J-S18020-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellee                :
                                               :
                v.                             :
                                               :
    VERNELL HOLLAND NICKENS, IV                :
                                               :
                       Appellant               :      No. 1397 MDA 2019

         Appeal from the Judgment of Sentence Entered March 13, 2019
                In the Court of Common Pleas of Lebanon County
             Criminal Division at No(s): CP-38-CR-0000624-2018


BEFORE:      KUNSELMAN, J., KING, J., and STEVENS, P.J.E.*

MEMORANDUM BY KING, J.:                                   FILED JULY 27, 2020

        Appellant, Vernell Holland Nickens, IV, appeals from the judgment of

sentence entered in the Lebanon County Court of Common Pleas, following his

jury trial convictions for three counts of aggravated assault, two counts of

simple assault, and one count each of recklessly endangering another person

(“REAP”) and endangering the welfare of children (“EWOC”).1 We affirm.

        The relevant facts and procedural history of this case are as follows.

Appellant and A.G. (“Mother”) are the married parents of M.N. (“Child”). On

January 13, 2018, Mother went to work and left Appellant at home to care for

Child and Child’s older sister. At the time, Child was five months old. The

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*   Former Justice specially assigned to the Superior Court.

1 18 Pa.C.S.A. §§ 2702(a)(8), (9); 2701(a)(1); 2705; and 4304(a)(1),
respectively.
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following day, January 14, 2018, Mother noticed that Child was not eating or

acting normally. On January 15, 2018, Mother and Appellant took Child to the

emergency room. Doctors determined that Child had suffered subdural and

retinal hemorrhages. Doctors also observed a bruise on Child’s leg that was

uncommon for a non-mobile five-month-old. Appellant later told state police

that Child was crying on the night in question, and Appellant pulled Child “hard

out of bed.” (See N.T. Trial, 2/26/19, at 46). Text messages between Mother

and Appellant also revealed that Appellant was drinking alcohol and smoking

marijuana that night. (Id. at 50).

       On May 1, 2018, the Commonwealth charged Appellant with multiple

offenses related to Child’s injuries. Following trial, a jury convicted Appellant

on February 26, 2019, of three counts of aggravated assault, two counts of

simple assault, and one count each of EWOC and REAP. The court sentenced

Appellant on March 13, 2019, to an aggregate eight (8) to sixteen (16) years’

imprisonment. The next day, Appellant timely filed post-sentence motions

challenging the weight and sufficiency of the evidence.       The court denied

Appellant’s post-sentence motions on July 17, 2019. Appellant filed a notice

of appeal on August 15, 2019.2 The court did not order, and Appellant did not

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2 The 120-day period for a decision on Appellant’s post-sentence motion
expired on July 12, 2019. Nevertheless, the clerk of courts failed to enter an
order deeming the motion denied on that date.              See Pa.R.Crim.P.
720(B)(3)(a) (stating judge shall decide post-sentence motion within 120
days; if judge fails to decide motion within 120 days, or to grant extension,



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file, a concise statement of errors complained of on appeal pursuant to

Pa.R.A.P. 1925(b).

       Appellant raises the following issues for our review:

          Did the Commonwealth fail to present sufficient evidence at
          trial to prove beyond a reasonable doubt that Appellant was
          responsible for the injuries to the victim?

          Were the verdicts of guilty against the weight of the
          evidence in that the Commonwealth failed to prove that
          Appellant was responsible for the injuries to the victim?

(Appellant’s Brief at 4).

       In his issues combined, Appellant argues the Commonwealth failed to

present sufficient evidence at trial to prove Appellant caused Child’s injuries.

Appellant avers the Commonwealth did not present any testimony that

Appellant admitted to causing Child’s injuries. Appellant asserts the testimony

at trial instead revealed that Mother was Child’s primary caretaker and was

usually home alone with Child during the day while Appellant was at work.

