Com. v. Smith, L. ( 2021 )

J-S02024-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
LISA SMITH :
:
Appellant : No. 3302 EDA 2019
Appeal from the Order Entered July 31, 2019,
in the Court of Common Pleas of Montgomery County,
Criminal Division at No(s): CP-46-CR-0001628-2018.
BEFORE: BENDER, P.J.E., KUNSELMAN, J., and NICHOLS, J.
MEMORANDUM BY KUNSELMAN, J.: FILED: JUNE 14, 2021
Lisa Smith appeals from the judgment of sentence of life without parole,
followed by an aggregate sentence of 15 to 30 years of incarceration. A jury
convicted Smith of murder of the first degree for killing her four-year-old son,
Tehjir Smith; conspiring to murder him; endangering Tehjir’s welfare; and
conspiring to endanger his welfare.1 We affirm.
Smith and her boyfriend/co-defendant, Keiff King, began living together
in early 2017. King was not Tehjir’s father.2
____________________________________________
1 See 18 Pa.C.S.A. § 2502(a)), 4301(a)(1), 903(a)(1).
2 King is not a party to this appeal. The jury convicted King of the same
offenses as Smith, and the trial court imposed an identical sentence upon him.
See Commonwealth v. King, 3199 EDA 2019, 2020 WL 4783304 (Pa. Super.
2020) (unpublished decision) (affirming King’s judgment of sentence over his
challenges to the sufficiency of the evidence and the discretionary aspects of
sentencing).
J-S02024-21
Between 2017 and Tehjir’s death (less than a year later), the child
“endured months of physical and emotional abuse at the hands of his mother
[and] King.” Trial Court Opinion, 2/10/20, at 3. This physical abuse included
severe beatings with belts and shoes, slaps to the head, being required to hold
a plank position for hours on end, and a scalding hot shower that sent the boy
into shock.
The trauma rendered Tehjir too weak to stand or remain on a couch on
January 22, 2018. Rather than call 911 immediately, Smith and King feared
law enforcement would be suspicious of their actions, so they attempted to
carrying the boy to a hospital. During the walk Tehjir lost consciousness, and
Smith decided to call 911. King departed before the authorities arrived.
An ambulance responded first, and an EMT tried to revive Tehjir. Next,
a police officer pulled up in marked patrol car, and the EMT informed only the
officer that Tehjir was dead. The police began questioning Smith.
She lied about events and said Tehjir had an asthma attack. The police
arrested Smith; transported her to the station for further questioning; and,
after two-hours of interviewing her, provided Smith with Miranda v. Arizona,
384 U.S. 436 (1966), warnings. After signing a form waiving those
constitutional rights, Smith continued speaking with police for three hours,
recanted her false tale, and dictated a three-page confession to abusing her
son to death with King.
-2-
J-S02024-21
Smith moved to suppress all of her statements to the police. The trial
court suppressed the statements Smith made prior to receiving her Miranda
warnings but refused to suppress her subsequent confession.
The case proceeded to a joint jury trial of Smith and King. Over Smith’s
objection, the trial court admitted King’s redacted confession to the police as
evidence against him. In doing so, the court instructed the jury that it could
only consider King’s confession to decide King’s guilt, because King refused to
testify, and Smith could not cross-examine him regarding his confession.
The jury convicted Smith, and the trial court sentenced her as described
above. Post-trial, Smith moved for judgment of acquittal on the murder and
conspiracy-to-commit-murder charges, because she believed there was not
enough evidence to prove her intent to kill Tehjir. The trial court denied relief,
and this timely appeal followed.
Smith raises the following issues:
1. Whether the trial court erred in denying the motion to suppress
[Smith’s] January 22, 2018, statement . . .
2. Whether the trial court erred in admitting the statement of
[Smith’s] co-defendant, Mr. Keiff King, in violation of Bruton
v. U.S., 391 U.S. 123 (1968) . . .
3. Whether the evidence presented at trial was sufficient to prove
beyond a reasonable doubt that [Smith] had the requisite
intent for the “intentional killing” element of the charge murder
of the first degree or the charge criminal conspiracy to commit
murder of the first degree.
4. Whether the evidence presented at trial was sufficient to prove
beyond a reasonable doubt that Appellant had the requisite
-3-
J-S02024-21
“intent of promoting or facilitating” the commission of the
underlying crime, in this case Murder of the First Degree.
Smith’s Brief at 6-7 (unnecessary capitalization and citations omitted).
The learned Judge Risa Vetri Ferman of the Court of Common Pleas of
Montgomery County authored a detailed, well-reasoned, 1925(a) Opinion,
which correctly disposes of Smith’s four claims of error. We therefore adopt
it as our own.
The trial court explained that the police properly treated Smith while
interrogating her and engaged in no coercive conduct. Thus, Smith’s post-
Miranda statements were voluntarily given and therefore admissible against
her at trial. Also, the trial court did not abuse its discretion in admitting King’s
redacted confession in the joint jury trial, solely for the purpose of inculpating
King. The trial court’s explanation for this evidentiary ruling is rational and
does not override the law. Finally, the trial court correctly held that the
Commonwealth introduced evidence from which the jury could reasonably
infer that Smith intended to kill Tehjir through her repeated acts of horrific
abuse and her failing to seek aid when his health and life were obviously in
peril. The same is true of the conspiracy-to-commit-murder conviction.
The parties shall attach the trial court’s 2/10/20 Opinion to this decision
in all future filings.
Judgment of sentence affirmed.
-4-
J-S02024-21
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/14/21
-5-
Circulated 06/14/2021 10:54 AM
Opinion
IN THE COURT OF COMMON PLEAS
MONTGOMERY COUNTY, PENNSYLVANIA
CRIMINAL DIVISION
COMMONWEALTH OF PENNSYLVANIA CR-1628-2018
vs 3302 EDA 2019
LISA SMITH
OPINION
-1-<'
FERMAN, J. February 10, 2020_ .,'e
' '
C
Factual and Procedural History
Appellant, Lisa Smith, appeals from this court's judgment of sentence
imposed on July 31, 2019, which became final when the court denied her post
sentence motion on October 24, 2019. On June 20, 2019, a jury found
Appellant guilty of one count of first degree murder, 1 one count of criminal
conspiracy to commit first degree murder,? one count of endangering the
welfare of a child, course of conduct, and one count of conspiracy to commit
endangering the welfare of a child, course of conduct.4 On July 31, 2019, this
court sentenced Appellant to a mandatory term of life imprisonment without
the possibility of parole5 on the charge of first degree murder (count 1). On
count 2, conspiracy to commit first degree murder, the court sentenced
1 18 Pa.C.S.A. § 2502(a).
218Pa.C.S.A. $ 903(a)(1).
