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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

BRYANT KIMBALL YEAPLES

                            Appellant                 No. 1172 WDA 2015


            Appeal from the Judgment of Sentence February 24, 2015
               In the Court of Common Pleas of Armstrong County
              Criminal Division at No(s): CP-03-CR-0000790-2013


BEFORE: SHOGAN, J., OTT, J., and FITZGERALD, J.*

MEMORANDUM BY OTT, J.:                             FILED OCTOBER 19, 2016

        Bryant Kimball Yeaples appeals from the judgment of sentence

imposed on February 24, 2015, in the Court of Common Pleas of Armstrong

County, made final by the denial of post-sentence motions on March 31,

2015.     On December 11, 2014, a jury convicted Yeaples of aggravated

assault.1    The court sentenced Yeaples to a term of 90 to 180 months’

imprisonment.       On appeal, Yeaples raises evidentiary, sufficiency, and

weight claims.      For the reasons below, we affirm Yeaples’ judgment of

sentence.


____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. § 2702(a)(1).
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        Yeaples’ conviction stems from events that took place in October of

2013.      The facts, as recounted during his December 2014 trial,2 are as

follows.    Heather Barden testified that in October of 2013, she was living

with Yeaples, her boyfriend at the time, and her three young children as well

as Yeaples’ friend, Edward Barger, and Barger’s mother, Deborah K.

Lemley.3 Yeaples is the biological father of two of the minor children but not

the youngest, Mykala Yeaples (“Victim” or “the victim”), who was 23 months

old at the time.4      Barden worked at a local grocery store during the day

while Yeaples, unemployed at the time, took care of the three children at

home.

        On Sunday, October 20, 2013, Yeaples texted Barden while she was at

work and said that Victim had attempted to eat cigarette butts and he “had

to put his fingers in her throat and just get them out and she finally coughed

up like all the cotton things.” N.T., 12/10/2014-12/11/2014, at 13. Barden

stated that when she arrived home, the child’s face was bruised from her

eyebrows to her chin, and her eyes were “pouffy.” Id. at 13, 18.


____________________________________________


2
  Yeaples originally pled guilty but prior to sentencing, he filed a motion to
withdraw his plea which was granted on September 23, 2014.
3
    Lemley owned the home where everyone lived.             It was located in
Kittanning Borough, Pennsylvania.
4
    Nevertheless, Yeaples was listed as the victim’s father on her birth
certificate.



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       The following Thursday, October 24, 2013, when Barden arrived home

after finishing a work shift, [Yeaples told her that he was bathing all three

children in the bathtub. After returning from getting soap in another room,

he saw their son5 sitting on Victim’s head which was under water. Id. at 16.

Yeaples told Barden he had to do cardiopulmonary resuscitation (“CPR”) until

Victim finally coughed up water and was fine. Id. at 17. When Barden went

to check on Victim, she noticed, “[Victim] was asleep, but there was just a

small like water mark on her pillow, but she always drooled, so I didn’t see

anything wrong with it.” Id. Barden noted Victim did not have any marks

on her besides the discoloration on her face from the cigarette butt incident.

Neither Barden nor Yeaples took Victim to the hospital to receive attention

following this incident.

       Barden testified the next evening, she came home from work and

found Victim asleep, Yeaples playing a video game, and the other two

children watching their father.         She stated Victim had a blanket covering

most of her face. Id. at 21-22. Barden indicated Victim “woke up just a

couple times [during the night,] made a couple noises, like moaning noises,

found her binky and went right back to sleep.” Id. at 23.

       Subsequently, the following morning, October 26, 2014, Barden stated

the family woke up around 9:30 a.m.              She explained the children were

____________________________________________


5
    At the time of trial, the son was four years old.



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playing while she made them breakfast and Yeaples was having a cigarette.

She said the following incident then took place:

        I don’t remember what [Victim] did, but she made [Yeaples]
        mad somehow and he went to put her in the corner and stood
        her up and she fell down …. He stood her back up in the corner
        and she fell down again, like just slowly. She just like laid down.
        And then I said, is something wrong with her? And he just said,
        no, she’s fine. [He s]tood her back up in the corner and she just
        laid down again.

               I said, maybe she is not feeling well or something. I said,
        I will sit with her and have her in my lap. If you want her in a
        timeout, I will put her in my lap. I put her in my lap and he’s
        like, she needs to learn how to stand up. And I said, no, she can
        just sit here. And then I don’t know how I made him even
        madder. He said, you know, you can get your daughter and get
        out, and I just stood up and I picked her up and I grabbed my
        hoodie and keys and said okay and I walked out the door. He
        followed me out the door.

Id. at 25-26.6 Victim was only wearing a diaper at the time. Barden placed

her in the car seat and covered her with the hoodie.        Barden waited until

Yeaples went back into the home to check on the other children before she

left.

        Barden testified she then drove to the home of her ex-boyfriend,

Henry Toy, to ask for his assistance,7 and then they both went to her

____________________________________________


6
   Barden also testified Yeaples put Victim in her lap after the third attempt
at making her stand in the corner. Id. at 27.
7
   Barden stated she wanted Toy’s protection for when she went back to the
house to get her other two children. Id. at 66. She said, “[Yeaples] has
told me previously if he got the chance to take my children and leave, he
would and I would never see them again.” Id. at 67.