Appellant further avers the jury verdicts were against the weight of the


____________________________________________


motion shall be deemed denied by operation of law); Pa.R.Crim.P.
720(B)(3)(c) (stating when post-sentence motion is denied by operation of
law, clerk of courts shall enter order on behalf of court that post-sentence
motion is deemed denied). Instead, the trial court ruled on the motion on July
17, 2019, outside the 120-day period, and Appellant appealed within 30 days
of that order. Under these circumstances, a breakdown in the operations of
the court occurred, and we will consider Appellant’s appeal as timely filed.
See Commonwealth v. Patterson, 940 A.2d 493, 498-99 (Pa.Super. 2007),
appeal denied, 599 Pa. 691, 960 A.2d 838 (2008) (explaining that this Court
has held breakdown in court operations occurs when trial court clerk fails to
enter order deeming post-sentence motions denied by operation of law
pursuant to Pa.R.Crim.P. 720(B)(3)(c)).

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evidence. Appellant contends Mother’s trial testimony revealed that Mother

was alone with Child on most days, Mother suffered from postpartum

depression, and Mother was frustrated that Appellant chose to nap rather than

help her take care of the children.    Appellant concludes this Court should

vacate his convictions and/or remand for a new trial. We disagree.

      Appellate review of a claim challenging the sufficiency of the evidence

is as follows:

         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
         [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. Jones, 874 A.2d 108, 120-21 (Pa.Super. 2005) (quoting

Commonwealth v. Bullick, 830 A.2d 998, 1000 (Pa.Super. 2003)).

      The following principles apply to a weight of the evidence claim:

            The weight of the evidence is exclusively for the finder
            of fact who is free to believe all, part, or none of the

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            evidence and to determine the credibility of the
            witnesses. An appellate court cannot substitute its
            judgment for that of the finder of fact. Thus, we may
            only reverse the…verdict if it is so contrary to the
            evidence as to shock one’s sense of justice.

         Commonwealth v. Small, 559 Pa. 423, [435,] 741 A.2d
         666, 672-73 (1999). Moreover, where the trial court has
         ruled on the weight claim below, an appellate court’s role is
         not to consider the underlying question of whether the
         verdict is against the weight of the evidence. Rather,
         appellate review is limited to whether the trial court palpably
         abused its discretion in ruling on the weight claim.

Commonwealth v. Champney, 574 Pa. 435, 444, 832 A.2d 403, 408

(2003), cert. denied, 542 U.S. 939, 124 S.Ct. 2906, 159 L.Ed.2d 816 (2004)

(most internal citations omitted).

      The Pennsylvania Crimes Code defines aggravated assault in relevant

part as follows:

         § 2702. Aggravated Assault

         (a) Offense defined.—A person is guilty of aggravated
         assault if he:

                                     *    *    *

         (8) attempts to cause or intentionally, knowingly or
         recklessly causes bodily injury to a child less than six years
         of age, by a person 18 years of age or older; or

         (9) attempts to cause or intentionally, knowingly or
         recklessly causes serious bodily injury to a child less than
         13 years of age, by a person 18 years of age or older.

18 Pa.C.S.A. § 2702(a)(8), (9). The Crimes Code defines simple assault in

relevant part as follows:

         § 2701. Simple Assault

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         (a) Offense defined.—Except as provided under section
         2702 (relating to aggravated assault), a person is guilty of
         assault if he:

            (1) attempts to cause or intentionally, knowingly or
            recklessly causes bodily injury to another;

                                       *        *       *

18 Pa.C.S.A § 2701(a)(1). Section 2705 of the Crimes Code provides:

         § 2705. Recklessly endangering another person

         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.A. § 2705.

      As it pertains to these sections, “bodily injury” is defined as

“[i]mpairment of physical condition or substantial pain.” 18 Pa.C.S.A. § 2301.

“Serious bodily injury” is defined as “[b]odily injury which creates a substantial

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

loss or impairment of the function of any bodily member or organ.” Id.

      The Crimes Code defines the crime of EWOC in relevant part as follows:

         § 4304. Endangering welfare of children

         (a)   Offense defined.—

            (1) 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.

