense
       counsel and the district attorney confirmed that the prospective
       juror understood the Commonwealth's burden of proof and
       would be able to render a fair and impartial verdict accordingly.
       Id. at 174-80. Thus, the [trial court] did not err when it did not
       dismiss prospective juror 42 for cause.

Trial Court Opinion, filed 9/2/16, at 46-47 (quotation marks omitted).

       We agree with the trial court's well -reasoned analysis and find no

abuse of discretion      in   denying Appellant's challenges for cause as to

prospective jurors 12 and 42. See Penn, supra.

       In his next issue, Appellant contends that he   is   entitled to   a   new trial

as a   result of the trial court's restriction on his cross-examination of

Commonwealth witness Tracey Cobb concerning an allegedly false allegation

of rape Josephita made against Cobb's husband on Facebook.                See N.T.,

1/27/16, 158-81.       Citing to Pa.R.E. 607(b), Appellant contends that he

should have been permitted to cross-examine Ms. Cobb about the allegation

since it impeached Josephita's credibility and tended to show that she

blamed other people for her own conduct.

       We find the following Pennsylvania Rules of Evidence to be relevant:

       Rule 607. Who May Impeach a Witness, Evidence to
       Impeach    a   Witness
                                     ***

                                       -   20   -
J   -S29038-17


        (b) Evidence to Impeach a Witness. The credibility of a
        witness may be impeached by any evidence relevant to that
        issue, except as otherwise provided by statute or these rules.

Pa.R.E. 607.

        Rt.!2 508. A Witness's Character           for Truthfulness or
        UntruthfCriess
                                     ***
        (b) Specific Instances of Conduct. Except       as provided in Rule
        609 (relating to evidence of conviction of crime),
        (1) the character of a witness for truthfulness may not be
        attacked or supported by cross-examination or extrinsic evidence
        concerning specific instances of the witness' conduct; however,
        (2) in the discretion of the court, the credibility of a witness who
        testifies as to the reputation of another witness for truthfulness
        or untruthfulness may be attacked by cross-examination
        concerning specific instances of conduct (not including arrests)
        of the other witness, if they are probative of truthfulness or
        untruthfulness; but extrinsic evidence thereof is not admissible.

Pa.R.E. 608.

        In explaining the reasons it sustained the Commonwealth's objection

to Appellant's cross-examination of Ms. Cobb, the trial court indicated the

following:

               The Commonwealth argued...that [the allegation] was a
        collateral issue which was highly prejudicial and that [Appellant]
        was asking one witness to give her opinion on the credibility of
        another witness when determinations of credibility were the sole
        province of the jury....
              [The trial court] did not err when it did not allow
        [Appellant] to cross-examine [Ms.] Cobb regarding a rape
        allegation made by Josephita over Facebook against [Ms.] Cobb's
        husband.    As [Appellant] was seeking to offer evidence for
        purposes of attacking the credibility of a witness who testified
        (Josephita), the admissibility of such evidence was governed by
        Pa.R.E. 608 and proof of specific incidents of conduct, such as a


                                       - 21 -
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      particular allegation made during a conversation over Facebook,
      by either cross-examination or extrinsic evidence was prohibited.

Trial Court Opinion, filed 9/2/16, at 48-49. We find no abuse of discretion in

this regard.     See Commonwealth v. Birch, 532                Pa.   563, 616 A.2d 977

(1992) (indicating scope and limits of cross-examination are within the

discretion of the trial court and will not be disturbed absent an abuse of that

discretion).

      In his next issue, Appellant contends that he is entitled to            a   new trial

as a result of the trial court's denial of his motion for a mistrial after the

prosecutor commented upon the redirect examination of Commonwealth

witness Dr.      Lawrence Dobrin that she had to address "some of the

irrelevances we were just subjected to for the past 20 minutes." Appellant

contends       that   the       prosecutor's     statement   constituted    prosecutorial

misconduct requiring        a   new trial.

           The legal principles relevant to a claim of prosecutorial
      misconduct are well established. Comments by a prosecutor
      constitute reversible error only where their unavoidable effect is
      to prejudice the jury, forming in [the jurors'] minds a fixed bias
      and hostility toward the defendant such that they could not
      weigh the evidence objectively and render a fair verdict.

Commonwealth v. Thomas, 618                    Pa. 70, 79, 54 A.3d 332,    337-38 (2012)

(quotation omitted).            A prosecutor is permitted to         respond to defense

arguments with appropriate oratorical flair and                 not every unwise or

intemperate remark made by               a   prosecutor mandates the grant of       a   new

trial. Commonwealth v. Brown, 134 A.3d 1097 (Pa.Super. 2016).


