Com. v. Hunter, M. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MICHELE RENAE HUNTER :
:
Appellant : No. 1489 MDA 2017
Appeal from the Judgment of Sentence April 24, 2017
In the Court of Common Pleas of Franklin County
Criminal Division at No(s): CP-28-CR-0002417-2014
BEFORE: GANTMAN, P.J., OTT, J., and KUNSELMAN, J.
MEMORANDUM BY OTT, J.: FILED SEPTEMBER 07, 2018
Michele Renae Hunter appeals from the judgment of sentence imposed
on April 24, 2017, in the Court of Common Pleas of Franklin County, following
her conviction by jury of the third-degree murder of her four-year-old stepson,
B.T. Hunter was sentenced to a term of 240-480 months’ incarceration, with
credit for time served.1 In this timely appeal, Hunter raises four issues.
Specifically, she claims: 1) the trial court erred in charging the jurors they
could consider all Hunter’s actions between the time of the assault and the
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1 Regarding the assault that eventually claimed B.T.’s life: The assault took
place in March 2011, and rendered B.T. comatose; he was kept alive by the
use of a ventilator. Hunter was tried and convicted of aggravated assault and
related charges in 2014. She received an aggregate term of 108 to 240
months’ incarceration. B.T. was adopted in 2012; he remained in the care of
his adopted parents until he died, because of the assault, in 2014, shortly
after Hunter was convicted in the first trial. Hunter was subsequently charged
with third-degree murder, resulting in the conviction now on appeal. The jury
in the instant trial was unaware of Hunter’s prior conviction.
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time B.T. went into cardiac arrest 36 hours later in determining malice, 2)
there was insufficient evidence to support the conviction, 3) the trial court
erred in denying Hunter’s post-trial motion to set aside the verdict as against
the weight of the evidence, and 4) the trial court erred in denying Hunter’s
pre-trial motion to suppress evidence. After a thorough review of the
submissions by the parties, relevant law, and the certified record, we affirm.
The parties to this matter must be well acquainted with the factual
history. We direct attention to the trial court’s opinion, dated November 9,
2017, at pages 2-4, for a brief recitation of the facts. We add our additional
detail, taken from the certified record.
On March 15, 2011, Hunter “grabbed [B.T.] by the shoulders and
forcibly basically pushed or threw him away from her. He fell backward
striking his head on the carpeted floor and he was at that point unconscious
essentially.” N.T. Trial, 1/26/2017, at 16.2 Dr. Dias further testified,
This child was abused. The child suffered severe head injury and
putting all the facts together I have no question in my mind this
child suffered abuse of head injury on the morning of the 15 th
when his stepmother [Hunter] at the very least shoved him and/or
threw him across the room and he hit his head on the floor. He
then suffered a head injury at that point, as I said, which was a
fairly severe head injury. He then was left alone without any
medical treatment while all these text messages were going back
and forth describing the sequence of some neurological recovery
from that coma that he had from the head injury on the morning
of the 15th and then we see, again, from the text messages and
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2Testimony of Treating Physician, Dr. Mark Dias, M.D. Dr. Dias is a pediatric
neurosurgeon associated with the Penn State Hershey Medical Center.
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from the father’s statement that evening that he wasn’t doing well
the next day.
Id. at 45-46.
The text messages between Hunter and William Hunter, B.T.’s father,
include a message from Hunter that read: “he’s been stretching and flailing
his arms kinda like retards do on a normal basis lol … so he’s en route to
waking up. It’s like he’s awake but not conscious.” Id., 1/24/2017, at 67.3
The untreated injury essentially caused B.T.’s brain to swell to such a
degree that by the evening of March 16, 2011,
he probably either had a seizure or stopped breathing on his own
because of the brain swelling had reached such a critical point that
his brain was so compromised that he could no longer keep
breathing, so the net effect of that whether it was a seizure or
whether it was from pressure in the head was that he stopped
breathing and had a – basically a cardiorespiratory arrest.
Id., 1/26/2017, at 26.4
On cross-examination, Dr. Dias noted the failure of either Hunter or
B.T.’s Father to respond to the clear medical emergency.