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mother’s house. After they transferred Victim to the mother’s car, they went

to the Armstrong County Memorial Hospital.            Id. at 34.   Due to Victim’s

injuries, she was LifeFlighted to Children’s Hospital of Pittsburgh (“Children’s

Hospital”).

       On cross-examination, Barden testified she did not see any bruises or

lacerations on Victim’s body besides the bruising on the face. Id. at 49, 77-

79.8   Nevertheless, Barden indicated that on the morning of October 26th,

she noticed the back, left side of Victim’s head was swollen. Id. at 53, 85.9

       Toy also testified at trial. He stated that when Barden arrived at his

home, he noticed Victim’s whole face was swollen and black-and-blue, and

there were bruises all over her body.            Id. at 92-93, 100-101.   He told

Barden that she needed to take Victim to the hospital. Toy said he sat with

Victim on the way to the hospital and he tried to keep her from falling

asleep. Id. at 95.

       Adelaide Eichman, M.D., a general pediatrician at Children’s Hospital in

the Child Advocacy Center, testified she was called in as a consultant to

____________________________________________


8
   Counsel for Yeaples showed Barden several pictures of Victim’s injuries,
taken at Children’s Hospital. Barden stated the pictures of the child, with
bruises besides those on her face, did not match what Barden observed on
the morning of October 26th. Id. at 70-79.
9
   Barden testified she was charged with the crime of endangering the
welfare (“EWOC”) of a child as related to this matter. Id. at 89. She stated
there was no plea agreement, and no promises had been made to her
regarding her testimony. Id. at 90.



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handle Victim’s case on October 26, 2013.10 She indicated that during the

LifeFlight, Victim received a blood transfusion.           Id. at 115.         After

observation, she described Victim’s injuries as follows:

             So [Victim] had bruising to her -- her whole entire head
       was swollen. She had bruising on her forehead and on both of
       her cheeks. She had bruising kind of going from head to toe.
       She had bruising on her chest, on the left side of her chest. She
       had to be in a cervical collar to protect her collar, so you will see
       these in the pictures.

             On her upper back, she had bruises on her upper back.
       She had bruises over her flank, so basically on her side. [Victim]
       had bruises on every extremity, so her arms, both arms, and
       both legs. This was very striking because I see a lot of children
       that are very active and are mobile, like she was. She was 23
       months at the time and these were in very unusual places to get
       bruises for children.

              Typically, I get worried about abuse when I see bruising on
       soft areas in the body. So if you have bruising over your shins
       or one over your forehead, I think okay, that’s just being a
       rough and tumble kid. But it’s extremely difficult to get bruising
       over your abdomen, over your flanks, over your thighs. Those
       are smushy areas and it takes a lot of force for that to happen.
       So even without any scans, I had made the diagnosis of physical
       child abuse on this child.

             That being said, she did have intensive abdominal injury
       and I can go over all of that. So kind of going from head to toe
       again, fortunately, [Victim]’s brain was okay. She did not have
       any brain injury. She did have three rib fractures on her right
       side, her seventh, eighth, and ninth ribs in the back were
       broken. She also had lacerations and bruising of her internal
       organs. So her liver, she had a big hematoma. That’s basically
       a bruise.

____________________________________________


10
   The doctor spoke with Barden and Victim’s biological father, but not
Yeaples.



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                                      …

      So a laceration is a cut. She had a large cut and bruising to her
      liver. And again, that does not happen in routine childhood play.
      If you guys are familiar with kids, that does not happen usually
      accidentally. She had something called hemoperitoneum. So
      that’s a fancy way of saying that she had so much internal
      bleeding that it had gone out of her organs and was basically in
      her abdominal cavity.      So she needed a blood transfusion
      because her blood had seeped out and was in the wrong place.

            She had bruising to her kidneys and bruising to her right
      adrenal gland…. She had contusions to the left kidney, which is
      in the back, more than the right.

                                      …

             Contusion is also a fancy word for a bruise. And then part
      of her, it’s called duodenum, that’s part of her small bowel, had
      a hematoma or contusion or bruise, is the normal way to say it.
      She had bruising to that. She had a small hematoma or bruise
      to the top of her stomach inside. And then she had something
      called a pneumothorax, which is basically because she had all
      the rib fractures, some air … had gotten out of her lungs and into
      her chest. So she had bleeding in all the wrong places and air
      going into the wrong places, because of her massive internal
      injuries.

Id. at 116-118.

      Dr. Eichman testified Victim needed a second blood transfusion at the

hospital and she would have died if she had not received the transfusions.

Id. at 118.    The doctor also indicated Victim’s young siblings were “not

strong enough to cause these injuries to her.” Id. at 119. Moreover, when

asked about the cigarette butt and bathtub incidents, Dr. Eichman testified

Victim’s facial injuries would not have been caused by that type of behavior.