3 18 Pa.C.S.A. § 4304(a)( I)
4 18 Pa.C.S.A. § 903(a)(1 ).
5 18 Pa.C.S.A. § 1102(a)( I).
Appellant to a term of imprisonment of not less than twenty (20) years nor
more than forty (40) years to run concurrently with the sentence imposed on
count 1. On count 12, endangering the welfare of a child, the court sentenced
Appellant to a term of imprisonment of not less than ten (10) years nor more
than twenty (20) years to run consecutively to the sentence imposed on counts
1 and 2. On count 13, conspiracy to commit endangering the welfare of a
child, the court sentenced Appellant to a term of imprisonment of not less than
five (5) years nor more than ten (10) years to run consecutive to the sentence
imposed on count 12. The court imposed a total aggregate sentence of life
imprisonment plus fifteen (15) to thirty (30) years. Appellant was also
sentenced to pay restitution in the amount of $6,682.00, the amount to be paid
joint and several with co-defendant Keiff King (King").
On August 6, 2019, Appellant filed a timely Post Sentence Motion,
claiming that the verdict rendered was contrary to the weight of the evidence,
and the sentence imposed was manifestly excessive, unreasonable, and an
abuse of discretion. On August 15, 2019, the Commonwealth filed an Answer
to Defendant's Post Sentence Motion. On October 24, 2019, the court denied
Appellant's Post Sentence Motion. On November 18, 2019, Appellant filed a
timely Notice of Appeal with the Superior Court of Pennsylvania. On November
20, 2019, this court ordered Appellant to file a Concise Statement of Matters
Complained of on Appeal ("Concise Statement). On December 2, 2019,
Appellant filed her timely Concise Statement. The undersigned now files her
l 925(a) Opinion.
2
This case involved a 4 year old child, T.S., who endured months of
physical and emotional abuse at the hands of his mother, Appellant, and her
boyfriend, King. The abuse ultimately culminated in T.S.'s murder on January
22, 2018 after a day of repeated abuse, beatings and punishments at King's
home. King's home is located at 1843 Lukens Avenue, in Willow Grove,
Montgomery County, Pennsylvania. At the time this incident occurred,
Appellant was six months pregnant with King's child. (N.T. 6/ 18/ 19 at 180).
By way of background, Appellant began dating King in early 2017.
Beginning around this time, Appellant and T.S. stayed regularly at King's home
in Willow Grove with King, King's two children, ages 3 and 4, King's
grandmother, and King's 18 year-old cousin. (N.T. 6/ 18/ 19 at 180-181). In
the summer of 2017, Smith became pregnant with King's child. This is when
T.S.'s family, friends, and caregivers started seeing injuries on T.S., and
suspected abuse. (N.T. 6/ 19/ 19 at 316, 449-453, 463-464, 479-480, 496,
503-504, 519-521, 546-54 7). As a result, different family members and
caregivers cared for T.S. for periods of the time between September and
December of 2017. (N.T. 6/19/19 at 453-455, 483, 529-530).
Zakiyyah Holly ("Holly"), the mother of T.S.'s half sister, testified at trial
that in June through September of 2017, T.S. would often play at her house
with her children. (N.T. 6/19/19 at 314-315, 325). She testified that around
September of 2017, she observed injuries on T.S.'s back. (N.T. 6/ 19/ 19 at
316). On the day Holly first observed these injuries, Appellant dropped T.S. at
Holly's house and asked her if she had any ointment for T.S.'s back. (N.T.
3
6/19/19 at 316). Holly observed T.S.'s back and described it as, "... it was like
meat and like skin coming off. And I seen (sic) like an older bruise on his back
and stuff like that. ... It looked like a rug burn. It looked he was being drug up
the steps or wherever. It was like really big. It was healing, too. It was
definitely healing. Then it was like an older bruise on the back that didn't have
nothing to do with the scar on his back." (N.T. 6/ 19 / 19 at 316-317). Holly
confronted Appellant when she observed these injuries, and Appellant told her
that T.S.'s injury was the result of a rug burn because "he peed on the toilet."
(N.T. 6/ 19/ 19 at 316-318). Holly also observed that T.S. had a healing black
eye. (N.T. 6/19/19 at 318-319).
Brenda Pauline ("B. Pauline"), Appellant's sister also observed the "welts
and bruises" on T.S.'s back, the rug burn on his back, and his healing black
eye. (N.T. 6/ 19/ 19 at 479-482). B. Pauline testified that T.S. told her that his
eye was injured because Appellant punched him. (N.T. 6/ 19/ 19 at 504).
Appellant's mother, August Pauline ("A. Pauline) corroborated Holly and
B. Pauline's testimony and testified that during the summer of 2017 she also
observed the injuries on T.S.'s back and eye. (N .T. 6/ 19 / 19 at 449-453). A.
Pauline also testified that during that time T.S. complained that his side was
hurting. (N .T. 6 /19/ 19 at 449-450).
Anthony Cross ("Cross") is T.S.'s paternal grandfather, and he saw T.S.
every few weeks at his home in Philadelphia when T.S. would stay overnight
there for two to three days at a time. (N .T. 6 / 19 / 19 at 514-515, 517-518).
Cross testified that beginning around July 2017, when T.S. would come to stay
4
with him, he complained of pain in his side around his rib area. (N.T. 6/ 19/ 19
at 515-517). On September 19, 2017, B. Pauline brought T.S. to Cross's
house and showed Cross injuries on T.S.'s back. (N.T. 6/19/19 at 520-521).
Cross described the injuries as, "carpet marks on his back, burn marks on his
back." (N.T. 6/19/ 19 at 520). Cross also observed that T.S. had a black eye
and he took a photograph of his black eye. (N.T. 6/19/19 at 518-519, Exhibit
C-66). After observing the injuries, Cross reached out to Appellant via text
message and a phone call on September 19, 2017, telling her that he suspected
T.S. was being abused and he wanted T.S. to stay with him. (N.T. 6/19/19 at
519-524, Exhibits C-67 through C-72). Appellant went to Cross's house and
told him that T.S.'s black eye was the result of him falling" ... or something like
that." (N.T. 6/ 19 / 19 at 525-526). Appellant told Cross that she dragged T.S.
across the rug and when he asked her why, she told him, "there is something
wrong with me. I need help ... " (N.T. 6/ 19/19 at 526-527).
As a result of observing these injuries in September 2017, family
members and caregivers decided that T.S. should no longer stay with Appellant
and King. (N.T. 6/ 19 / 19 at 318-321, 335, 483-486, 504-505, 526-530).
Appellant and T.S. stayed with Cross for approximately three days. After three
days, Appellant went back to King's house, but T.S. stayed with Cross for an
additional few days. (N.T. 6/19 / 19 at 529-532). After that, T.S. went to stay
with Appellant's sister/his aunt, B. Pauline. T.S. stayed with B. Pauline from
September 2017 until approximately December 25, 2017. (N.T. 6/ 19/ 19 at
318-321, 335, 483-486, 505, 530-531).