[Defense Counsel]: It’s fair to say that neither Michele [Hunter]
or William Hunter [Father] had taken the necessary steps required
to assist [B.T.], is that correct, I mean, they hadn’t tried to get
medical help as soon as they should have?
[Dr. Dias]: Yeah, I mean, that’s stunning for me but, yes, just
when you – in terms of you talking about concussion and parents
and other adults bringing children to medical attention, I can
certainly tell you from my own personal experience with hundreds
of children with concussions that people tend to overreact and to
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3 Testimony of Detective Scott Mummert.
4 Testimony of Dr. Dias.
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bring them in for medical attention even when they’re really doing
pretty well. It’s stunning to me that somebody would be
unconscious and barely responsive for two days and somebody
wouldn’t take them to the doctor.
Id. at 54.
Hunter’s first issue is a claim the trial court erred in instructing the jury,
after the jury had deliberated and requested clarification regarding what they
could consider in determining malice. Trial counsel were informed of the
question and were given the opportunity to respond to the trial court. After
considering input from counsel, the trial court informed the jury in the
following manner:
The question is, as to the act being done with malice, is it just as
to the shoving act or is the act the entire 36 hours from the
shoving until the time the 911 call was made. Is the act just the
shoving or is the act what was done in the entire 36 hours.
This is your additional instruction on that point. For murder of the
third degree, when deciding whether the defendant acted with
malice, you may consider all evidence regarding her words,
conduct and attending circumstances that may show her state of
mind at the time of the shove.
Actions of the defendant that occurred before, during and after
the shove may all be considered as attending circumstances.
Malice may also exist where the failure to perform a legal duty
was willful and will probably result in the death of the victim.
You may consider all the actions of the defendant in the 36 hour
period of time from the shove to cardiac arrest in determining
whether the Commonwealth has proven the required malice
necessary for the third element of third degree murder.
N.T. Trial, 4/24/2017, at 87 (emphasis added).
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In conference, the defense had objected to that portion of the charge
from the referral to the willful failure to perform a legal duty to the end of the
charge. Specifically, the defense argued there had been no evidence
presented demonstrating there would have been any other outcome had
Hunter immediately taken B.T. for medical care. In response to the objection,
the Commonwealth pointed out Dr. Dias had described the physical/medical
process that began with the shove and B.T striking his head and ending with
his failure to breath and cardiac arrest. See id. at 85-86.
Our standard of review in assessing a trial court's jury instruction
is as follows. “When evaluating the propriety of jury instructions,
this Court will look to the instructions as a whole, and not simply
isolated portions, to determine if the instructions were improper.”
Commonwealth v. Antidormi, 84 A.3d 736, 754 (Pa. Super.
2014) (citations and quotation omitted). A trial court has “broad
discretion in phrasing its instructions, and may choose its own
wording so long as the law is clearly, adequately, and accurately
presented to the jury for its consideration.” Id. (citations and
quotation omitted). “Only where there is an abuse of discretion or
an inaccurate statement of the law is there reversible error.” Id.
(citations and quotation omitted).
Commonwealth v. Miller, 172 A.3d 632, 645 (Pa. Super. 2017).
Our review of the certified record, having paid particular attention to the
medical testimony provided at trial, leads us to conclude the jury charge given
by the trial court was proper. The medical evidence described the ongoing
process that ultimately resulted in B.T.’s death as well as the abject lack of a
timely response by Hunter, as step-mother of this four-year-old child, to
timely obtain medical care for a child that had been rendered immediately
unconscious after being thrown to the floor. The totality of Dr. Dias’s
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testimony, as well as the testimony of other treating medical providers and
the pathologist was sufficient to allow the jury to consider Hunter’s failure to
perform her legal duty to obtain medical attention as evidence of malice.
Accordingly, we believe the instruction accurately described the law and was
appropriate in light of the evidence presented at trial.
Next, Hunter claims the Commonwealth failed to present sufficient
evidence of malice to support a conviction for third degree murder. She
argues B.T.’s death was caused by a single push, and there was insufficient
evidence to show any suggestion of malice.5 We disagree.