Specifically, she stated:


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             So, for instance, with the cigarette butts, if you have ever
       choked on anything yourself or seen anybody, your face does
       not stay purple. So that’s a temporary thing because of lack of
       oxygen. So were this story true, which I don’t really believe, but
       were it true, [Victim] would not continue to have facial
       purpleness once she got oxygen back to her body. So that did
       not make sense; neither did, again, if she were without oxygen
       because she w[as] pinned under water. Once she got oxygen,
       her face color would turn back to normal. So I expected that
       those were actually bruises to her and that those stories did not
       explain why she would have bruises.

Id. at 121.     Additionally, Dr. Eichman concluded a blow or hit to the face

caused those injuries, and all of Victim’s injuries were the result of physical

child abuse. Id. at 122.11 Moreover, Dr. Eichman said,

       So medically I can say that these are acute injuries, meaning
       that they are new, so this is not something that happened the
       month or the week before. The internal injuries, when [Victim]
       had those, she would have had symptoms. She would have had
       pain. She would not have been able to eat normally and she
       would not have been acting normally. It would have been very
       clear that this child had been injured severely. So she had come
       to our hospital on the 26th. I would say that these injuries had
       occurred within the past 24 hours.

Id. at 131.

       Trooper Brian Wolfe, of the Pennsylvania State Police, testified that on

October 26, 2013, he was off-duty and subsequently called into work based

on the report of a young child with injuries being flown to Children’s

Hospital.   Id. at 140.      He then interviewed Yeaples.   Yeaples relayed the

____________________________________________


11
   Dr. Eichman testified Victim’s biological father said Yeaples had previously
sent threats to Barden and him, threatening to kill Victim. Id. at 127.
Barden did not tell the doctor this information.



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events that took place that morning. He told the trooper that his son and

Victim were playing with a medical syringe,12 and that Barden reprimanded

the son but not Victim. Id. at 143. Yeaples indicated an argument ensued

and he was putting Victim in the corner when she bit his hand. Id. He also

believed Victim was intentionally falling to the floor.   Id. at 144.   Yeaples

told the trooper he did not do anything to Victim. Id.

       Trooper Wolfe further testified that Yeaples told him about the

cigarette butt and bathtub incidents, which the trooper commented “was

kind of weird, because it just came out.” Id. Trooper Wolfe said he knew

nothing about the case, including those incidents, prior to interviewing

Yeaples, and so therefore, Yeaples volunteered this information. Id. at 145.

Trooper Wolfe stated that after receiving more information about the case,

including Victim’s condition, he Mirandized13 Yeaples.

       Later in the interview, Yeaples informed Trooper Wolfe he called 9-1-1

after Barden left to report her for driving an unregistered or uninsured

vehicle and that Barden had thrown a toy box at Victim.          Id. at 149.14

Yeaples also told the trooper he texted Barden that morning:


____________________________________________


12
     The syringe was used to give medication to Yeaples’ dog.
13
     Miranda v. Arizona, 384 U.S. 436 (1966).
14
   Corporal Craig Chodkowski testified at Yeaples’ trial that he received the
9-1-1 call from Yeaples. He also encountered Yeaples at the hospital. He
(Footnote Continued Next Page)


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      He said he kept texting her but [she] did not respond. He said
      he texted her that he was going to have to go to the hospital
      because he was having heart problems. He said he asked her if
      she could come back to watch the kids so he could go to the
      hospital. He said she texted back that she was on the way [to]
      the hospital with [Victim] and [the child] was not moving.

Id. at 150. Yeaples was then released.

      Trooper Wolfe testified that on November 12, 2013, he conducted a

second interview of Yeaples along with Trooper Kapustik, a criminal

investigator. Yeaples was again given his Miranda warnings. Id. at 152.

They discussed the cigarette butt and bathtub incidents, and Yeaples

acknowledged he was the sole caretaker when those incidents occurred. Id.

at 153. Trooper Wolfe stated they were “pushing” him a little bit about how

the injuries occurred because they had the doctor’s report and the pictures.

However, Yeaples alleged he did not do anything wrong.           The trooper

informed Yeaples that he was going to be charged with aggravated assault

and other charges, and that Barden was going to be charged with EWOC.

Id. at 156. Trooper Wolfe left the room while another trooper remained in

the room with Yeaples. When Trooper Wolfe returned,

             [Yeaples] said he was sorry, that something did happen
      Friday night, that he slipped on a plate that was on the floor and
      he fell on top of [Victim].

                                                 …

                       _______________________
(Footnote Continued)

testified Yeaples looked “nauseous.” N.T., 12/10/2014-12/11/2014, at 178.
He directed Yeaples to go over to the police barracks for questioning.



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        He went on to say that it was his entire body weight [that] fell
        on top of her; that she was standing there, he fell on top of her
        and they both went to the ground. Then after that, he put her in
        bed.

Id. at 157-158. Trooper Wolfe then took Yeaples to the Armstrong County

Jail.   Trooper Wolfe testified that en route to the jail, Yeaples’ demeanor

changed and he “became a little more angrier once we left the station[.]”

Id. at 159. Yeaples also told him, “I slapped her upside her head so hard I

knocked her down.”         Id.   Trooper Wolfe did not question Yeaples further

about this comment.15

        On cross-examination, when asked how he made the determination

that Yeaples, and not Barden, had abused Victim, Trooper Wolfe stated:

“Mr. Yeaples had been with the child nonstop, really, since the 20th, since

the alleged cigarette incident, the alleged drowning incident, and also he

was the caretaker on the night of the 25th going into the 26th. [Barden] was

never alone with the children.” Id. at 168.

