Com. v. Pittman, S. ( 2014 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
SHANE DOUGLAS PITTMAN,
Appellant No. 835 MDA 2014
Appeal from the Judgment of Sentence Entered November 21, 2011
In the Court of Common Pleas of Fulton County
Criminal Division at No(s): CP-29-CR-0000271-2009
BEFORE: BENDER, P.J.E., SHOGAN, J., and MUSMANNO, J.
MEMORANDUM BY BENDER, P.J.E.: FILED NOVEMBER 18, 2014
Appellant, Shane Douglas Pittman, appeals from the judgment of
sentence of 20-40 years’ incarceration, imposed following his conviction for
third degree murder. The sole issue in this direct appeal is whether there
was sufficient evidence of malice to sustain Appellant’s conviction. After
careful review, we affirm.
On February 1, 2010, Appellant was charged by criminal information
with criminal homicide and endangering the welfare of children. Appellant
initially pled guilty to the offense of third degree murder on May 12, 2011.
However, he subsequently withdrew his plea on July 1, 2011. On September
21, 2011, the trial court nolle prossed the endangering the welfare of
children charge at the Commonwealth’s request. Appellant’s jury trial
commenced on September 28, 2011, and on September 29, 2011, the jury
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convicted Appellant of third degree murder. The following facts were
presented at Appellant’s trial:
[T]wo-year-old Kylie York (“Kylie”) died on December 5, 2009,
from blunt force trauma to the head and neck.
On December 2, 2009, Shannon Wood (“Wood”), Kylie’s
mother and [Appellant]’s girlfriend, returned home from work at
1:00 p.m. to find her daughter “asleep” on the couch.
[Appellant], who had been watching Kylie while her mother
worked, informed Wood that Kylie had vomited. Since Kylie
[complained of] a stomach ache the day before, Wood called and
made an appointment with Kylie’s pediatrician. When Wood
attempted to wake Kylie to take her to her doctor’s appointment,
she was unable to do so. [Appellant] and Wood rushed Kylie to
the Fulton County Medical Center. In the evening of December
2, 2011, Kylie was transferred to Hershey Medical Center
[(HMC)]. Despite the efforts of a team of pediatricians in the
Pediatric Care Unit at Hershey Medical Center, Kylie died on
December 5, 2009.
Trial Court Opinion (TCO), 6/17/2014, at 1-2 (internal citations omitted).
Kylie had spent Thanksgiving with her father, who returned the girl to
Wood on Sunday, November 29, 2009. Although Wood noticed that Kylie
had a bruise on her head, she indicated that, over the next few days, Kylie
did not seem abnormal in any way. Wood testified that apart from the
stomach ache the night before, Kylie was also in a normal condition while
Wood was getting ready to leave for work at 7:45 a.m. on December 2,
2009. At that time, Wood gave Kylie something to eat, turned on a movie,
and left her on the bed where Appellant was still sleeping. Wood’s shift
started at 8:00 a.m.
Appellant’s testimony confirmed that he was home alone with Kylie on
the morning of December 2, 2009, until Wood returned at 1:00 p.m. He
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awoke at about 8:00 a.m., when Wood was leaving for work, but he and
Kylie both dozed off soon thereafter. When he re-awoke, Kylie was still at
the foot of the bed, watching a blank screen. He took her to the kitchen
where he fed her some sherbet, but she only took a few bites. He then tried
to color with Kylie in the living room, an activity they enjoyed doing together
before. After coloring for a while, Kylie threw up. Appellant
carried her to the bathroom to clean her up. Kylie then helped
dress herself and walked to the coach where she lay down and
asked for her mom and a cup of juice. Kylie then fell asleep and
never woke up. On the stand, [A]ppellant denied that he told
police [that] Kylie’s head had snapped back and forth
approximately ten times as he ran with her from the living room
to the bathroom or that he had dropped Kylie into the tub.
[Appellant] admitted that he used the words “snapped” and
“dropped” in two written statements but only because they were
suggested by the [interviewing policemen].
TCO, at 5 (internal citations omitted).
The Commonwealth presented several expert witnesses who “painted
a very different picture of the events of December 2, 2009.” Id. These
experts testified that “the injuries sustained by Kylie could not have been
caused by simply running with her from the living room to the bathroom as
[Appellant] alleged to police and later to the jury.” Id. at 6.
Dr. Samuel Land, a forensic pathologist, performed the autopsy on
Kylie. He testified that Kylie died “as a result of blunt force trauma to the
head and neck.” N.T., 9/28/11, at 50. He indicated that there was a
whiplash-type injury to the ligaments holding Kylie’s head to the top of her
neck, “three separate impact sites to her head[,]” as well as “some type of
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rotational damage” to the brain. Id. at 51, 55. This type of damage would
have caused a “rapid decrease in [Kylie’s] ability to perform normal
activities” in “seconds to minutes.” Id. at 57.