The standard of review for a challenge to the sufficiency of the evidence
is both well known and oft-repeated.
The standard of review for a challenge to the sufficiency of the
evidence is to determine whether, when viewed in a light most
favorable to the verdict winner, the evidence at trial and all
reasonable inferences therefrom is sufficient for the trier of fact to
find that each element of the crimes charged is established beyond
a reasonable doubt. The Commonwealth may sustain its burden
of proving every element beyond a reasonable doubt by means of
wholly circumstantial evidence.
The facts and circumstances established by the Commonwealth
need not preclude every possibility of innocence. Any doubt raised
as to the accused's guilt is to be resolved by the fact-finder. As an
appellate court, we do not assess credibility nor do we assign
weight to any of the testimony of record. Therefore, we will not
disturb the verdict 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.
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5Because malice is the only element of the crime challenged, we need not
detail the other elements of the crime.
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Commonwealth v. Wanner, 158 A.3d 714, 717-18 (Pa. Super. 2017)
(citation omitted).
Hunter is correct that, as a general statement of the law, “a single blow,”
or as in this matter a single push, “without a weapon is, ordinarily not
sufficient to establish malice.” Appellant’s Brief at 29, quoting
Commonwealth v. MacArthur, 629 A.2d 166, 168 (Pa. Super. 1993).
However, the trial court correctly notes that it is the totality of the
circumstances that determines malice. See Trial Court Opinion, 11/9/2017,
at 11.
The evidence presented at trial depicts substantially more than a single
push. The record reveals that Hunter is an adult female standing five feet tall
and weighing 175 pounds. A physical description of the child victim, B.T., is
not to be found in the certified record. We know only that he was a four-year-
old boy at the time the fatal injury was visited upon him. It may be presumed,
however, that Hunter was substantially larger than B.T. Dr. Dias testified B.T
effectively was thrown to the floor with such force that when his head struck
the carpeted floor he was rendered immediately unconscious. This evidence
represents a vigorous attack upon a child.
Although his condition waxed and waned, regaining consciousness later
in the day, he remained virtually comatose until his brain swelled to such a
degree that he suffered respiratory and cardiac arrest. It was not until his
eyes rolled back into his head and he stopped breathing that anyone
attempted to obtain medical aid. While B.T. remained unconscious on the first
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day after the assault, Hunter sent texts to her husband, B.T.’s father,
downplaying the extent of the child’s injuries, comparing the child’s seizure-
like actions to those of a “retard”, while adding “lol”6 to the text. The jury was
entitled to consider this callous disregard for B.T.’s well-being as evidence of
malice in Hunter’s abandonment of her duty to provide care for B.T. as well
as malice relating back to the attack on the child. Dr. Dias, a pediatric
neurosurgeon, who has spent his career treating neurologically compromised
children, noted the extensive damage caused by the attack and was stunned
by the subsequent disregard of B.T.’s welfare in failing to obtain any medical
help in a timely manner.
While our recitation of the facts has sanitized the facts underlying this
matter to some degree, it remains clear that what happened to B.T. on the
morning of March 15, 2011, was substantially more than a single push.
Accordingly, our review of the certified record confirms there was sufficient
evidence for the jury to have found Hunter acted with the malice required to
support a finding of third degree murder.
Hunter’s third claim is the verdict is against the weight of the evidence.7
An appellate court’s standard of review when presented with a
weight of the evidence claim is distinct from the standard of review
applied by the trial court:
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6 The acronym, “lol”, stands for “laughing out loud.”
7 This claim was properly preserved via post-trial motion.
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Appellate review of a weight claim is a review of the
exercise of discretion, not of the underlying question of
whether the verdict is against the weight of the evidence.
[Commonwealth v.] Brown, [560 Pa. 410,] 648 A.2d
[1177] at 1189 [(1994)]. Because the trial judge has had
the opportunity to hear and see the evidence presented,
an appellate court will give the gravest consideration to the
findings and reasons advanced by the trial judge when
reviewing a trial court’s determination that the verdict is
against the weight of the evidence. Commonwealth v.