5
The events of the day leading up to T.S.'s murder on January 22, 2018
began at approximately 9:30 AM when T.S. spilled his cereal. (N .T. 6/ 19 /19 at
416). Appellant and T.S. were at King's house in Willow Grove. When
Appellant confronted T.S. about the spill, he wet his pants and started
stuttering. (N.T. 6/ 19 / 19 at 416-417). As a result, T.S. was punished.
Appellant and King forced him to stay in "the position" which was a plank
position, or a push-up position, but not actually doing the push-up. (N.T.
6/18/19 at 217-218; N.T. 6/19/19 at417). He was left in "the position" for
spans of time throughout that day. Appellant yelled at him and reprimanded
him when he was unable to hold the plank position. (6/ 19 / 19 at 419-420).
T.S. started stuttering again. (N.T. 6/ 19 /19 at 418). Appellant explained that
T.S. stutters when he is scared. (N.T. 6/ 19 / 19 at 418). When T.S. was
"cheating" in "the position" by propping his legs up on the bed, King moved him
with his leg so that T.S. was unable to use the bed for support. (N.T. 6/ 18/ 19
at 232). When T.S. told Appellant he was tired and wanted to get out of "the
position," Appellant put him in a "new position" where he was forced to remain
in a push up position, but this time with his feet propped up on a kitchen
chair. (N.T. 6/ 19/ 19 at 419).
After being forced to remain in "the position" and being reprimanded for
"cheating" in "the position," Appellant and King continued to physically abuse
T.S. throughout the day by hitting him on his buttocks repeatedly with a flip
flop. Appellant hit T.S. with the flip flop six or seven times. (N.T. 6/ 19/ 19 at
419-420). King hit T.S. on his buttocks with his bare hand two or three
6
times, and with the flip flop three or four times, admitting to spanking T.S. and
giving him a "butt whooping." (N.T. 6/ 18/ 19 at 217-219, 221, 225, 231-233).
Appellant stated that T.S. never made a sound during the beating. (N.T.
6/19 / 19 at 420). King stated that T.S. removed his pants in preparation for
these beatings "because he knew it was butt whopping time." (N.T. 6/ 18/ 19 at
220). King also admitted that on January 22, 2018 he slapped T.S. in the
head. (N.T. 6/ 18/ 19 at 232). King stated that he was the disciplinarian in the
house and he would hit the children with his hand and strike them with a belt.
(N.T. 6/18/ 19 at 235). He stated that he used a flip flop to hit T.S. because he
would "no longer respond to being hit with a hand." (N.T. 6/18/ 19 at 235).
During the beating, T.S. urinated on himself, so King turned on the
water for T.S. to take a shower. (N.T. 6/ 19 /19 at 420; N.T. 6/18/19 at 233).
T.S. yelled that it was too hot. (N.T. 6/ 18/19 at 220, 233-234). King turned
the water on so hot that T.S. sustained burns. Appellant went to check on T.S.
after he had been in the shower for approximately three (3) minutes. (N.T.
6/ 19 /19 at 421). T.S. had a hard time getting out of the tub. (N .T. 6/ 19 /19
at 421). He was unable to stand up. (N.T. 6/ 19/ 19 at 421-422). When
Appellant went to dress T.S. he was unable to lift up his foot to put his sock
on. (N.T. 6/ 19/ 19 at 421-422). Appellant stated that T.S. was lying on the
bathroom floor with a stuck face; he couldn't hold his head up straight. (N.T.
6/19/19 at 421).
Appellant then took T.S. into the living room and placed him on the sofa.
(N.T. 6/19/19 at 422). T.S. complained he was sleepy. (N.T. 6/ 19/19 at 422).
7
King also observed T.S. on the sofa ".. .laying there like he was going to sleep."
(N .T. 6/ 18/ 19 at 222). King believed that he was just being "dramatic, and
went in his bedroom watching television and having something to eat. (N.T.
6/18/19 at 222). Appellant was also in the bedroom. (N.T. 6/19/19 at 422).
After approximately five minutes, Appellant went to check on T.S., and she
observed that he had fallen off the sofa onto the floor. (N.T. 6/19/19 at 422).
T.S. was unable to pick himself up to get back on the sofa. (N.T. 6/19 /19 at
422). King also observed T.S.... laying on the floor on his back. ... he was
looking like he was going to pass out. He was like closing his eyes." (N.T.
6/18/ 19 at 222-223). Appellant stated, "his lips were moving weird. I could
see that [T.S.] was going out. His eyes weren't looking at me. I waited to see if
he would do it again. [T.S.'s] mouth began to move weird again .... [T.S.'s] eyes
began to roll back into his head, and his mouth was open." (N .T. 6/19/19 at
422-423). Appellant stated that she knew something was wrong when he was
on the floor moving his lips weird. (N.T. 6/19/19 at 428).
Neither Appellant nor King called an ambulance for immediate
assistance. Instead, King called his Aunt Cheryl to see if she could come, but
she was 20 minutes away. King stated that he did not want an ambulance
coming to the house because "the last time I had to call an ambulance ... they
tried to ... make it out like I was a criminal. I didn't want them to come to the
house." (N.T. 6/18/19 at 223-224). Appellant called Holly asking her for an
Uber or a Lyft ride. Holly replied that she did not have one, and asked what
was wrong, to which Appellant did not reply and hung up. (N.T. 6/ 19/ 19 at
8
324). Still declining to call 9-1-1, nearly ten to fifteen minutes after observing
T.S. "on the ground moving his lips", Appellant and King put a coat on T.S.,
and Appellant left the house holding T.S. and began to walk. (N.T. 6/19/19 at
428). Appellant finally called 9-1-1 from the corner of Coolidge and Columbia
in Willow Grove. (N.T. 6/ 19/ 19 at 423, 425, 428; Exhibit C-20).
Paramedic Lars Holm responded to the call via ambulance. When he
arrived at the intersection of Coolidge Avenue and Columbia Avenue in Willow
Grove, he saw Appellant holding a limp child. Holm approached her, and she
quickly handed T.S. to him and said, "just take him," and walked away. (N.T.
6/18/19 at 156) Lars Holm knew immediately when he took T.S. that he was
dead. (N.T. 6/ 18/ 19 at 157, 159). Appellant never asked paramedics how her
son was doing and she never got in the ambulance with him. (N.T. 6/ 18/ 19 at
170, N.T. 6/ 19 / 19 at 381). T.S. was transported to Abington Memorial
Hospital.