Dr. Land specifically rejected the idea that Kylie could have sustained
such severe injuries and remained lucid for several days afterward. Id. at
57-58. He also rebuffed the notion that her injuries could have occurred as
a result of “quickly picking Kylie up, quickly running with her down the
hallway, and dropping her in a[n empty bathtub][.]” Id. at 59. Additionally,
Dr. Land rejected that Kylie’s injuries could have been caused or facilitated
by several of the theories offered by Appellant’s expert witness, described
infra. Dr. Land indicated that he had only observed injuries as severe as
those sustained by Kylie in car accidents and high falls, although he noted
that he was “aware of other instances” where children had sustained similar
injuries, such as when “a child has been accidentally struck in the head with
a tree branch or a baseball bat or [by] bricks … fallen from buildings, things
like that.” Id.
Dr. Daniel Brown, a neuropathologist, examined Kylie’s brain and
spinal cord after her death. He testified that Kylie suffered from numerous
hemorrhages of the brain and spinal cord, all of which were “fresh, or less
than three-day[s]-old.” Id. at 76. He also detected a brain bruise on the
left temporal region of Kylie’s brain. He indicated that in the pediatric
population, such bruises only result after the application of a significant
amount of force. He also indicated that there was a “rotation or shaking
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motion of the brain … [t]hat would not have spontaneously happened.” Id.
at 81.
Dr. Robert Tamburro, Jr., a pediatric critical care physician, cared for
Kylie during her hospitalization at HMC. When he began treating Kylie, her
pupils were not reacting to stimuli, a “very worrisome sign of severe injury.”
Id. at 121. The pressure created by bleeding in the subdural space of
Kylie’s brain was “astronomically high.” Id. at 126. Dr. Tamburro indicated
that although the most common and likely source of Kylie’s injuries was
physical trauma, he and the staff at HMC tested Kylie for other potential
causes. The results of those tests showed that there were no “inborn errors
of metabolism[,]” severe dehydration, or clotting issues (coagulopathy)
which could have caused the subdural bleeding in Kylie’s brain. Id. at 127-
29. Dr. Tamburro also indicated that tests did not show any evidence of an
infection. Ultimately, Dr. Tamburro concluded that Kylie’s condition and
subsequent death had been caused by injury rather than an illness, although
he declined to opine regarding whether her injuries were accidental.
Dr. Kathryn Cromwell, a member of the child safety team at HMC,
examined Kylie’s medical records and test results and concluded that Kylie
had suffered compression fractures of her thoracic vertebrae. Dr. Cromwell
indicated that compression fractures of that nature were unlikely in children
even if they fell from “a significant height and land[ed] directly on their
butt[.]” Id. at 161. She said it would be “very rare” for such injuries to
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occur “from falling from a standing height, or falling while running, or failing
off a sofa, something [of] that nature.” Id.
Consequently, Dr. Cromwell concluded that Kylie suffered from an
“inflicted brain injury.” Id. at 162. She specifically rejected that anything
that occurred during Appellant’s version of events could have caused Kylie’s
injuries:
Q. Could the injuries that resulted in her death … been caused
by [Appellant’s] picking Kylie up quickly, if she were on the floor,
say lying on the floor, sitting on the floor, picking her up very
quickly, could that have cause these injuries?
A. No, it could not.
Q. What about [Appellant’s] carrying her down a hallway,
running with her, holding her in his hands out in front?
A. No, that could not have cause her injuries.
Q. Could these injuries that you described, inflicted injuries,
have been caused by [Appellant’s] dropping Kylie into a dry
bathtub from about two feet?
A. Th[at] wouldn’t have caused all of her injuries. It’s
possible it might have contributed to her fractures but not to her
brain injury.
Q. Could these injuries have been caused by [Appellant’s]
restraining Kylie in a bathtub while he was trying to bathe her
and she was trying to get out?
A. I do not believe so.
Q. Could Kylie have self-inflicted the kind of injuries that you
saw, say, I don’t know, by jumping on like a trampoline, or on a
bed flying off and hitting the night stand, or something like
that?
A. No, she could not.
Id. at 162-63.