        The Commonwealth then rested its case-in-chief.        Defense counsel

made an oral motion for judgment of acquittal, which the trial court denied.

Id. at 183.



____________________________________________


15
    Trooper Wolfe also testified that during these interviews, they asked
Yeaples if Barden hurt the children and he replied in the negative. Id. at
168. The trooper also interviewed Barden who stated that she had never
seen Yeaples harm the children. Id.



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       Lemley, the owner of the home where Yeaples and the family lived,

then testified for the defense.         When asked if she ever observed anyone

administer physical punishment to Victim, Lemley stated she heard Barden

smack the children to get them to lay down and go to sleep, and the hits

were so loud she could hear them through a closed door. Id. at 188. She

also stated Yeaples took care of Victim and treated her as his own. Id. at

190. Additionally, Lemley testified she observed Victim on the morning of

October 26th, and Victim did not look like how the hospital pictures depicted

her when Barden and Victim were leaving the home.16 Id. at 193. Lemley

also stated that the morning Barden and Victim left, Yeaples was concerned

about getting the other children ready for the day and just said that “he had

to go and do something” when he departed. Id. at 195.17

____________________________________________


16
    Trooper Wolfe testified he interviewed Lemley during the investigation
and she did not inform him that she saw Barden and Victim on the morning
in question. Id. at 246. Trooper Wolfe also stated, “[Lemley] said that she
was told by [Yeaples] and [Barden] that the bruising on [Victim]’s face was
from her choking on cigarette butts a week prior and the older two kids
throwing things at [Victim]’s face. She said she was also told that [Victim]’s
brother … was standing on her face.” Id.

      He noted Lemley stopped by police barracks on November 12, 2013,
the same day Yeaples was being interviewed, and “she wanted to know what
was going on with the case and basically to say that she would never believe
that Mr. Yeaples could do something like this.” Id. at 249.
17
    Barger also testified at the trial and his testimony was substantially
similar to his mother’s statements. He stated that on October 26th, he heard
Barden and Yeaples arguing from his room in the basement. Id. at 201. He
saw Barden and Victim as they were leaving. Like Lemley, Barger also
(Footnote Continued Next Page)


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      Yeaples then took the witness stand. He described both the bathtub

and the cigarette butt incidents.          Id. at 211-212.      He then testified that

nothing out of the ordinary happened on the evening of October 25, 2013.

Yeaples stated that the following morning, he woke and heard his son

screaming and crying, and Barden “was yelling at him, telling him to roll the

F over, go the F back to sleep, quit touching stuff.”             Id. at 217. He also

noticed Victim was crying so he picked her up and she bit him on the finger.

Id. at 218. Yeaples said he tried to make her stand in the corner several

times but she kept sitting down.                 Id. at 219.   He testified Victim was

conscious, not in distress, and was sitting down because he thought she did

not want to be in timeout.              Id.       Yeaples alleges Barden “got pretty

belligerent and told [him], do not discipline [Victim]. She is not [his] child.”




                       _______________________
(Footnote Continued)

stated Victim did not look like how the hospital pictures depicted her as they
were exiting the home. Id. at 204.

       On cross-examination, when asked if Barger remembered telling
Corporal Chodkowski that he did not understand why Barden and Yeaples did
not take Victim to the hospital for the bruising, Barger said he could not
recall such statements. Id. at 205.

     Furthermore, Corporal Chodowski testified that he interviewed Barger
and Barger said he did not hear Yeaples and Barden arguing on October 26th
and he did not see the mother and daughter leave. Id. at 251-252.



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Id. at 220. He then placed Victim in Barden’s lap and told her to take the

child and leave.18

       Yeaples testified Barden did not want to leave at first but then,

       she got upset enough that she got up, she walked over to the
       wall where the box of toys was. It was on top of her purse. She
       was going to get her purse. She picked up the [cardboard] box
       of toys and she wasn’t paying attention and she threw it behind
       her and it ended up landing on [Victim] whe[r]ever she was lying
       on the floor.

Id. at 221. Yeaples stated he went over to pick up Victim but Barden moved

him out of the way, carried Victim and left the house. Yeaples then followed

them outside and said Barden “kind of tossed” Victim into the car seat and

did not have anything covering the child. Id. at 223. Yeaples testified he

texted Barden and told her that he loved her and Victim and he wanted

them to come back. Id. at 225. He said she replied that she did not want

to leave and he made her, and that she was going to the hospital because

Victim was unresponsive. He also stated he tried to look for her on Barger’s

bicycle.

       Yeaples indicated he was interviewed by police on two occasions. He

explained that during the second interview,

       they kept asking me the same questions repeatedly and
       repeatedly. Kept calling me an animal. Told me, if you do not
       tell us what we want to hear or anything different, you are going
____________________________________________


18
     On cross-examination, Yeaples testified, “Whenever I put [Victim] into
[Barden’s] lap, [Barden] did not bother to reach out and grab her and she
let her hit the floor.” Id. at 241.



