J-S01040-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,

 Appellee

 v.

BRIAN ARMSTRONG,

 Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

 No. 235 EDA 2019

Appeal from the Judgment of Sentence Entered September 23, 2016

in the Court of Common Pleas of Philadelphia County 

Criminal Division at No(s): CP-51-CR-0011105-2014

BEFORE: BOWES, J., KUNSELMAN, J. and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.: FILED APRIL 03, 2020

Brian Armstrong (Appellant) appeals nunc pro tunc from the judgment 

of sentence imposed following his convictions for third-degree murder and 

endangering the welfare of a child (EWOC). Upon review, we affirm.

We provide the following background. Appellant resided at his 

parents’ home with his wife, sister, cousin, his one-year-old baby, K.A., and 

his two-month-old infant, H.A. N.T., 6/20/2016, at 123, 125. On August 1, 

2014, at approximately 12:00 p.m., Appellant’s wife departed the residence 

for work, leaving K.A. and H.A. in Appellant’s exclusive custody and care. 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
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N.T., 6/17/2016, at 137. It was Appellant’s “first time actually being alone 

with [his] children” as the sole caretaker.1 N.T., 6/20/2016, at 129.

When Appellant’s wife departed, H.A. appeared to be unharmed. N.T., 

6/17/2020, at 138. A few hours later, Appellant presented H.A. at Einstein 

Emergency Department in Philadelphia County. N.T., 6/20/2016, at 156. 

Upon arrival, H.A. was noted to be limp, had poor respiratory effort, and was 

completely unresponsive with fixed and dilated pupils, which indicated that 

he had significant brain injury. N.T., 6/17/2016, at 42. H.A. was without a 

heart rate and required “resuscitation, including intubation, CPR, [and] 

eventual placement of a chest tube.” Id. In desperate need of more care, 

H.A. was transferred to Saint Christopher’s Hospital for Children (Saint 

Christopher’s) in Philadelphia. Id. at 43. Within a short period of his arrival, 

H.A. was declared brain-dead and placed on life support. Id. at 42-43. H.A. 

was diagnosed with a multitude of injuries: a severe, complex skull fracture 

on both sides of his skull; bleeding under the skull and outside of the brain; 

severe swelling of his brain; hemorrhages to the retina of his eyes; healing 

and new rib fractures, with bleeding surrounding both; a pulmonary 

hemorrhage; and injury to his liver. Id. at 44-46. Two days after his arrival 

at Saint Christopher’s, H.A. was pronounced dead.

____________________________________________

1 Although Appellant’s sister was at the home, she was sleeping, and 

therefore, was not providing any care.
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The nature of H.A.’s injuries triggered police involvement. While at 

Einstein Emergency Department on the day of the incident, Appellant 

provided Officer Roscoe Jones with his account of the events that led to 

H.A.’s injuries. N.T., 6/16/2016, at 59. In the meantime, Officer Alfonso 

Powers secured Appellant’s home. Id. at 112. Rather than go with H.A.

when he was transferred to Saint Christopher’s, Appellant went home. N.T., 

6/20/2016, at 161. When Appellant arrived home, Officer Powers 

transported Appellant and his sister to the Philadelphia Police Department 

homicide unit, and arrived at approximately 7:05 p.m. on August 1, 2014. 

N.T., 6/14/2016, at 56. 

At the homicide unit, detectives conducted a series of interviews with 

Appellant regarding the events that led to H.A.’s injuries. Of particular 

interest to this appeal was a statement (video statement) taken on August 

2, 2014, between 3:03 p.m. and 3:26 p.m. In that interview, Appellant 

explained the manner in which he played with his children and his account of 

the events that took place on August 1, 2014. Specifically, Appellant told 

detectives that he placed H.A. in the bassinet upstairs, went downstairs to 

get food, heard a noise upstairs, and ran back to the bedroom. Once there, 

Appellant observed H.A. unresponsive on the floor of the bedroom. 

Appellant asked his sister for help, and while she called 911, he attempted 

to perform CPR on H.A. Rather than wait for an ambulance, Appellant 
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picked up H.A., ran outside, and flagged down a motorist, who drove to and 

dropped them off at Einstein Emergency Department.