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On November 21, 2011, the trial court sentenced Appellant to a term
of 20-40 years’ incarceration. Appellant filed a timely post-sentence motion
on November 29, 2011, alleging that the Commonwealth had failed to
disclose evidence of a phone call that Appellant had made while imprisoned
prior to trial. On December 15, 2012, Appellant filed a notice of appeal with
this Court, even though the trial court had yet to rule on his post-sentence
motion. Appellant then field a Praecipe to Discontinue Appeal on January
13, 2012. In an order and opinion dated February 15, 2012, the trial court
denied Appellant’s post-sentence motion. No appeal was taken from that
order.
On January 28, 2013, Appellant filed a timely petition for relief
pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. § 9541 et seq.,
seeking reinstatement of his direct appeal and post-sentence motion rights
nunc pro tunc. By opinion and order dated April 29, 2014, the PCRA court
reinstated Appellant’s direct appeal rights but denied his request to reinstate
his post-sentence motion rights. On May 9, 2014, Appellant filed a nunc pro
tunc notice of appeal from his judgment of sentence.
On May 13, 2014, the trial court ordered Appellant to file a Pa.R.A.P.
1925(b) statement, and Appellant complied with that order by filing his Rule
1925(b) statement on June 6, 2014. The trial court issued its Rule 1925(a)
opinion on June 17, 2014.
Appellant now presents the following question for our review:
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Whether the verdict of Third Degree Murder was supported by
sufficient evidence of a purposeful act committed with malice,
where the acts alleged were that Appellant, in an effort to
expedite care for the child, ran down the hallway with the child’s
head and shoulders jerking back and forth, in addition to
restraining her in a bathtub while her head and body hit the
inside of the bathtub?
Appellant’s Brief at 6.
Our standard of review of sufficiency claims is well-settled:
A claim challenging the sufficiency of the evidence is a question
of law. Evidence will be deemed sufficient to support the verdict
when it establishes each material element of the crime charged
and the commission thereof by the accused, beyond a
reasonable doubt. Where the evidence offered to support the
verdict is in contradiction to the physical facts, in contravention
to human experience and the laws of nature, then the evidence
is insufficient as a matter of law. When reviewing a sufficiency
claim[,] the court is required to view the evidence in the light
most favorable to the verdict winner giving the prosecution the
benefit of all reasonable inferences to be drawn from the
evidence.
Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000) (internal
citations omitted).
The statutory definition of third degree murder is provided by
reference to first and second degree murder as follows:
(a) Murder of the first degree.--A criminal homicide
constitutes murder of the first degree when it is committed by an
intentional killing.
(b) Murder of the second degree.--A criminal homicide
constitutes murder of the second degree when it is committed
while defendant was engaged as a principal or an accomplice in
the perpetration of a felony.
(c) Murder of the third degree.--All other kinds of murder
shall be murder of the third degree. Murder of the third degree
is a felony of the first degree.
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18 Pa.C.S. § 2502.
Case law has further defined the elements of third degree
murder, holding:
[T]o convict a defendant of the offense of third[ ]degree
murder, the Commonwealth need only prove that the
defendant killed another person with malice aforethought.
This Court has long held that malice comprehends not only
a particular ill-will, but ... [also a] wickedness of
disposition, hardness of heart, recklessness of
consequences, and a mind regardless of social duty,
although a particular person may not be intended to be
injured.
Commonwealth v. Santos, 583 Pa. 96, 876 A.2d 360, 363
(2005) (alteration in original) (internal citation, quotation, and
emphasis omitted); see also Commonwealth v. Drum, 58 Pa.
9, 15 (1868) (defining malice as quoted above). This Court has
further noted:
[T]hird degree murder is not a homicide that the
Commonwealth must prove was committed with malice
and without a specific intent to kill. Instead, it is a
homicide that the Commonwealth must prove was
committed with malice, but one with respect to which the
Commonwealth need not prove, nor even address, the
presence or absence of a specific intent to kill. Indeed, to
convict a defendant for third degree murder, the jury need
not consider whether the defendant had a specific intent to
kill, nor make any finding with respect thereto.
Commonwealth v. Meadows, 567 Pa. 344, 787 A.2d 312, 317
(2001) (quoting Commonwealth v. Young, 561 Pa. 34, 748
A.2d 166, 174–75 (1999)).
Commonealth v. Fisher, 80 A.3d 1186, 1191 (Pa. 2013), cert. denied, 134
S. Ct. 2314, (2014).
Appellant claims that the Commonwealth did not present sufficient
evidence of malice because there were no other eyewitnesses to the events
of December 2, 2009, and Appellant’s own account of those events
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presented a “caretaker faced with a sudden emergency and quickly
responding by moving the injured Kylie to the bathroom as fast as possible.”