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       to be charged with this and you are going to be put in jail. I told
       them that while the kids were eating, I had walked into the room
       with stuff in my hands. Like I said, we have a hardwood floor
       and no furniture in the room. So I walked in and I slipped on
       one of the kids’ plates. I lost my balance and in the process I
       knocked my youngest daughter over.

Id. at 232. Yeaples claims the incident occurred “probably close to a week

before” October 26, 2013. Id. at 233.19 He denied ever physically abusing

Victim. Id. at 237.20

       Following deliberations, on December 11, 2014, the jury convicted

Yeaples of aggravated assault. The jury also made the determination that

the victim was less than 13 years of age at the time of the offense. See

Verdict, 12/11/2015. On February 24, 2015, the court imposed a term of 90

to 180 months’ imprisonment.21            The following day, Yeaples filed a post-


____________________________________________


19
    Trooper Wolfe testified that Yeaples admitted the incident happened on
Friday, October 25, 2013. Id. at 248. Yeaples also stated could not
remember when the bathtub incident occurred. Id. at 238.
20
   On cross-examination, it was revealed that he told police he was aware
she had “some fingerprint bruises” on her back, legs, and face. Id. at 243.
21
    We note on December 16, 2014, the Commonwealth provided notice of
its intention to invoke the five-year mandatory minimum sentence for
aggravated assault at Yeaples’ sentencing. See 42 Pa.C.S. § 9718(a)(2).
However, neither the February 24, 2015, sentencing hearing, the sentencing
order, nor the Guideline Sentencing Form indicates the court imposed a
mandatory minimum sentence. Moreover, Yeaples had a prior record score
of five and offense gravity score of 11; therefore, his seven and one-half to
15 year sentence was within the standard range. See N.T., 2/24/2015, at
12. Accordingly, we need not conduct an Alleyne v. United States, 133
S.Ct. 2151 (2013), analysis in our review of the matter.



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sentence motion. Argument was heard on June 30, 2015. The trial court

denied the motion on July 15, 2015, and this appeal followed.22

       In his first argument, Yeaples claims there was insufficient evidence to

support his conviction for aggravated assault because “the Commonwealth

failed to present sufficient evidence that it was [Yeaples] who caused the

injuries to the victim, an essential element[.]”       See Yeaples’ Brief at 18.

Specifically, he points to the following evidence:       (1) Barden testified the

Victim did not look like the same child in the hospital pictures as the child

she saw on the evening of October 25, 2013, and the morning of October

26, 2013, with respect to the bruising and laceration; (2) when Barden

arrived at Toy’s house with Victim on the morning of October 26th, Toy

testified Victim had bruises all over her body; and (3) Dr. Eichman testified

Victim’s injuries had to have been inflicted within the 24 hours of arriving at

the hospital and Victim would not have been acting normally due to the

internal injuries, but Barden testified she noticed nothing was unusual or

abnormal with Victim.        Id. at 18-22.     Yeaples concludes, “[I]n reviewing

Barden’s own testimony, when she left her residence on the morning of

October 26, 2013, the child did not have the injuries that Henry Toy

observed when Barden arrived at his residence.” Id. at 22.
____________________________________________


22
     On July 31, 2015, the trial court ordered Yeaples to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Yeaples filed a concise statement on August 21, 2015. The trial court issued
an opinion pursuant to Pa.R.A.P. 1925(a) on September 2, 2015.



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     We begin with our well-settled standard of review:

     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. Melvin, 103 A.3d 1, 39-40 (Pa. Super. 2014) (citation

omitted), appeal denied, 112 A.3d 651 (Pa. 2015).

     A person is guilty of aggravated assault, in relevant part, if he

“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. § 2702(a)(1).

It is well accepted that identity is an element of all criminal offenses in

Pennsylvania.   Commonwealth v. Brooks, 7 A.3d 852, 857 (Pa. Super.

2010), appeal denied, 21 A.3d 1189 (Pa. 2011). Moreover, “[e]vidence of

identification need not be positive and certain to sustain a conviction.”




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Commonwealth v. Orr, 38 A.3d 868, 874 (Pa. Super. 2011) (en banc),

appeal denied, 54 A.3d 348 (Pa. 2012).

        Here, the court concisely found: “[T]he testimony of the victim’s

mother provided enough circumstantial evidence for the jury to conclude

that [Yeaples] inflicted the injuries on the child.             Although [Yeaples] now

contends that such evidence          was not credible, we              defer credibility

determinations to the jury’s consideration.” Trial Court Opinion, 9/2/2015,

at 3.

        Viewing   the   evidence    in    the     light   most      favorable   to    the

Commonwealth, and drawing all reasonable inferences therefrom, we agree

with the trial court’s determination. The Commonwealth presented sufficient

circumstantial    evidence   that   Yeaples       was     the    perpetrator,   and   he

intentionally caused serious bodily injury to Victim. Indeed, Victim sustained

bruising all over her body, a laceration to her head, and massive internal

injuries that required two blood transfusions. Yeaples was Victim’s caretaker

and the only adult individual around her during most of the time when Dr.

Eichman opined the internal injuries were to have occurred. It also merits

mention Yeaples testified he never saw Barden physically hurt Victim.