                                   *        *       *


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18 Pa.C.S.A. § 4304(a)(1). The Commonwealth must prove the following to

sustain an EWOC conviction: (1) the accused was aware of his duty to protect

the child; (2) the accused was aware that the child was in circumstances that

could threaten the child’s physical or psychological welfare; and (3) the

accused has either failed to act or has taken action so lame or meager that

such actions cannot reasonably be expected to protect the child’s welfare.

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

     Instantly, in its opinion denying Appellant’s post-sentence motions

challenging the sufficiency and weight of the evidence, the trial court

reasoned:

        Viewed in the light most favorable to the Commonwealth,
        the evidence presented in this case established the
        following:

           [Child] was a five-month-old infant who was incapable
            of injuring or caring for himself.

           Prior to January 13, [Child] was a normal five-month[-
            ]old infant.     Nothing medically significant was
            reported about [Child] prior to January 13.

           After January 13, [Child] did not act in a normal
            fashion. He did not eat or respond in a normal
            fashion. [Child]’s condition so concerned [Mother]
            that a trip to the hospital was undertaken on January
            15.

           On January 13, [Child] was placed within the sole and
            exclusive care of [Appellant].

           Neither [Appellant] nor [Mother] identified any other
            adults who could have inflicted harm upon [Child]
            during the period between January 13, 2018 and
            January 15, 2018.

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            [Child] suffered bruises that could not have been self-
             inflicted due to his non-mobile state.

            [Child] suffered bleeding on both sides of his brain.
             This is a serious life-threatening condition.

            [Child] also suffered hemorrhaging behind his eyes.

            A qualified medical expert opined none of [Child]’s
             injuries were of natural or self-inflicted origin.

            [Appellant] and [Mother] were interviewed on multiple
             occasions by multiple individuals. At no time did
             either [Appellant] or [Mother] provide a legitimate
             explanation for the injuries suffered by [Child].

            A qualified medical expert opined that [Child]’s
             injuries were inflicted by another human being and
             that no possible accidental explanation existed for the
             nature and extent of [Child]’s injuries.

         In addition to the circumstantial evidence outlined above,
         there is direct evidence in the form of [Appellant’s] own
         admission that he grabbed [Child] roughly while “frustrated
         and flustered.” This direct evidence further supports the
         jury’s verdicts.

                                    *     *   *

         In the opinion of this [c]ourt, there is more than sufficient
         circumstantial evidence to support all of the jury’s verdicts.
         The circumstantial evidence is supplemented by additional
         direct evidence in the form of partial admissions by
         [Appellant]. Accordingly, this [c]ourt rejects [Appellant’s]
         challenge to the sufficiency of the evidence presented.
         Moreover, nothing about the weight of the above evidence
         shocks the conscience of this [c]ourt.           Accordingly,
         [Appellant’s] appeal based upon weight and sufficiency of
         evidence should be rejected.

(Trial Court Opinion, filed July 17, 2019, at 9-11). The record supports the

trial court’s analysis.

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      Here, Mother left Child with Appellant while she went to work on January

13, 2018. On January 14, 2018, Mother noticed Child was not eating or acting

normally.   On January 15, 2018, Mother and Appellant took Child to the

emergency room, where doctors determined Child had suffered subdural and

retinal hemorrhages. Doctors also observed a bruise on Child’s leg. Child’s

doctor testified that these injuries were uncommon for a non-mobile five-

month-old child and were likely inflicted by another person. (See N.T. at 63-

83). Additionally, testimony revealed that Appellant told police that Child was

crying on the night in question, and Appellant pulled Child “hard out of bed.”

(Id. at 46). Thus, viewed in the light most favorable to the Commonwealth

as verdict-winner, the evidence was sufficient to enable the jury to find beyond

a reasonable doubt that Appellant caused the injuries to Child and was guilty

of the offenses. See Jones, supra. Likewise, we will not disturb the trial

court’s decision regarding Appellant’s weight of the evidence challenge. See

Champney, supra. Accordingly, we affirm.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 07/27/2020


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