Detectives and Officers from the Abington Township Police Department
responded to the scene at Coolidge and Columbia Avenues. Officer Alex Levy,
and Officer Dustin Wittmer, both of the Abington Township Police Department,
arrived on the scene and spoke with Appellant. (N.T. 6/ 19 / 19 at 380, 392).
Appellant told the Officers that she took the bus from Philadelphia to the
Willow Grove Mall Park bus stop, and she was walked with T.S. through a
parking lot and an opening in the fence to arrive at the location from where she
called 9-1-1. (N.T. 6/ 19/ 19 at 380, 394-397). She went on to say that T.S.
started having difficulty breathing, and his legs got wobbly, so she picked him
9
up to carry him. (N.T. 6/19/19 at 394). She attributed these issues to his
asthma. (N.T. 6/ 19/19 at 394). She stated that since she was six months
pregnant at the time, she couldn't carry T.S. anymore, so she called 9-1-1 from
the location where the officers responded. (N .T. 6/ 19 / 19 at 394). When
Officer Wittmer asked Appellant what brought her to this area, she stated that
she was there to see someone, but she could not provide a name or phone
number. (N.T. 3/19/ 19 at 381-382). When Officer Wittmer asked her for
T.S.'s father's name, she said she did not know it and that she did not have his
phone number. (N.T. 3/19/19 at 382). When Officer Levy asked Appellant
what brought her to this area, she stated she was going to visit her boyfriend,
Mark Johnson, but could not give the officer an address or a phone number to
where she was headed. (N.T. 6/19/19 at 394). When Officer Levy asked her
about Mark Johnson again a few minutes later, Appellant told him that he was
not her boyfriend, but was T.S.'s father and the father of the child she was
carrying. (N.T. 6/19 /19 at 397). Officer Levy then learned that T.S. was
deceased. (N.T. 6/ 19/ 19 at 397). He detained Appellant and transported her
to the Abington Police Station. (N .T. 6/ 19 / 19 at 397-398).
At the Police Station on January 22, 2018, Detective Donald
Lindenmuth, of the Abington Township Police Department, interviewed
Appellant. Initially, Appellant provided an oral statement to the police, but
that statement was ultimately suppressed as a violation of Miranda.6 Following
her oral statement, Detective provided Appellant with her Miranda rights, and
A discussion of the Suppression ruling is discussed in detail later in this Opinion.
10
she gave a voluntary written statement to the Detective. Appellant signed her
constitutional rights form, and gave a statement to Detective Lindenmuth.
(N.T. 6/19/19 at 404-407). She told the Detective in a narrative form about
the abuse she inflicted on T.S. throughout that day that ultimately led to his
death. (N.T. 6 / 19 / 19 at 416-430).
Detective Sergeant Richard Kondan, of the Abington Township Police
Department, responded to King's home and spoke with him there. (N.T.
6/18/19 at 174-175}. King first told Detective Kondan that Appellant and T.S.
were not at his house on January 22, 2018. (N.T. 6/ 18/ 19 at 176). Detective
Kondan told King that T.S. had passed away. He asked King if he would come
to the police station to talk about the incident, and King readily agreed. (N .T.
6 / 18 / 19 at 1 77). King was transported to the Abington Police Station and he
spoke with Detective Kondan and Detective Wilsbach. (N.T. 6/18/ 19 atl 78).
At approximately 8:25 PM, Detectives took King into custody. (N.T. 6/ 18/ 19 at
186). On January 23, 2018, at approximately 9:49 AM, King was given his
Miranda rights, he signed his constitutional rights form, and gave a statement
to Detective Todd Richard, of the Montgomery County Detective Bureau. (N.T.
6/18/19 at 208-211). He told Detective Richard about the abuse he inflicted
upon T.S. in the past, specifically that he had struck T.S. in the back with a
belt about five (5) months prior to his death. (N.T. 6/18/ 19 at 224). He
admitted to the abuse he inflicted upon T.S. throughout the day on January
22, 2018, which ultimately led to his death.
11
Dr. Ian Hood performed an autopsy on T.S. on January 23, 2018. Dr.
Hood is the medical examiner of Burlington County, New Jersey, and he
performs autopsies in Bucks and Montgomery Counties in Pennsylvania. (N.T.
6/ 18/19 at 73-74). The autopsy of T.S. showed repeated, intentional acts of
abuse. T.S.'s external injuries included profuse swelling and bruising on the
back of the buttocks with a distinct pattern that matched the sole of the flip
that that was used to beat him. (N.T. 6/18/19 at 82, 91-93, Exhibit C-12,
Exhibit C-15). The beating of his buttocks was so severe that it caused the
tissue underneath to pulpify. (N.T. 6/18/ 19 at 93-95, 96, Exhibit C-16). T.S.
was beaten so hard that he suffered from "crush syndrome," which is the type
of injury sustained as a result of building collapse. (N.T. 6/ 18/ 19 at 96-97).
The toxic component of cells were released into his bloodstream and eventually
caused shock, organ damage and death. (N.T. 6/ 18/ 19 at 96-97, 99-100).
In addition to the injuries on his buttocks, T.S. had redness, swelling,
blistering, and skin slippage across his upper back, which was the result of a
mixture of fresh first, second, and third degree burns. (N.T. 6/ 18/19 at 84).
T.S. also had bruising around both of his ears. (N.T. 6/18/19 at 88, 93-94,
103, Exhibits C-18 and C-19)). The autopsy revealed significant head injury.
Specifically, T.S. sustained bruises on the back of each side of his brain,
evidencing that both ears had been hit with force and that his head was
rocking backwards and forwards. (N.T. 6/ 18/ 19 at 107-108).
The autopsy also revealed that T.S. had two large and irregular old scars
on his central upper back, one of which was a solid shape consistent with
12
being hit with an object such as an adult belt buckle. (N.T. 6/18/19 at 83-84).
The scars were the result of injuries that had been caused at least a few
months before the date of the autopsy. (N.T. 6/ 18/ 19 at 84). The autopsy also
revealed eleven old rib fractures. Two of the rib fractures were displaced,
which means the bone was actually separated and adhered to his lung at
autopsy. The rib injuries were caused over multiple incidents because there is
no way a child could absorb eleven rib fractures at once without being
hospitalized. (N.T. 6/ 18/ 19 at 103-105). These rib injuries were corroborated
by three witnesses: Zakiyyah Holly saw bruises in the back and rib area in the
summer of 2017; August Pauline said T.S. complained of pain in his side in the
summer of 2017; and Anthony Cross said T.S. complained of pain in his side
and rib area in summer of 2017.
