J-S03019-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

STEVEN SAVOY

                        Appellant                   No. 1455 EDA 2014


           Appeal from the Judgment of Sentence April 25, 2014
           In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0007045-2012


BEFORE: FORD ELLIOTT, P.J.E., PANELLA, J., and OTT, J.

MEMORANDUM BY PANELLA, J.                          FILED MARCH 19, 2015

     Appellant, Steven Savoy, appeals from the judgment of sentence

entered April 25, 2014, by the Honorable Jeffrey P. Minehart, Court of

Common Pleas of Philadelphia County. No relief is due.

     The trial court aptly summarized the pertinent facts as follows.

           On June 4, 2011, at approximately 8:53 a.m., Emergency
     Medical Services (“EMS”) arrived at [Savoy’s] apartment building
     at 2411 N. 11th Street in response to an emergency call where
     they were met by defendant in the lobby of the apartment
     building. He was holding the victim, [six-month-old] Essence
     Savoy, in his arms.        EMS transported the victim to St.
     Christopher’s Hospital and while in route [sic] they administered
     epinephrine and adrenaline to the victim.           Once at St.
     Christopher’s, the victim was given another round of epinephrine
     and regained her pulse, but not her ability to breathe. The
     victim, who was in a coma, was put on a respirator. However,
     on June 10, 2011, the respirator was removed and at 2:43 p.m.,
     the victim was declared dead by Children’s Hospital medical
     personnel.
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                In his testimony, [Savoy] stated that on June 4, 2011, at
        approximately 8:30-8:35 a.m., his girlfriend, Ebony Prattis left
        the victim under his care and then departed the apartment she
        shared with defendant with her three other children for a
        birthday party. According to [Savoy], after his girlfriend left, he
        was playing a video game when he heard the victim gasping for
        air as she lay on the other end of the sofa. He thought she
        needed to vomit so he picked her up. After picking up the
        victim, he shook the victim three or four times. After the third
        time, the victim’s head went limp and he laid her back on the
        sofa. [Savoy] then attempted to give the victim CPR, causing
        “milk and stuff” to come out of her mouth when he blew harder.
        [Savoy] then went to the neighbor’s apartment and called his
        girlfriend and then 9-1-1. Per 9-1-1 instructions, he laid the
        victim on the floor and did a finger sweep of the victim’s mouth,
        wherein he found a penny. He then attempted CPR again, but
        saw no response. He felt that he was incorrectly performing CPR
        and ran for the elevator when he heard an ambulance. Because
        the elevators often operated slowly, [Savoy] instead ran down
        the steps, with the victim in his arms, to meet paramedics.

              An examination of the victim’s brain and spinal cord
        revealed that the victim suffered from inflicted neuro trauma (or
        abusive head trauma), which is injury to the top of the spinal
        cord where it meets the brain. Dr. Lucy Rorke-Adams, an expert
        in neuropathology, concluded that Mr. Savoy had shaken the
        victim so violently that he spinal cord had separated from the
        lower part of her brain, resulting in respiratory arrest and cardiac
        arrest. Dr. Rorke-Adams described internal trauma to the brain,
        spinal cord and eyes as a result of the shaking, as well as
        external trauma to the victim’s head caused by blunt impact.
        The manner of death was deemed to be homicide.

Trial Court Opinion, 7/15/14 at 2-3 (unnumbered). Following a bench trial,

Savoy was convicted of third-degree murder1 and endangering the welfare of

a child by a parent or guardian.2              On April 25, 2014, the trial court


____________________________________________


1
    18 Pa.C.S.A. § 2502(c).
2
    18 Pa.C.S.A. § 4304.



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sentenced Savoy to fifteen to thirty years’ incarceration. Thereafter, Savoy

filed a post-sentence motion, which the trial court denied without a hearing

on May 7, 2014. This timely appeal followed.

      On appeal, Savoy raises the following issues for our review:

      I.       Is appellant entitled to an arrest of judgment with respect
               to his convictions for murder of the third degree and
               endangering the welfare of a child by a parent or guardian
               since the evidence is insufficient to sustain the verdicts of
               guilt as the Commonwealth failed to sustain its burden of
               proving appellant’s guilt beyond a reasonable doubt?

      II.      Is appellant entitled to remand for resentencing since the
               sentence imposed by the trial court is excessive,
               unreasonable and not reflective of appellant’s character,
               history and condition?

Appellant’s Brief at 4.

      Savoy first challenges the sufficiency of the evidence in support of his

convictions.     We review a challenge to the sufficiency of the evidence as

follows.
             The standard we apply when 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

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      trier 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. Furthermore, when reviewing a sufficiency
      claim, our Court is required to give the prosecution the benefit of
      all reasonable inferences to be drawn from the evidence.

