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July 23, 1997


Appeal from the Order of the Superior Court, dated October 19, 1995 at Nos. 3222 & 3296 Phila. 1994, Affirming in Part and Reversing in Part the Order of the Court of Common Pleas of Northumberland County, dated August 22, 1994 at No. CR-92-712. JUDGE(S) BELOW: CCP - Hon. Barry F. Feudale / SUPERIOR - POPOVICH, JOHNSON, HOFFMAN, JJ.

Before: Flaherty, C.j., Zappala, Cappy, Castille, Nigro And Newman, JJ. Messrs. Justice Zappala and Cappy concur in the result.

The opinion of the court was delivered by: Nigro


DECIDED: JULY 23, 1997

Appellant Samuel English appeals from the Superior Court's reversal of the trial court's grant of a new trial and its affirmance of the trial court's denial of his motion for arrest of judgment. For the reasons presented herein, we affirm.

On March 8, 1991, Appellant was present at the residence of Sabrina Miller, with whom he had fathered a son, two month old Ryan Miller. Ms. Miller's estranged husband, Stephen Miller, was the father of her first child, Stephen Jr. Mr. Miller had arranged earlier that day to pick up Stephen Jr. at 7:00 p.m. for visitation. Hoping to avoid any conflict between her husband and Appellant, Ms. Miller asked Appellant to leave the premises until after Mr. Miller had departed. Appellant agreed and occupied himself at a local bar until 8:00 p.m. While at the bar, he consumed three to five beers and some whiskey. He then purchased two six-packs of beer and returned to Ms. Miller's residence. He ate dinner with Ms. Miller and spent the evening watching television. During this time, Ryan slept on one of the couch cushions over which Ms. Miller had wrapped two blankets.

At 3:00 a.m., Ryan's crying awakened Ms. Miller. She changed and fed the child, and the two watched television and played until 5:00 a.m., when they fell asleep on a reclining chair with Ms. Miller holding the child in her arms. At some point during the next several hours, she felt Ryan being lifted off of her.

At 8:00 a.m., Ms. Miller was awakened by a phone call. As she answered the phone, she observed Appellant sleeping face down on the couch with his head at the left end and his body extended so that his lower legs were lying across Ryan's blankets at the right end of the couch and his feet were hanging over the right armrest. After learning that the call was for Appellant, she woke him up and inquired as to Ryan's whereabouts. Appellant indicated that the child was on the couch, but Ms. Miller did not see him until she raised one of the blankets at the right end of the couch. She then found Ryan lying face down and not breathing.

An ambulance was summoned. Although cardiopulmonary resuscitation was performed at the site and on the way to the hospital, the child did not respond and was pronounced dead after emergency room treatment failed as well.

After a police investigation, Appellant was charged with involuntary manslaughter. See 18 Pa. C.S. § 2504(a) (Supp. 1997). *fn1 Trial ensued, and Appellant was convicted by a jury. However, after post-trial motions had been filed, the trial court ordered a new trial based on its Conclusion that the cumulative effect of two alleged errors during the proceedings had prejudiced Appellant and that a new trial was warranted in "the interests of Justice." Trial Ct. Order, 8/22/94, at 3 n.1. Appellant's request for an arrest of judgment was denied.

Cross-appeals were filed challenging the trial court's order. The Superior Court examined the two alleged errors Appellant complained of and concluded that both had been waived. Accordingly, the Superior Court reversed the lower court's grant of a new trial, finding no merit to the determination that the cumulative effect of these errors warranted a new trial. *fn2 The denial of Appellant's arrest of judgment motion was affirmed and the case was remanded for reinstatement of the verdict and sentencing.

We granted allocatur to determine whether the Superior Court erred in reversing the trial court's grant of a new trial in "the interests of Justice" due to the cumulative effect of the two errors Appellant identifies.

The first of these errors centers on the testimony of Dr. Wayne Ross, the forensic pathologist who performed the autopsy on Ryan Miller. On direct examination, Dr. Ross testified that the child had died of cardiopulmonary arrest due to complications of asphyxia. See N.T. at 153. The asphyxia was caused by a combination of chest compression and suffocation. See id. at 168. Further, Dr. Ross opined that the nature and position of certain marks on the child's face indicated to him that the child had died while lying on its stomach, with a weight across its back and head such that the child's mouth was pressed into a couch cushion near one edge and its nose, which was extended just over the edge of the cushion, was forced into the side of the cushion. See id. at 165-69.

Just after this, the Commonwealth asked Dr. Ross if a two month old child would be able, on its own, to maneuver his head into a position similar to the one Ross believed Ryan Miller had died in. Defense counsel objected, arguing that this was beyond Dr. Ross's expertise. The objection was overruled, and Ross stated his belief that it was "extremely unlikely" that a two month old infant would be able, on its own, to move his head into the position in question. Id. at 173. The Commonwealth then asked Dr. Ross if, in his opinion, there would have to have been some "outside force" applied to the child's body to create the facial marks he had described. After Ross answered in the affirmative, defense counsel again objected, arguing that the Commonwealth's questions were beyond the ...

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