        The multiple stories of how Victim got certain injuries that Yeaples

provided to Barden and the police were not consistent with the injuries that

Victim had received according to Dr. Eichman’s expert testimony.                 In her

expert opinion, Dr. Eichman ruled out Victim’s young siblings as the


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offenders.     Yeaples also provided inconsistent statements regarding when

certain events took place, including “the slipping on the plate” incident.

Compare N.T., 12/10/2014-12/11/2014, at 157-158 with id. at 232-234.

       Moreover, to the extent Yeaples points to Barden’s testimony that she

never saw the marks on Victim’s body besides the facial bruising, the jury

was free to reject this testimony. See Melvin, supra.23 Lastly, with regard

to his implication that the injuries could have been inflicted during the time

period when Barden and Victim left their house and went to Toy’s home, we

find that this argument goes to the weight of the evidence rather than its

sufficiency.   We will discuss Yeaples’ weight claim below.   Based on these

considerations, we conclude the Commonwealth provided sufficient evidence

to establish Yeaples’ identity as the perpetrator of the crime. Accordingly,

Yeaples is not entitled to relief on this issue.

       Next, Yeaples argues the verdict was against the weight of the

evidence.24 See Yeaples’ Brief at 22. Specifically, he largely reiterates his

sufficiency argument, stating:

       [B]ecause Barden herself testified (which was the only testimony
       provided to prove [Yeaples] was the perpetrator as opposed to
       someone else, including Barden), that the child did not have the
       injuries observed by Henry Toy on the evening of October 25,
____________________________________________


23
   The jury was also free to reject the testimony of Lemley and Barger that
they never saw any injuries on the child.
24
    Yeaples properly preserved his challenge to the weight of the evidence by
raising it in a post-sentence motion. See Pa.R.Crim.P. 607(A).



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         2013, or on the morning of October 26, 2013, prior to Barden’s
         arrival at Toy’s residence, the verdict is, indeed so contrary to
         the evidence as to shock one’s sense of justice.

Id. at 23.

         Appellate review of a weight of the evidence claim is well-established:

         A weight of the evidence claim concedes that the evidence is
         sufficient to sustain the verdict, but seeks a new trial on the
         ground that the evidence was so one-sided or so weighted in
         favor of acquittal that a guilty verdict shocks one’s sense of
         justice. Commonwealth v. Widmer, 560 Pa. 308, 318–20,
         744 A.2d 745, 751–52 (2000); Commonwealth v. Champney,
         574 Pa. 435, 443–44, 832 A.2d 403, 408–09 (2003). On review,
         an appellate court does not substitute its judgment for the finder
         of fact and consider the underlying question of whether the
         verdict is against the weight of the evidence, but, rather,
         determines only whether the trial court abused its discretion in
         making its determination. Widmer, 560 Pa. at 321–22, 744
         A.2d at 753; Champney, 574 Pa. at 444, 832 A.2d at 408.

Commonwealth v. Lyons, 79 A.3d 1053, 1067 (Pa. 2013), cert. denied,

134 S.Ct. 1792 (U.S. 2014).

         Here, the trial court found the evidence “weighty enough to sustain the

conviction.” Trial Court Opinion, 9/2/2015, at 3. We again agree with the

court’s conclusion.     Yeaples fails to explain in what manner the trial court

abused its discretion in denying his weight claim.        Rather, his argument

consists largely of allegations that the greater weight of evidence fell in his

favor.    As such, he asks this Court to reweigh the evidence; however, we

decline to do so.       As our Supreme Court has made clear, we may not

reweigh the evidence and substitute our judgment for the trial court’s

decision. See Lyons, supra. Therefore, Yeaples’ weight claim fails.


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      Lastly, Yeaples argues the trial court erred in denying his motions in

limine with respect to prior bad acts and inflammatory photographs.           See

Yeaples’ Brief at 24.

      “When reviewing the denial of a motion in limine, this Court
      applies an evidentiary abuse of discretion standard of review. . .
      . It is well-established that the admissibility of evidence is within
      the discretion of the trial court, and such rulings will not form
      the basis for appellate relief absent an abuse of discretion.”
      Rivera, 983 A.2d at 1228 (citation and quotation marks
      omitted). Thus, the Superior Court may reverse an evidentiary
      ruling only upon a showing that the trial court abused that
      discretion. Commonwealth v. Laird, 605 Pa. 137, 988 A.2d
      618, 636 (Pa. 2010). A determination that a trial court abused
      its discretion in making an evidentiary ruling “may not be made
      ‘merely because an appellate court might have reached a
      different conclusion, but requires a result of manifest
      unreasonableness, or partiality, prejudice, bias, or ill-will, or
      such lack of support so as to be clearly erroneous.’” Id. (quoting
      Commonwealth v. Sherwood, 603 Pa. 92, 982 A.2d 483, 495
      (Pa. 2009)). Further, discretion is abused when the law is either
      overridden or misapplied. Commonwealth v. Randolph, 582
      Pa. 576, 873 A.2d 1277, 1281 (Pa. 2005).

Commonwealth v. Hoover, 107 A.3d 723, 729 (Pa. 2014).

      With respect to the prior bad acts evidence, Yeaples asserts that in Dr.