Appellant’s Brief at 14. Despite the fact that the Commonwealth’s medical
experts determined that Kylie could not have sustained her injuries in a
manner consistent with Appellant’s account of events on that date, he
argues that:
The evidence presented at trial [in] this matter is the exact type
that lends itself to conjecture; experts testifying that because
the injury cannot be explained as described by [Appellant], then
it follows that [Appellant] must be guilty of third degree murder.
This is patently insufficient and a deduction that cannot survive
legal scrutiny.
Appellant’s Brief at 14.
The Commonwealth concedes that “[w]hat happened to Kylie York on
the morning or early afternoon of December 2, 2009, will, perhaps, never be
known.” Commonwealth’s Brief at 7. However, the Commonwealth
contends that sufficient evidence of Appellant’s causation of Kylie’s injuries
was established because Appellant was the only person with Kylie at the
time she sustained her injuries, and because those injuries were simply
inconsistent with anything that Kylie could have realistically inflicted upon
herself. The Commonwealth argues that malice could be inferred from these
circumstances because of the severity of the injuries being inconsistent with
any accidental behavior on Appellant’s part, as well as the fact that he did
not seek medical help once encountering obvious signs of a serious, life-
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threatening injury. The trial court adopted similar reasoning in its Rule
1925(a) opinion.
There was sufficient evidence that Kylie’s fatal wounds were caused by
Appellant. We can reject any notion that the jury accepted Appellant’s
version of events, or any portion thereof, as our standard of review dictates
that we “view the evidence in the light most favorable to the verdict winner
giving the prosecution the benefit of all reasonable inferences to be drawn
from the evidence.” Widmer, 744 A.2d at 751. Furthermore:
In this jurisdiction we have held that where an adult is given sole
custody of a child of tender years for a period of time, and,
during that time the child sustains injuries which may have been
caused by a criminal agency, the finder of fact may examine any
explanation offered and, if they find that explanation to be
wanting, they may reject it and find the person having custody
of the child responsible for the wounds.
Commonwealth v. Meredith, 416 A.2d 481, 482-83 (Pa. 1980).
Here, the evidence demonstrated that Kylie’s injuries were so severe
that she would not have been able to function at a level described by her
mother and other witnesses just prior to the time when Appellant was left
alone with her. Thus, the jury could have reasonably concluded that Kylie’s
injuries could only have been caused by Appellant during that time. As was
the case in Meredith, “the jury was clearly justified in rejecting the
possibility of accidental or self-inflicted injury and finding that [the]
appellant was the person who administered the blows that resulted in this
tragic death.” Id. at 483.
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There was also sufficient proof that Appellant acted with malice when
he caused Kylie’s injuries. Kylie suffered multiple blunt force trauma injuries
to the head, resulting in a type of brain bruise that is only seen after the
application of a significant amount of force. She also sustained severe
damage to her neck, including both a rotational injury and compression
fractures. In Commonwealth v. Matthews, 389 A.2d 71 (Pa. 1978), our
Supreme Court indicated that a “full-grown adult who repeatedly used
excessive force upon a child of … tender years evidenced an extreme
indifference to the value of human life.” Id. at 73.
Moreover, even if the jury concluded that the injuries to Kylie were not
intentionally inflicted by Appellant, the jury could still have found that he
acted with malice. Malice can be found where there is evidence of
“recklessness of consequences, and a mind regardless of social duty,
although a particular person may not be intended to be injured.” Santos,
876 A.2d at 363. Malice “may be inferred and found from the attending
circumstances[.]” Commonwealth v. Young, 431 A.2d 230, 232 (Pa.
1981). The severity of Kylie’s brain injuries was such that she would not
have been able to function normally within minutes, if not seconds, of
sustaining them. Dr. Land indicated that, after Kylie sustained her injuries,
Appellant would have likely encountered at least some of the following
symptoms:
Often times the children develop agonal respirations,
inappropriate breathing patterns. They’re unable to breathe
properly. They’re unable to handle their secretions, because
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they’re swallowing mechanisms may be interfered with. They
can develop seizure activity, posturing, twisting of the limbs,
their eyes can roll up into their head. They do not look normal
at that point. They look damaged.
N.T., 9/28/11, at 57 (emphasis added).
Despite this, Appellant made no effort to seek assistance for Kylie. He
did not call for an ambulance or attempt to take her to an emergency room
located only two minutes away. Instead, he left her on the couch to be
discovered by her mother when she returned from work. From these
circumstances, the jury could have inferred that Appellant acted recklessly
with regard to the consequences of his inaction, and that he abdicated or
was oblivious of a social duty. Accordingly, we conclude that Appellant’s
sufficiency claim lacks merit.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/18/2014
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