             However, the inferences must flow from facts and
      circumstances proven in the record, and must be of such volume
      and quality as to overcome the presumption of innocence and
      satisfy the jury of an accused's guilt beyond a reasonable doubt.
      The trier of fact cannot base a conviction on conjecture and
      speculation and a verdict which is premised on suspicion will fail
      even under the limited scrutiny of appellate review.

Commonwealth v. Slocum, 86 A.3d 272, 275-276 (Pa. Super. 2014)

(citation omitted).

      Savoy argues that his conviction for third-degree murder was

insufficient as the Commonwealth failed to establish that he acted with the

requisite malice. Third-degree murder is defined as all other murders that

are not first or second degree murder:

      Third degree murder occurs when a person commits a killing
      which is neither intentional nor committed during the
      perpetration of a felony, but contains the requisite malice. Malice
      is not merely ill-will but, rather, wickedness of disposition,
      hardness of heart, recklessness of consequences, and a mind
      regardless of social duty. Malice may be inferred from the use of
      a deadly weapon on a vital part of the victim's body. Further,
      malice may be inferred after considering the totality of the
      circumstances.

Commonwealth v. Garland, 63 A.3d 339, 345 (Pa. Super. 2013) (citation

omitted).

      Although Savoy admits on appeal that he shook his infant daughter,

he purports to justify his actions as a necessary attempt to save the child.




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He also argues that while his actions may have been “extremely foolish, they

were no more than utterly negligent.” Appellant’s Brief at 22.

      We find Savoy’s argument to be unavailing.       It defies the scientific

evidence. As noted by the trial court, the Commonwealth’s expert witness

testified that Savoy shook the infant with such violence that the victim

suffered both internal injuries, resulting in the separation of the spinal cord

and brain, and external injuries in the nature of blunt force trauma to the

victim’s head. See N.T., Trial, 10/17/13 at 23-24, 37-38. It was reasonable

for the trial court to conclude that grabbing and shaking the victim – and

infant – with enough violence to result in non-accidental internal and

external trauma constituted, at a very minimum, extreme recklessness of

consequences such that sufficient evidence of malice existed to support

Savoy’s conviction of third-degree murder. See Commonwealth v. Hardy,

918 A.2d 766, 774-775 (Pa. Super. 2007) (evidence sufficient to find malice

where appellant shook infant victim with enough violence to fracture ribs,

shaking him and/or otherwise causing his head to strike an object), appeal

denied, 940 A.2d 362 (Pa. 2008). We therefore hold that there was

sufficient evidence to establish malice.

      Savoy additionally argues that the evidence was insufficient to support

his conviction of endangering the welfare of a child by a parent or guardian.

Our review of the record reveals that Savoy does not develop this claim in

any meaningful manner or provide pertinent legal authority in support

thereof. Therefore, we find this claim waived for lack of development. See

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Commonwealth v. Delvalle, 74 A.3d 1081, 1087 (Pa. Super. 2013)

(finding undeveloped claim to be waived).

      Savoy’s remaining claim raises a challenge to the discretionary aspects

of his sentence.   Preliminarily, we must determine whether Savoy has the

right to seek permission to appeal the sentencing court’s exercise of its

discretion. See Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super.

2010). When an appellant challenges the discretionary aspects of his

sentence, we utilize a four-part test to determine:

      (1) whether appellant has filed a timely notice of appeal, see Pa.
      R.A.P. 902 and 903; (2) whether the issue was properly
      preserved at sentencing or in a motion to reconsider and modify
      sentence, see Pa. R. Crim. P. [720]; (3) whether appellant’s
      brief has a fatal defect, Pa. R.A.P. 2119(f); and (4) whether
      there is a substantial question that the sentence appealed from
      is not appropriate       under     the   Sentencing Code, 42
      PA.CONS.STAT.ANN. § 9781(b).

Id. (internal citations omitted).

      In the present case, our review of the record reveals that although

Savoy raised in his Rule 1925(b) statement all of the arguments he now

seeks for us to review in support of his discretionary aspects of sentencing

claim, he failed to raise these specific arguments either at sentencing or in

his post-sentence motion.     See Petition for Reconsideration of Sentence,

4/28/15 at ¶¶4-5 (challenging only that sentence will “lead to deterioration

of Defendant’s ability … to become a useful and productive member of

society” and constitutes extreme hardship on Defendant’s family). As Savoy

preserved none of the arguments he now raises in support of his


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discretionary aspects of sentencing claim either at sentencing or in his post-

sentence motion, they are not subject to our review. See Commonwealth

v. Tejada, --- A.3d ---, ---, 2015 WL 62931, *9 (Pa. Super., filed 1/6/15).

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/19/2015




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