Dr. Hood stated that in the last one to two hours of his life, T.S. would
have been drowsy, unarousable, unable to talk in complete sentences, and
harder to rouse as time passed. (N.T. 6/ 18/ 19 at 109) This is consistent with
what Appellant and King observed. T.S.'s cause of death was multiple blunt
and thermal injuries and shock, which was the culmination of a day of
progressive punishments, beatings, and abuse. (N.T. 6/ 18/ 19 at 110). The
manner of death was homicide. (N.T. 6/ 18/ 19 at 110).
Issues
Appellant raises the following issues in her Concise Statement of Matters
Complained of on Appeal:
13
1. THE TRIAL COURT ERRED IN NOT SUPPRESSING MS. SMITH'S
WRITTEN STATEMENT. SEE ORDER FILED OF RECORD
08/10/2018. SPECIFICALLY, MS. SMITH'S STATEMENT TO THE
POLICE WAS IN VIOLATION OF MIRANDA AND IT WAS
INVOLUNTARY. SEE OMNIBUS PRE-TRIAL MOTION FILED
06/28/18, PP. 6-10.
2. THE TRIAL COURT ERRED IN ADMITTING MR. KING'S
STATEMENT IN VIOLATION OF BRUTON V. U.S. 391 U.S. 123(1968). MR. KING'S REDACTED STATEMENT MADE NUMEROUS
REFERENCES TO MS. SMITH THAT WERE PREJUDICIAL TO MS.
SMITH AND VIOLATED MS. SMITH'S SIXTH AMENDMENT RIGHT
TO CONFRONT HER ACCUSERS. SEE N.T. 06/ 18/ 19 "JURY
TRIAL-VOL. I," PP. 213-227.
3. THERE WAS INSUFFICIENT EVIDENCE TO CONVICT MS. SMITH
OF EITHER 18 PA.C.S. § 2502(a) MURDER OF THE FIRST
DEGREE OR 18 PA.C.S. 903(a)(l) CRIMINAL CONSPIRACY TO
COMMIT MURDER OF THE FIRST DEGREE. MURDER OF THE
FIRST DEGREE IS DEFINED AS AN "INTENTIONAL KILLING."
SIMILARLY, CRIMINAL CONSPIRACY REQUIRES THE "INTENT OF
PROMOTING OR FACILITATING" THE COMMISSION OF THE
UNDERLYING CRIME. THUS, BOTH CRIMES REQUIRE SUFFICIENT
PROOF THAT MS. SMITH HAD THE SPECIFIC INTENT TO KILL
[T.S.]. THERE WAS INSUFFICIENT EVIDENCE THAT MS. SMITH
HAD THE SPECIFIC INTENT TO KILL.
Discussion
The first issue Appellant raises on appeal is related to this court's
suppression ruling on August 10, 2018. Defendant filed a Motion to Suppress
Statements on June 28, 2018. The Commonwealth filed an Answer and
Response on August 1, 2018. Following testimony and argument on August 2,
2018, this court issued written findings on August 10, 2018 granting in part
and denying in part Appellant's Motion to Suppress Statements. Appellant
14
claims in this appeal that her written statement to police was involuntary and
in violation of Miranda and therefore should have been suppressed.
The factual basis for suppression is as follows. Appellant first
encountered police officers from Abington Township at approximately 6:17 p.m.
at the corner Coolidge and Columbia Avenues, the location from where she
called 9-1-1. At the scene, Officers Wittmer and Levy spoke with Appellant.
Appellant was not in custody when she initially spoke with Officer Wittmer and
Officer Levy at the scene.
Once Officer Levy learned that T.S. was deceased, he detained Appellant
at the scene and transported her to the Abington Police Station in his patrol
car. They arrived at the police station at approximately 6:53 p.m. When they
arrived there, Appellant was taken to an interview room where she encountered
Detectives Donald Lindenmuth and Richard Beaghley of the Abington Police
Department. The interview room was approximately 10x10 feet and included a
table, several chairs, a window, and a desk with a computer. The Detectives
were dressed in plain clothes. The Detectives asked Appellant if she was
willing to make a statement. She said yes. Appellant was not given Miranda
warnings at this time. Appellant provided a voluntary, oral statement to
Detectives, stating that she picked up T.S. in Philadelphia from Mark Johnson
and noticed that T.S. was not acting right. She further stated that they took
the bus to the Willow Grove Park Mall, but T.S. was having trouble walking.
She suspected he was having an asthma attack and called 9-1-1.
15
The failure to administer Miranda warnings at this time was based on the
Detectives' lack of awareness of the fact that Officer Levy placed Appellant into
custody at the scene. The Detectives did not deliberately avoid giving Miranda
warnings in order to manipulate the situation or induce Appellant into giving a
statement.
During the course of Appellant's oral statement, Detectives received
information related to the investigation of T.S.'s death. Specifically, at 7:50
p.m. Detectives learned from a witness that Appellant and T.S. were at 1843
Lukens Avenue all day on January 22, 2018. This information was contrary to
what Appellant had just told them. Upon learning this information, Detective
Lindenmuth advised Appellant that they knew she was not in Philadelphia that
day, upon which Appellant started crying, acknowledged that she was at 1843
Lukens Avenue, and made a general comment about T.S. being punished. At
this point, Detectives ceased all questioning of Appellant. After speaking with
other Detectives investigating the case, at approximately 8:57 p.m., Detectives
Lindenmuth and Beaghley informed Appellant of her Miranda rights before she
continued with her statement. Appellant acknowledged and voluntarily waived
her rights under Miranda and agreed to provide a written statement to
Detectives.
Before taking her written statement, Detective Lindenmuth read
Appellant her Miranda rights a second time, which was memorialized in writing
on the first page of her written statement. Appellant signed her name directly
under the enumerated rights and proceeded to give a voluntary written
16
statement to police. At approximately 9:00 p.m., prior to beginning the
statement, Appellant was offered food or drink, and was given what she
requested. The written statement was in the format of written questions and
answers; however, after being asked a few questions Appellant offered a
detailed narrative of the events of January 22, 2018. The Detectives typed her
narrative as she provided it, and Detectives did not interrupt her. Appellant
provided none of this detailed information in her pre-Miranda statement to
Detectives. Detectives completed their questioning at approximately 11:45
p.m. Appellant gave a ten (10) page statement. After the statement was
completed, Detective Lindenmuth printed a copy of the written statement and
gave it to Appellant to review. She made one correction to the statement,
adding a fact to one of her answers, and signed and dated each page.
Appellant's post-Miranda statement contradicted most of her pre-Miranda
statement. After giving her statement, one of the Detectives offered Appellant
the opportunity to adopt her statement on video. Appellant voluntarily declined
consent for a video recording of her statement. The police complied with her
decision not to allow a videotaped statement to be made.