Farquharson, 467 Pa. 50, 354 A.2d 545 (Pa. 1976) [sic].
One of the least assailable reasons for granting or denying
a new trial is the lower court’s conviction that the verdict
was or was not against the weight of the evidence and that
a new trial should be granted in the interest of justice.
[Commonwealth v.] Widmer, 560 Pa. [308] at 321-22, 744
A.2d [745] at 753 [(2000)] (emphasis added).
This does not mean that the exercise of discretion by the trial court
in granting or denying a motion for a new trial based on a
challenge to the weight of the evidence is unfettered. In describing
the limits of a trial court’s discretion, we have explained:
The term “discretion” imports the exercise of judgment,
wisdom and skill so as to reach a dispassionate conclusion
within the framework of the law, and is not exercised for
the purpose of giving effect to the will of the judge.
Discretion must be exercised on the foundation of reason,
as opposed to prejudice, personal motivations, caprice or
arbitrary actions. Discretion is abused where the course
pursued represents not merely an error of judgment, but
where the judgment is manifestly unreasonable or where
the law is not applied or where the record shows that the
action is a result of partiality, prejudice, bias or ill-will.
Widmer, 560 Pa. at 322, 744 A.2d at 753 (quoting Coker v. S.M.
Flickinger Co., 533 Pa. 441, 447, 625 A.2d 1181, 1184-85
(1993)).
Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013).
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On August 28, 2017, the trial court authored a comprehensive opinion
addressing Hunter’s weight of the evidence claim. We have reviewed both the
trial court’s opinion as well as the certified record and we discern no abuse of
discretion in the trial court’s denial of Hunter’s motion for a new trial based
upon the claim the verdict was against the weight of the evidence. The parties
are directed to attach a copy of the trial court’s August 28, 2017 opinion in
the event of further proceedings.
Hunter’s final claim is that the trial court erred in failing to suppress
statements she made to the police. Hunter argues she did not knowingly and
voluntarily waive her Miranda8 rights. Hunter is not entitled to relief.
We note our standard of review when addressing a challenge to
the denial of a suppression motion:
We may consider only the Commonwealth's evidence and
so much of the evidence for the defense as remains
uncontradicted when read in the context of the record as a
whole. Where the record supports the factual findings of
the trial court, we are bound by those facts and may
reverse only if the legal conclusions drawn therefrom are
in error. An appellate court, of course, is not bound by the
suppression court's conclusions of law.
Commonwealth v. Arter, 637 Pa. 541, 151 A.3d 149, 153
(2016) (citation omitted). “[I]t is the sole province of the
suppression court to weigh the credibility of witnesses,” and “the
suppression court judge ‘is entitled to believe all, part or none of
the evidence presented.’ ” Commonwealth v. Blasioli, 454
Pa.Super. 207, 685 A.2d 151, 157 (1996), affirmed, 552 Pa. 149,
713 A.2d 1117 (1998).
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8 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
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Commonwealth v. Fitzpatrick, 181 A.3d 368, 373 (Pa. Super. 2018)
(footnote omitted).
The trial court held a hearing on Hunter’s motion to suppress on October
13, 2015 at which time experts for both Hunter and the Commonwealth
testified regarding Hunter’s state of mind when she waived her Miranda
rights. Each expert posited reasons why Hunter had or had not voluntarily
waived her rights. Ultimately, after considering the testimony and applicable
legal authority, the trial court found that Hunter clearly had knowingly and
voluntarily waived her rights. The trial court’s decision is based upon evidence
of record, in the form of the expert testimony of Dr. Gerald Cooke, a forensic
psychologist. As such, there are no grounds to reverse the trial court’s well
considered decision. In the event of further proceedings, the parties are
directed to attach a copy of the trial court’s January 8, 2016, opinion
addressing Hunter’s motion to suppress.
In the event of further proceedings, the parties are directed to attach
copies to the trial court opinions dated January 8, 2016, August 28, 2017, and
November 9, 2017.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 09/07/2018
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