Eichman’s report, she opines Yeaples’ “‘stories about [Victim’s] choking on

cigarette butts and being held under the water DO NOT explain her injures.’”

Id. at 25 (capitalization in original; emphasis removed). Yeaples complains:

      [T]here was no need to introduce evidence of the prior incidents
      at issue because the Report states that they did not cause the
      injuries to the victim for which [Yeaples] was on trial. Moreover,
      the prior incidents were clearly prejudicial to [Yeaples] as they
      were likely viewed by the jury as tending to show that [he] was
      the person who injured the victim. Thus, the probative value of
      (need for) the prior incidents involving the cigarette butts and
      the bathtub, were greatly outweighed by their potential

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      prejudicial effect and, as such, their admission as evidence at
      trial constitutes reversible error.

Id. (italics in original).

      We are guided by the following:

      Evidence of prior bad acts is generally inadmissible to prove
      character or to show conduct in conformity with that character.
      Pa.R.E. 404(a)(1). Such evidence is, however, admissible when
      offered to prove other relevant facts, such as motive,
      opportunity, intent, preparation, plan, knowledge, identity,
      absence of mistake, or res geste to give context to events
      surrounding a crime. [Pa.R.E. 404(b)(2)] While evidence of
      prior bad acts may be relevant and admissible, due to the
      potential for misunderstanding, cautionary instructions are
      sometimes required.

Commonwealth v. Reid, 99 A.3d 427, 451 (Pa. 2014) (some citations

omitted).

      In denying Yeaples’ motion in limine, the trial court found the

following:

             If the Commonwealth introduces [Yeaples’] statements to
      prove that the other wrongful acts actually occurred, the
      statements would be probative of [Yeaples’] attitude towards
      and relationship with [Victim] … as well. The incidents, which
      involve [Yeaples] repeatedly allowing the child to become
      physically injured without seeking medical attention, tend to
      show that [Yeaples] did not much care about the victim, possibly
      because she is not his biological child. [Yeaples’] possible dislike
      for the victim is also probative of a motive to assault her.
      Lastly, because the examining physician is expected to testify
      that those prior incidents could not have caused the injuries that
      the child manifested at Children’s Hospital days later, [Yeaples’]
      linking of the prior incidents with the child’s manifested injuries
      is probative of possible consciousness of guilt and [Yeaples’]
      need to conceal his aggravated assault of the victim.

            The Court also finds that the probative value of the above
      evidence outweighs its potential for unfair prejudice.       The

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     incidents suggest that [Yeaples] did not take good care of the
     victim. However, it is important for the jury to hear [Yeaples’]
     explanations of what happened and how the victim’s injuries
     allegedly occurred so that they can assess how the situations
     bear on [Yeaples’] attitude toward the victim and [his] possible
     motive to cause the child harm.

           On the other hand, if the statements that [Yeaples] made
     to the state police are offered to prove that he said something
     probative of guilt, they are admissible, as well. They tend to
     show (1) that the victim was in his custody and care; (2) that he
     knew the victim’s injuries were serious; and (3) that he felt
     obligated to offer a fairly innocuous explanation for them
     because he was conscious of his own guilt and needed to conceal
     the fact that he had deliberately caused the victim’s injuries.
     The fact that [Yeaples’] explanations of how the victim’s injuries
     occurred may seem rather far-fetched to a fact finder may
     demonstrated a desperate effort to conceal [Yeaples’] true role
     in her injuries.

Trial Court Opinion, 12/9/2014, at 3-4.

     We agree with the trial court’s well-reasoned analysis. While Yeaples

may be correct that the prior bad acts evidence did not establish what

caused Victim’s injuries, the evidence did demonstrate the relationship

between     Yeaples   and   Victm   as   well   as   the   potential   motive   and

consciousness of guilt for Yeaples’ actions.           Likewise, his statements

regarding these incidents were probative of his guilt.          Furthermore, the

probative value of this prior bad acts evidence also outweighed the risk of

unfair prejudice.     The Commonwealth was entitled to show the complete

history of the case. Therefore, we conclude the trial court did not abuse its

discretion in denying Yeaples’ motion in limine on this prior bad acts

evidence.


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       With regard to the photographs, Yeaples notes that at trial, 13

photographs depicting Victim’s injuries were introduced for the purpose of

demonstrating whether Yeaples exhibited an extreme indifference to the

value of human life. Id. Yeaples claims:

       [The court] ignores the fact that [Yeaples] stipulated that the
       victim’s injuries were such that whoever inflicted them did so
       with an extreme indifference to the value of human life. Thus,
       the photographs were clearly not needed for the purpose
       enunciated by the [trial] court in its ruling permitting their
       permission [sic].     Because there was no need for the
       photographs, they had no probative value whatsoever and,
       therefore, their inflammatory nature and resulting prejudicial
       effect rendered them clearly inadmissible.

Yeaples’ Brief at 26 (citations omitted).

       Keeping the above-stated standard of review in mind, we are also

guided by the following: “The admission of photographs is a matter resting

with the discretion of the trial court.” Commonwealth v. Tharp, 830 A.2d

519,   530     (Pa.   2003),   cert.   denied,   541   U.S.   1045   (2004).   In

Commonwealth v. Malloy, 856 A.2d 767 (Pa. 2004), the Pennsylvania

Supreme Court set forth a two-part test for the admissibility of photographs.