Although Appellant's oral statements to the Detectives were made
voluntarily, she was in custody at the time and was not given Miranda
warnings. As a result, this court granted Appellant's Motion to Suppress
Statements with respect to her oral statement and suppressed all statements
made from the time she was first questioned by Detectives Lindenmuth and
Beaghley in the interview room at the Abington Police Station, up until the time
17
she was given her Miranda warnings. The court denied Appellants Motion to
Suppress Statements with respect to her written statement which was provided
voluntarily following Miranda warnings.
The procedural safeguards of Miranda are required only where a suspect
is both taken into custody and subjected to interrogation. A person is in
custody for Miranda purposes when she is physically denied her freedom of
action in any significant way or is placed in a situation in which she reasonably
believes that her freedom of action or movement is restricted by the
interrogation. Commonwealth v. Yandamri, 639 Pa. 100, 127-28 (2017).
The test for custodial interrogation does not depend upon the subjective intent
of the law enforcement officer interrogator. Interest of N.M., 2019 Pa. Super.
330, --A.3d(2019). Rather, the test focuses on whether the individual being
interrogated reasonably believes her freedom of action is being restricted. Id.Whether an encounter is deemed custodial must be determined by examining
the totality of the circumstances. Yandamuri, 639 Pa. at 127-28 Statements
not made in response to custodial interrogation are classified as gratuitous and
not subject to suppression for lack of Miranda warnings. Id.It is an unwarranted extension of Miranda to hold that a simple failure to
administer the warnings, unaccompanied by any actual coercion or other
circumstances calculated to undermine the suspect's ability to exercise her free
will, so taints the investigatory process that a subsequent voluntary and
informed waiver is ineffective for some indeterminate period. In Interest of
N.M., 2019 Pa. Super. at 8 (citing Oregon v. Elstad, 470 U.S. 298, 309
18
(1985)). Though Miranda requires that the unwarned admission must be
suppressed, the admissibility of any subsequent statement should turn in
these circumstances solely on whether it is knowingly and voluntarily made.
Oregon v. Elstad, 4 70 U.S. at 318. The relevant inquiry is whether, in fact,
the second statement was also voluntarily made. Id. As in any such inquiry,
the finder of fact must examine the surrounding circumstances and the entire
course of police conduct with respect to the suspect in evaluating the
voluntariness of her statements. Id. No further purpose is served by imputing
"taint" to subsequent statements obtained pursuant to a voluntary and
knowing waiver. Id. A suspect who has once responded to unwarned yet
uncoerced questioning is not disabled from waiving her rights and confessing
after she has been given the requisite Miranda warnings. Id.
When a defendant alleges that a confession was involuntary, the inquiry
becomes not whether the defendant would have confessed without
interrogation, but whether the interrogation was so manipulative or coercive
that it deprived the defendant of her ability to make a free and unconstrained
decision to confess. Yandamuri, 639 Pa. at 135-136. The voluntariness of a
confession is determined from a review of the totality of the circumstances
surrounding the confession.
In assessing voluntariness, a court should consider: the duration and
means of the interrogation; the defendant's physical and psychological state;
the conditions attendant to the detention; the attitude exhibited by the police
during the interrogation; and all other factors that could drain a person's
19
ability to resist suggestion and coercion. Id. (citing Commonwealth v. Perez,
577 Pa. 360, 845 A.2d 779, 787 (2004)). Additional relevant factors include: the
accused's age and level of education and experience; his extent of previous
experience with the police; whether the accused was advised of his
constitutional rights; whether he was injured, ill, drugged, or intoxicated when
he confessed; whether he was deprived of food, sleep or medical attention, and
whether he was abused or threatened with abuse. Id. at 136.
Detective Lindenmuth's initial failure to administer Miranda warnings to
Appellant prior to her oral statement was not intentionally done to avoid giving
Miranda warnings or to coerce or undermine Appellant's ability to exercise her
free will. Rather, it was based on a lack of awareness that Officer Levy placed
Appellant in custody. There was no evidence to suggest the Detective
Lindenmuth deliberately used coercive or improper tactics in obtaining
Appellant's pre-Miranda statement. By carefully and thoroughly administering
Miranda warnings prior to her written statement, Detective Lindenmuth cured
the condition that rendered the unwarned statement inadmissible. The
investigatory process did not taint Appellant's post-Miranda written statement.
At all times during the written statement, the Detectives spoke in
conversational tones and never raised their voice. The Detectives made no
threats or promises to Appellant. The Detectives never brandished their
firearms. Detectives permitted Appellant to move freely about the interview
room. At times Appellant asked to sit or lay on the floor for comfort. When she
was on the floor, the detective speaking to her got down on the floor as well.
20
When Appellant cried, they offered her tissues for comfort. She was provided
food and drink when she asked. When Appellant complained of pain or
discomfort, which occurred several times, the Detectives asked if she wanted
medical attention. Each time she responded that she did not.7 At no point was
she handcuffed or otherwise restrained within the interview room. Appellant
never asked to speak with an attorney and never exercised her right to remain
silent. A reasonable person would conclude that Appellant understood her
constitutional rights and that her decision to waive them was a deliberate
choice.
The totality of the circumstances show that Appellant knowingly,
intelligently and voluntarily waived her rights under Miranda and provided a
voluntary written statement to Detectives. Her statement to the Detectives
reveals an independent choice and the requisite level of comprehension to
support the conclusion that she knowingly waived her Miranda rights and
made a voluntary confession. There is no evidence that the interrogation was
manipulative or coercive or that it deprived Appellant of her ability to make a
free and unconstrained decision to confess. As a result, the trial court's
suppression rulings should be affirmed by the Superior Court.
Appellant's next claim of error on appeal is that the trial court erred in
admitting co-defendant King's statement to police as it was in violation of
7
Following the written statement and just before she was placed in a holding cell, Appellant complained of pain in
her abdomen. Police asked if she wanted medical attention, and this time she said she did. Appellant was
transported to Abington Hospital at approximately 12:46 a.m. She was evaluated at the Hospital. At approximately
3:04 a.m. she was medically cleared and returned to the police station.
21
Bruton v. U.S., 391 U.S. 123 (1968). Appellant claims that King's redacted
statement made numerous references to her that were prejudicial and violated
her sixth amendment right to confront her accusers.
King provided a written statement to Detective Todd Richard at the
Abington Police Department on January 23, 2018. Detective Richard testified
at trial and read a redacted version of King's statement. (N.T. 6/ 18/19 at 213,
Exhibit C-53). The statement was redacted so that any reference to Appellant
or any other person engaging in criminal conduct was removed. Defense
counsel objected to the admission of the redacted statement arguing that it was
in violation of Bruton. The court overruled the objection.
In Bruton v. United States8 the United States Supreme Court held that a
violation of the confrontation clause occurs when a non-testifying co•
defendant's admission inculpating the defendant is introduced at a joint trial.
