from the Judgment of Sentence April 8, 2016 In the Court of
Common Pleas of Philadelphia County Criminal Division at
BEFORE: LAZARUS, SOLANO, JJ., and STEVENS, P.J.E. [*]
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"). After a careful review, we affirm.
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 counsel. 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
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
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.
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 preexisting 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
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
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 murder, 20 to 40
years in prison for conspiracy, 10 to 20 years in prison for
aggravated assault, and 21/z 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.
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
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 a result of the
trial 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"?
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.
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.
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.
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 a particular ill-will, and also
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
To convict a defendant of conspiracy, the trier of fact must
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 coconspirators committed an overt act in
furtherance of the agreed 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 coconspirators.
"[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).
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 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.
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 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.
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;
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.
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 (Pa.Super. 2015) (quoting 18
Pa.C.S.A. § 4304(a)). As the trial court indicated
[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.
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.
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