                                               - 22 -
J -S29038-17



         In the case at bar, at the commencement of the prosecutor's redirect

examination of Dr. Dobrin, the prosecutor stated, "I want to go back through

a   few things to sort of, I guess, point out some of the irrelevances we were

just subjected to for the past 20 minutes." N.T., 12/1/16, at 81. Defense

counsel moved for        a   mistrial on the basis the statement was highly

prejudicial and unprofessional.    Id. at   82. The prosecutor responded:

         Respectfully, Your Honor, I was prefacing where I was about to
         go, which was the fact that we just had about six questions that
         had nothing to do with the actual doctor's testimony. So I was
         trying to focus back on the things that actually had something to
         do with the doctor's testimony.           We talked about DNA,
         fingerprints. We talked about the entire universe of the world.
         None of which had anything to do with why the doctor is here
         and qualified to testify. I was just trying to focus us back to why
         he's here.

Id. at 82-83.     The trial court denied defense counsel's request for   a   mistrial.

Id. at   83.

         In explaining the reasons for its ruling, the trial court relevantly

indicated the following:

         [T]he prosecutor's comments were merely oratorical flair made
         in fair response to [Appellant's] cross-examination of [Dr.]
         Dobrin. Despite [Dr.] Dobrin being called to testify as to his role
         in comparing the photographs of [Appellant's] teeth to the bite
         marks on S.B.'s body, [Appellant] cross-examined him as to how
         and when S.B.'s autopsy photographs were taken, a hypothetical
         database containing the dental impressions of everyone in the
         country, DNA evidence, fingerprint evidence, and the subjectivity
         of [Dr.] Dobrin's opinion. All of these subjects had little or no
         relevance to [Dr.] Dobrin's testimony on direct examination or
         his credibility as a witness and served only to distract the jury
         from evidence offered by [Dr.] Dobrin. Thus, the prosecutor's
         remark was fair response to [Appellant's] obfuscation of the
         evidence which incorporated oratorical flair to redirect the jury's

                                       - 23 -
J -S29038-17



         attention back to the actual evidence presented. Furthermore,
         given the voluminous amount of evidence which implicated
         [Appellant] in S.B.'s death, this isolated and minor comment by
         the prosecutor [did not] have...the unavoidable effect of
         prejudicing the jury so that they could not weigh the evidence
         objectively and render a fair verdict.

Trial Court Opinion, filed 9/2/16, at 51.          We agree with the trial court's

reasoning and find no relief is due. See Thomas, supra.

         In his final issue, Appellant contends that the imposition of separate

sentences for the crimes of third-degree murder, EWOC, and aggravated

assault amounted to an illegal sentencing scheme, as the court was bound to

merge the latter two crimes as lesser -included offenses of third-degree

murder.      "A claim that the trial court imposed an illegal sentence by failing

to merge sentences is     a    question of law. Accordingly, our standard of review

is    plenary." Commonwealth v. Snyder, 870 A.2d 336, 349 (Pa.Super.

2005) (quotation marks and quotation omitted).

         We begin our examination of Appellant's merger claim by reviewing

the statutory provisions pertinent to his underlying convictions.

         Regarding third-degree murder, the Crimes Code relevantly provides

that "[a]ll other kinds of murder shall be murder of the third-degree." 18

Pa.C.S.A.    §   2502(c). Section 2502(c) does not set forth the requisite mens

rea for third-degree murder, however, Section 302(c) of the Crimes Code

provides that "[w]hen the culpability sufficient to establish            a   material

element of an offense     is   not prescribed by law, such element is established if

a    person acts intentionally, knowingly or recklessly with respect thereto." 18

                                          - 24 -
J   -S29038-17


Pa.C.S.A.   §   302(c). "To convict              a   defendant of the offense of third-degree

murder, the Commonwealth need only prove that the defendant killed

another person with malice aforethought." Commonwealth v. Fisher, 622

Pa.   366, 375, 80 A.3d 1186, 1191 (2013) (quotation and citation omitted).

        Regarding          EWOC,    the Crimes Code relevantly provides that "[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, 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.A. 4304(a)(1).

        Finally, regarding aggravated assault, the Crimes Code relevantly

provides that "[a] person               is   guilty of aggravated assault if he: (1) attempts

to cause serious bodily injury to another, or causes such injury intentionally,

knowingly       or         recklessly        under     circumstances     manifesting            extreme

indifference to the value of human life[.]" 18 Pa.C.S.A.                      §   2702(a)(1).

        Regarding the merger of sentences, the legislature has provided that:

        No crimes shall merge   for sentencing purposes unless the crimes
        arise from a single criminal act and all of the statutory elements
        of one offense are included in the statutory elements of the
        other offense. Where crimes merge for sentencing purposes, the
        court may sentence the defendant only on the higher graded
        offense.