However, if the statement is redacted to remove any specific references to the
defendant, and a proper limiting instruction is given to the jury, a violation
does not occur. See Richardson v. Marsh, 481 U.S. 200 (1987). If a
confession can be edited so that it retains its narrative integrity and yet does
not contain a hint of participation in the crime by the defendant, the use of it
does not violate the principles of Bruton, even though the confession serves to
implicate the defendant as a participant in the crime or crimes charged when
linked with other evidence presented at trial. Commonwealth v. Rainey, 593
Pa. 67,928 A.2d 215, 226-227 (2007); Commonwealth v. James, 66 A.3d 7718
391 U.S. 123 (1968).
22
(2013). Although prejudice may arise when a co-defendant's redacted
confession referring to the defendant by "contextual implication" is introduced
in a joint trial, this danger merely requires that the trial and reviewing courts
balance the potential prejudice to the defendant versus the probative value of
the evidence, the possibility of minimizing the prejudice, and the benefits to the
criminal justice system of conducting joint trials. Rainey, 928 A.2d at 227-
228.
The redacted statement in this case did not violate Bruton. Prior to
the admission of King's statement, the defense had an opportunity to review
the Commonwealth's proposed redactions, and the court made some additional
redactions to ensure that any reference that could implicate Appellant in the
alleged criminal conduct was removed. (N.T. 6/ 18/ 19 at 137-141). There was
no suggestion in the redacted statement of another person engaging in criminal
conduct. When Detective Richard testified, he read King's redacted statement
verbatim, and the statement was admitted into evidence. The redacted
statement only referenced criminal conduct related to King. The statement as
read gave no suggestion of another person engaging in criminal conduct. The
statement only referenced Appellant as being King's girlfriend and pregnant
with his child, and that she was at King's house on January 22, 2018 and she
fed the kids that morning. The information in the statement relating to the
abuse inflicted upon T.S., the burns inflicted on him in the shower, and T.S.'s
demeanor after the shower, was related to co-defendant King only. The
statement read clearly and smoothly, and it retained its narrative integrity
23
despite the redactions. There was no prejudice to the Appellant in admitting
King's statement as evidence against him.
In addition, the court provided a cautionary instruction to the jury prior
to the admission of the statement, and again during its closing charge. (N.T.
6/ 18/ 19 at 212-213). Before Detective Richard read the statement, the court
gave the following cautionary instruction to the jury:
"Ladies and gentlemen, you're about to hear a statement that was made
by Keiff King the defendant. There is a rule that restricts the use by you
of the evidence offered to show that the defendant Keiff King made a
statement concerning the crimes charged. A statement made before trial
may be considered as evidence only against the defendant who made that
statement. So you can consider the statement that you are about to hear
as evidence against Defendant Keiff King if you believe he made the
statement voluntarily. You may not and you must not consider the
statement as evidence against Defendant Lisa Smith. So I am telling you
as a matter of law, you must not use the statement in any way against
Lisa Smith." (N.T. 6/18/19 at 212-213).
The court's also gave a cautionary instruction to the jury in its closing charge
reiterating this information. (N.T. 6/20 / 19 at 765-771). The court did not err
in admitting King's redacted statement at trial.
Appellant's third claim of error is related to the sufficiency of the
evidence for the crimes of First Degree Murder and Conspiracy to Commit
First Degree Murder.10 Appellant claims that there was insufficient evidence at
trial to prove that she possessed specific intent to kill T.S., which is a required
element of each crime.
9
I 8 Pa.C.S.$ 2502(a).
""18Pa.C.S.$ 903(a)(1).
24
In reviewing the sufficiency of the evidence, the Superior Court must
determine whether the evidence admitted at trial, and all the reasonable
inferences derived therefrom, viewed in favor of the Commonwealth as verdict
winner, supports the jury's finding of all of the elements of the offense beyond a
reasonable doubt. Commonwealth v. Le, 208 A.3d 960, 969 (Pa. 2019) (citing
Commonwealth v. Smith, 604 Pa. 126, 985 A.2d 886, 894-95 (2009)). First•
degree murder is an intentional killing, i.e., a "willful, deliberate and
premeditated killing." 18 Pa.C.S. § 2502(a), (d).
It is well-established that the Commonwealth may sustain its burden of
proof by means of wholly circumstantial evidence and the jury, while passing
upon the credibility of witnesses and the weight of the evidence, is free to
believe all, part, or none of the evidence. Commonwealth v. Yandamuri, 639
Pa. 100, 118-19, 159 A.3d 503,514 (2017) (citing Commonwealth v.
Poplawski, 130 A.3d 697, 709 (Pa. 2015)).
In order to prove first-degree murder, the Commonwealth must establish
that: (1) a human being was killed; (2) the accused caused the death; and (3)
the accused acted with malice and the specific intent to kill. Le, 208 A.3d at
969 (citing Smith, 985 A.2d at 895). In order to prove Conspiracy to commit
first degree murder, the Commonwealth must establish that: (1) the defendant
intended to commit or aid in the commission of the criminal act; (2) that the
defendant entered into an agreement with another to engage in the crime; and
(3) the defendant or one or more of the other co-conspirators committed an
overt act in furtherance of the agreed upon crime. Id. As it is often difficult to
25
prove an explicit or formal agreement, the agreement generally is established
via circumstantial evidence, such as by the relations, conduct, or
circumstances of the parties, or the overt acts on the part of co-conspirators.
Id. (citing Commonwealth v. Johnson, 604 Pa. 176, 985 A.2d 915, 920
(2009)). In the case of a conspiracy to commit homicide, each member of the
conspiracy may be convicted of first-degree murder, regardless of who inflicted
the fatal wound. Id.A specific intent to kill may be proven by circumstantial evidence and
can be inferred from the defendant's use of deadly force upon a vital part of the
victim's body. Id. Where a defendant knowingly applies deadly force to the
victim, his specific intent to kill is as evident as if he expressed the intent to kill
at the time the force was applied. Commonwealth v. Shank, 883 A.2d 658,
664-65 (Pa. Super. 2005). In this context, the extent to which force may be
deemed "deadly" is not merely a function of whether the defendant used a
weapon, but rather, may be gauged by other factors including the seriousness
and type of injury inflicted. Id. With respect to child abuse cases, the
Pennsylvania Supreme Court has specifically held that evidence is sufficient to
sustain conviction for first degree murder even where the medical evidence
does not point to a "final incident" or "final blow" which was the definitive
cause of death. Commonwealth v. Powell, 956 A.2d 406, 415 (Pa. 2008).
An individual can be held criminally liable for the acts of another,
including first-degree murder, as an accomplice. In order to sustain a
conviction based on accomplice liability, the Commonwealth must demonstrate
26
that an individual acted with the intent of promoting or facilitating the
commission of an offense and agrees, aids, or attempts to aid such other
person in either planning or committing that offense. Le, 208 A.3d at 969
(citing Commonwealth v. Spotz, 552 Pa. 499, 716 A.2d 580, 585-86 (1998)).