       First, the court must decide whether a photograph is
       inflammatory by its very nature. If the photograph is deemed
       inflammatory, the court must determine whether the essential
       evidentiary value of the photograph outweighs the likelihood that
       the photograph will improperly inflame the minds and passions
       of the jury.

Id. at 776. Additionally, “the fact that a medical examiner can describe the

victim’s wounds to the jury does not render photographs of those wounds

irrelevant.”    Commonwealth v. Haney, 131 A.3d 24, 38 (Pa. 2015)

                                        - 24 -
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(quotations and citation omitted).      To be considered inflammatory, a

photograph “must be of such a gruesome nature or be cast in such an unfair

light that it would tend to cloud an objective assessment of the guilt or

innocence of the defendant.” Commonwealth v. Dotter, 589 A.2d 726,

729 (Pa. Super. 1991) (citation and quotation omitted), appeal denied, 607

A.2d 249 (Pa. 1992).

      Here, the photographs at issue depicted the bruising on multiple parts

of Victim’s body, including her face, as well as the laceration on her skull.

See Commonwealth’s Exhibits 1-13. In denying Yeaples’ motion in limine,

the trial court determined:

             The question is whether the 13 photographs’ probative
      value is outweighed by a danger of unfair prejudice or needlessly
      presenting cumulative evidence. [Yeaples] contends that the
      photographs are not needed to prove aggravated assault
      because the examining physician from Children’s Hospital will
      provide graphic testimony about the child’s various injuries at
      trial. [Yeaples] also contends that the child’s injuries themselves
      support a finding of extreme indifference to human life;
      therefore, the photographs are not needed to demonstrate
      extreme indifference to human life.

             However, the Court believes that the photographs are
      probative to the issue of whether [Yeaples] exhibited an extreme
      indifference to the value of human life. A visual depiction of the
      child’s visible injuries is not the same as a physicians’ verbal
      description of the child’s injuries. As such, the evidence is not
      needlessly cumulative. The Court finds that the probative value
      of the photographs is not outweighed by the danger of unfair
      prejudice.

Trial Court Opinion, 12/9/2014, at 2-3 (footnote omitted).




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       In reviewing the 13 photographs, we cannot conclude the trial court

abused its discretion in determining that the photographs were not

inflammatory. The photographs were taken in a hospital setting, and were

an accurate depiction of the nature and extent of Victim’s physical injuries at

the time she was admitted to the hospital.         Moreover, as the trial court

noted, the visible injuries as shown in the photographs were not the only

injuries Dr. Eichman discussed during her testimony, which included the

extensive internal injuries Victim suffered, so the evidence cannot be

considered cumulative. Additionally, the photographs contradicted Yeaples’

testimony that Victim’s injuries were minor and she had “some fingerprint

bruises[.]” N.T., 12/10/2014-12/11/2014, at 243.

       Furthermore, even accepting, arguendo, the argument that the

photographs are inflammatory, we would deem this claim meritless since the

photographs were highly probative as they related to the issue of whether

Yeaples exhibited an extreme indifference to the value of human life. See

18 Pa.C.S. § 2702(a)(1). We note the record does not establish the parties

formally stipulated to the fact that the circumstances regarding the injuries

manifested an extreme indifference to the value of human life.25 Therefore,

____________________________________________


25
     At the motions hearing, the following exchange took place:

       THE COURT: Are you willing to concede that it is not just serious
       bodily injury, but under circumstances manifesting extreme
       indifference to the value of human life? Are you willing to
(Footnote Continued Next Page)


                                          - 26 -
J-S42016-16


we find the trial court did not err in denying Yeaples’ motion in limine

regarding these photographs. Accordingly, his final argument fails.

                       _______________________
(Footnote Continued)

      concede that whoever inflicted those injuries acted within that
      framework?

      [Defense counsel]: I am, because the doctor will testify and she
      testified, I believe, at the CYS hearing … that this child was
      within literally minutes of death and the child -- and I read
      through the medical reports. The child has lacerated spleen,
      liver, all of her internal organs, plus the bruising to the face,
      yeah, it would be. I think if this child --

      THE COURT: Have you talked to your client about that?

      [Defense counsel]: Yes.

      THE COURT: That he would be willing to concede that serious
      bodily injuries and that whoever did this acted under
      circumstances manifesting extreme indifference to the value of
      human life?

      [Defense counsel]: Well, I don’t really think it matters from my
      client’s standpoint.

      THE COURT: No. I asked you if you would be willing to stipulate
      to that?

      [Defense counsel]: I mean, it doesn’t make any difference
      because the injuries, themselves, would support a conviction,
      whether or not there was -- of aggravated assault.

N.T., 12/8/2014, at 31-32. Furthermore, Yeaples does not point anywhere
in the trial notes of testimony where the parties stipulated to this element of
the crime.

     It also merits mention that at trial, counsel for Yeaples requested the
admission of the photographs to impeach Barden.           N.T., 12/10/2014-
12/11/2014, at 73 (“[Defense counsel]: At this point I think I need to use
them, too, to impeach the witness, so I think they can come in.”).



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     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/19/2016




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