42 Pa.C.S.A.       §   9765. "The statute's mandate             is   clear.       It prohibits merger
unless two distinct facts are present: 1) the crimes arise from                                 a   single

criminal act; and 2) all of the statutory elements of one of the offenses are



                                                     - 25 -
J   -S29038-17


included    in   the statutory elements of the other." Commonwealth v.

Baldwin, 604      Pa. 34, 39, 985 A.2d   830, 833 (2009).

              When considering whether there is a single criminal act or
        multiple criminal acts, the question is not "whether there was a
        'break in the chain' of criminal activity." The issue is whether
        "the actor commits multiple criminal acts beyond that which is
        necessary to establish the bare elements of the additional crime,
        then the actor will be guilty of multiple crimes which do not
        merge for sentencing purposes."

Commonwealth v. Pettersen, 49 A.3d 903, 912 (Pa.Super. 2012)
(quotations omitted).

        "In determining whether two or more convictions arose from         a   single

criminal act for purposes of sentencing, we must examine the charging

documents filed by the Commonwealth."             Commonwealth v. Martinez,
153 A.3d 1025, 1030-31         (Pa.Super. 2016) (citing Commonwealth v.

Jenkins, 96 A.3d 1055, 1060 (Pa.Super. 2014) (holding that we must
determine whether the appellant's actions constituted       a   single criminal act,

with reference to elements of the crime as charged by the Commonwealth)).

See Commonwealth v. Kimmel, 125 A.3d 1272, 1276 (Pa.Super. 2015)

(en banc) (concluding merger of DUI charges and felony fleeing did not

merge where the       affidavit of probable cause supplied the factual narrative

of the appellant's DUI stop and subsequent flight -by -vehicle from the scene

of the stop).

        Initially, turning first to an analysis of the second portion of the

Section 9765 merger test, we conclude that third-degree murder does not


                                         - 26 -
J   -S29038-17


subsume all of the statutory elements of EWOC.                    As indicated supra, the

mens rea for third-degree murder               is    malice.     See Marquez, supra.

However, the mens rea for EWOC is             a     knowing violation of   a   duty of care,

protection,      or support.      Commonwealth v. Cottam, 616 A.2d 988
(Pa.Super. 1992); 18 Pa.C.S.A.           §    4303(a)(1).        Further, whereas third-

degree murder does not require proof of the victim's age, EWOC requires

proof that the victim is "a child under 18 years of age."                  18 Pa.C.S.A. §

4303(a)(1).       Consequently, we conclude that Appellant's conviction for

EWOC does not merge with             third-degree murder as "all of the statutory

elements of...the offense are [not] included in the statutory elements of the

other." Baldwin, 604          Pa. at 39, 985 A.2d at 833.7

        With regard to whether third-degree murder subsumes aggravated

assault, our Supreme Court has held that aggravated assault is                     a   lesser -

included      offense    of    third-degree    murder.         See   Commonwealth           v.

Musselman, 483          Pa.   245, 396 A.2d 625 (1979).          However, upon review of

the information, criminal complaint, and affidavit of probable cause filed in




    We note that EWOC does not merge with aggravated assault for sentencing
purposes under the elements portion of the Section 9765 merger test. See
Commonwealth v. Baker, 963 A.2d 495 (Pa.Super. 2008) (holding that
merger of EWOC with aggravated assault was not warranted as all statutory
elements of one offense did not coincide with elements of other offense).




                                          - 27 -
J   -S29038-17


the instant matter, we conclude the first portion of the Section 9765 merger

test has not been met.

        Here, the information listed the offense date of July 16, 2013, for each

of the offenses and set forth        a   generic recitation of the statutory elements

for each offense. However, in the criminal complaint, Detective Gary White

indicated   "[a]t 2220   S.   56th       Street, [Appellant] intentionally, knowingly,

recklessly, or negligently caused the death of S.B., age 4, by punching,

kicking, and biting her multiple times on multiple occasions."                Criminal

Complaint, dated 9/20/13 (emphasis added).               Moreover, in the affidavit of

probable cause, Detective White averred the following:

              On Tuesday, July 16, 2013, at    2:50 a.m., police responded
        to [CHOP] for a report of a deceased child with suspicious
        injuries. Upon their arrival, police at this location were informed
        by the hospital staff that [S.B.], 4 [years old], was transported
        to the hospital by her mother, Josephita [ ], and was
        unresponsive and not breathing. The child was pronounced
        dead...by Dr. Posner who observed numerous old and new
        bruising to the face, back, neck and bite marks.
              There was a post-mortem examination performed on the
        remains of the decedent on 7/16/13 by Dr. Lieberman at the
        City of Philadelphia Medical Examiner's Office. Dr. Lieberman
        determined that based on his findings that the cause of death
        was a laceration to the liver caused by abdominal blunt force
        trauma and the manner of death is Homicide.
             A witness known to the Commonwealth of Penna and will
        be available at all court proceedings related the following in a
        summary to Detectives Crystal Williams [ ] and Gary White [ ] in
        the presence of her/his attorney, David Rudenstein, Esquire.
        The witness stated that on the night before the decedent was
        taken to the hospital he/she observed [Appellant] 26 [years old]
        punching the decedent in her back inside of 2220 S. 56th Street.
        The witness stated that he/she tried to block [Appellant] from
        hitting the decedent and she/he was also hit by his punches.

                                             - 28 -
J   -S29038-17


        He/she stated that [Appellant] then left the residence and came
        back later. The witness stated that she/he was in the kitchen
        when she/he heard the decedent crying in the living room.
        He/she went into the living room and saw the decedent crying.
        He/she also observed [Appellant] with both of his hands up and
        they were in a fist and he put them down real fast. He/she
        stated that she asked the decedent what was wrong and she
        said, "My tummy hurts." The witness stated that the decedent
        started breathing hard and he/she got into [Appellant's] vehicle
        and [Appellant] drove them to [CHOP] where he dropped them
        off. He/she learned that the decedent had died from the hospital
        staff.  The witness stated that [Appellant] would beat the
        decedent every time that he would be angry with her and that
        [Appellant] had broke the decedent's leg on one occasion.
               On July 25, 2013, Dr.    Dobrin, Chief Forensic Dentist,
        photographed the teeth of [Appellant] because [Appellant] would
        not allow impressions or wax bite of his teeth, but finally did
        allowed [sic] the photographs on a court order signed by Judge
        Lerner. Dr. Dobrin stated that as a result of his examination it is
        his opinion to a reasonable degree of medical certainty that the
        bite marks present on the decedent were produced by the
        dentition of [Appellant].

Affidavit of Probable Cause, dated 9/20/13.

        This   description   comports   with     Josephita's   trial   testimony,   as

summarized by the trial court:

        Josephita testified that, on the day S.B. was murdered, she was
        in the kitchen cooking when she and [Appellant] had an
        argument about her infidelity. Josephita further testified that
        [Appellant] was angered by Josephita's cheating and began
        punching and kicking S.B. Josephita stated that she did not tell
        him to stop because she was afraid and ashamed. Josephita
        further stated that the beating eventually stopped and
        [Appellant] left but then returned and started beating S.B. again.
        Josephita testified that she could hear S.B.'s screams from the
        kitchen and that, when she went to the living room, she saw that
        S.B. had a bite mark on her bottom lip. Josephita stated that
        she asked [Appellant] why he had bit S.B. but [Appellant] did
        not respond. Josephita further stated that, after the second
        beating stopped, [Appellant] left and S.B. was no longer
        breathing.

                                        - 29 -
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Trial Court Opinion, filed 9/2/16, at 9-10.

        Applying       pertinent authority,     it   is   apparent from    the criminal

information, complaint, and affidavit of probable cause, as well as later

reflected in the trial testimony, that the Commonwealth alleged criminal acts

that constituted aggravated assault as distinct or delineated from the

conduct that constituted third-degree murder.                   That is, the criminal

complaint indicated Appellant "punch[ed], kick[ed], and bit[          ]   [S.B.] multiple

times on multiple occasions." Criminal Complaint, dated 9/20/13 (emphasis

added).     Further, the affidavit of probable cause describes the operative

facts in such      a   way as to distinguish the specific conduct underlying the

offense of aggravated assault (the beating which occurred prior to Appellant

leaving the house with S.B. still alive) and the offense of third-degree

murder (the beating which occurred after Appellant returned to the house

resulting in S.B.'s "tummy hurting" and death). See Pettersen, 49 A.3d at

912 (holding merger is not required where "the actor commits multiple

criminal acts beyond that which        is   necessary to establish the bare elements

of the additional crime") (quotation omitted)).                Thus, we conclude the

offenses of aggravated assault and third-degree murder were separate

criminal acts for purposes of avoiding merger at sentencing. See Kimmel,

supra; Jenkins, supra.
        For all of the foregoing reasons, we affirm the judgment of sentence.

        Affirmed.

                                            - 30 -
J   -S29038-17


Judgment Entered.




J    seph D. Seletyn,
Prothonotary


Date: 5/8/2017




                        - 31 -