As with conspiracy, a shared criminal intent between the principal and his
accomplice may be inferred from a defendant's words or conduct or from the
attendant circumstances. Id.The Commonwealth presented sufficient evidence at trial to support
Appellant's conviction for first degree murder of T.S. and conspiracy to commit
first degree murder. When viewed in the light most favorable to the
Commonwealth as verdict winner, the evidence established that Appellant
engaged in consistent and repeated physical abuse of T.S., which resulted in
his death, and she failed to call for help when T.S. exhibited signs of distress
on January 22, 2018.
The evidence presented established that Appellant engaged in a pattern
of abuse over a number of months prior to T.S.'s death. At the time of his
death, the autopsy revealed that T.S. had multiple scars on his back consistent
with full thickness skin loss and consistent with being hit with a belt prior to
the events inflicted on the day of his death. In addition, he had ten old rib
fractures. Four witnesses, Holly, B. Pauline, A. Pauline, and Cross,
corroborated these injuries. The consistent abuse ultimately culminated in
T.S.'s death on January 22, 2018 after a day of repeated beatings and abuse.
This repeated abuse showed hardness of heart and malice.
27
The evidence showed that the beatings and abuse Appellant and her co•
defendant inflicted on T.S. on January 22, 2018 included burns to T.S.'s
shoulder, where his skin was blistered and raw, and extensive bruising on his
buttocks. T.S. did not just endure surface bruising on his buttocks. He
suffered extensive internal injuries associated with the bruising on his
buttocks. As Dr. Hood testified, the hemorrhage went from the surface of the
skin all the way to the muscle underneath. The fat tissue underneath his
buttocks was partially pulpified. This type of injury is consistent with being
crushed as a result of a building collapse. The amount of force Appellant and
her co-defendant used when beating T.S. was enough to crush his insides. As
evidenced by the photographs, the sole of the flip flop they used to beat him
was imprinted on his buttocks. They violently and viciously struck this
innocent four year old as hard as they could, over and over again. T.S. was
merely four (4) years old and forty-two (42) pounds. Appellant and King
subjected him to prolonged malicious torture and ultimately killed him in an
attack of such ferocity that Dr. Hood likened his injuries and impact upon his
body to having been crushed as if from a building collapse. From those facts,
intent to kill can be inferred.
Intent becomes more clear when T.S. began to decline and show distress.
After the shower T.S. was unable to get out of the tub. He could not get
dressed. Appellant described him as laying on the bathroom floor with a stuck
face. He could not hold his head up straight. As T.S. was laying on the couch
like he was going to sleep, King believed that he was just being "dramatic."
28
When Appellant returned to the living room approximately five (5) minutes later
to check on T.S., she found him on the floor next to the sofa. T.S. could not
move back onto the couch. Appellant observed that T.S.'s lips were moving
weird, and she could see in his eyes that he was going out. King observed this
as well. At this point, Appellant and King both knew that T.S. was in distress
and that something was wrong. As T.S. was clearly exhibiting signs of distress,
neither Appellant nor King called 9-1-1 for immediate help.
Instead, Appellant called Holly asking her for an Uber or a Lyft ride.
Holly replied that she did not have one. King called his Aunt Cheryl to see if
she could come to the house, but she was twenty (20) minutes away. Still
declining to call 9-1-1, Appellant and King put a coat on T.S., and Appellant
left the house holding T.S. She began to walk to remove herself and the child
from Appellant's house where the crime occurred. Appellant stated that ten
(10) to fifteen (15) minutes had passed from the time she knew T.S. was in
distress by the way his lips were moving until she left the house. Appellant did
not call 9-1-1 until she reached the corner of Coolidge and Columbia in Willow
Grove. At this point, T.S. was already deceased.
Appellant and her co-defendant clothed an unconscious or deceased
body and then they planned and executed a cover-up story. They put a coat on
T.S. to corroborate their story that Appellant was coming from Philadelphia.
Appellant walked to an intersection to call 9-1-1, to make it look as if she had
taken a bus to Willow Grove from Philadelphia, gotten off at the mall, and
walked across the parking lot through an opening in the fence. Both she and
29
King knew this route because this is how she would get to his house when she
stayed with him. Appellant handed the paramedics a dead child, and never
asked any police officer or medical personnel about T.S.'s condition. She knew
he was dead.
King corroborates Appellant's lie when he told Detective Kondan that
neither Appellant nor T.S. were not at his house that day. King told Detective
Kondan that when Appellant and T.S. would come to his house on Lukens
Avenue, Appellant used public transportation to get to Willow Grove and then
cut through the parking lot and the opening in the fence to get to Lukens
Avenue. King repeatedly stated that the only adults in the house on January
22, 2018 were his cousin and his grandmother. That was a lie. Appellant and
King were there all day.
Appellant's consciousness of guilt also supports the evidence of specific
intent in this case. Appellant removed T.S. from the home, the scene of his
death, before she or her co-defendant called for emergency help. This evidence
of concealment demonstrates consciousness of guilt. In addition, Appellant
and her co-defendant each made false statements to the police when
questioned. Their statements were consistent; their cover up was planned.
This is also evidence of Appellant's consciousness of guilt.
The evidence shows that Appellant repeatedly chose King over T.S. in the
months leading up to T.S.'s murder. Friends and family approached Appellant
regarding the suspected abuse inflicted upon T.S. They offered to help and care
N.T. 6/18/19 at 181-182.
30
for her and T.S., she continued to choose King. The evidence demonstrates
that Appellant and King acted together throughout the day on January 22,
2018 to punish and abuse T.S. Their joint actions and omissions facilitated
and caused T.S.'s death. The evidence presented in this case shows that
Appellant and King acted in concert every step of the way.
Based on the totality of these facts, including the severity of the injuries,
the repeated and consistent beatings and abuse prior to the day of the murder
and throughout the entire day on January 22, 2018, the failure to call for help
when T.S. was in distress, and the concoction of their cover-up story, the
evidence shows that Appellant was responsible for T.S.'s killing, that she
conspired with King to effectuate the killing, and that she acted with malice
and the specific intent to kill T.S.
CONCLUSION
Based on the foregoing, Appellant's judgment of sentence, imposed on
July 31, 2019, should be affirmed by the Superior Court.
Copies of Opinion sent on 2/yo]too to:
Robert M. Falin, Chief, Appeals Division, District Attorney's Office
Victoria Kessler, District Attorney's Office
Kayla Witherite, District Attorney's Office
Lee Awbrey, Esquire - Defense Attorney
Court Administration - Criminal Division
31