Detectives responded to this account by asking Appellant how he 

played with H.A. Appellant responded as follows.

Uh, sometimes I throw, I throw my son in the air ... But I still 

support his head ... Okay, and sometimes I hold him like real 

close to me and I spin him around real hard like. So he gets 

dizzy ... And then lay him on the bed, I just like seeing him dizzy 

like that ... Oh the pats on the back ... they’re pretty heavy[-

]handed. And I pat him on the back.

Commonwealth’s Trial Exhibit 48A, at 4. When asked how H.A. 

sustained bone fractures, Appellant said, “[s]ometimes we play too 

rough.” Id. When asked whether he played rough with H.A. prior to 

August 1, 2014, Appellant replied, “early last week, probably Monday, 

Tuesday, Wednesday” he held H.A. “real tight, lots of poppa bear 

hugs.” Id. at 5. Appellant acknowledged that the way he played with 

H.A. could have caused his injuries and that his wife, mother, and 

father confronted him about how he played with H.A. and stopped him 

when he played too rough. Finally, Appellant apologized for his 

behavior, which he claims was not intentional, but a mistake.

So, I apologize to my wife and to [H.A.], and to my family. It is 

my fault that [H.A.] is in critical condition for me handling him 

too rough, and he’s very fragile. I mistake him, sometimes, for 

being my 1[-]year[-]old, sometimes even when I change 

[H.A.’s] diaper, I change him a little rough.

Id. at 8. Based on the foregoing, Appellant was charged with third-degree

murder and EWOC.
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Prior to trial, Appellant filed a motion seeking to suppress the 

statements he made while in custody at the Philadelphia Police Department 

homicide unit, including the video statement. Appellant averred that his 

statements were rendered involuntary due to the duration of the 

interrogation, psychological coercion, and improper Miranda2 warnings he 

was given over the course of the interrogation. N.T., 6/15/2016, at 211-19. 

After a pre-trial hearing, the suppression court granted the motion in part 

and denied the motion in part.3

The case proceeded to a jury trial, where the aforementioned facts 

were developed and Appellant’s video statement was introduced. Appellant 

was convicted of the aforementioned crimes. On September 23, 2016,

Appellant was sentenced to a term of imprisonment of 15 to 30 years, 

followed by 7 years of probation. Appellant timely filed a post-sentence 

motion for a new trial, in which he challenged the denial of the motion to 

suppress his video statement and the weight of the evidence to sustain his 

____________________________________________

2 Miranda v. Arizona, 384 U.S. 436 (1966).

3 The suppression court suppressed Appellant’s statements made between 

August 1, 2014, at 11:58 p.m., and August 2, 2014, at 11:47 a.m., finding 

that Appellant was not properly given Miranda warnings. In contrast, the 

suppression court found Appellant’s video statement, which was made on 

August 2, 2014, between 3:03 and 3:26 p.m., followed proper Miranda

warnings, and was a knowing, intelligent, and voluntary statement. N.T., 

6/15/2016, at 242-44. On appeal, Appellant challenges the trial court’s 

order denying the motion to suppress the video statement. Appellant’s Brief 

at 8.
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convictions. On November 18, 2016, the trial court denied Appellant’s postsentence motion. Subsequently, Appellant’s counsel failed to file timely a 

notice of appeal to this Court.

Appellant filed a petition on January 26, 2018, pursuant to the Post

Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546, seeking the 

reinstatement of his right to file a direct appeal nunc pro tunc.

4

 The PCRA 

court ultimately granted Appellant’s petition, and this timely-filed appeal 

followed.5

On appeal, Appellant challenges the orders denying his suppression 

and weight of the evidence claims. Appellant’s Brief at 8.

We first address Appellant’s challenge to the order denying his motion 

to suppress. Appellant argues his statement was not voluntary, as it was 

the product of coercion. Id. at 32-33, 39, 48-50. Specifically, Appellant 

avers: 1) the duration of the interrogation was excessive; 2) his physical and 

psychological state were both poor because “he was given crackers and two 

____________________________________________

4 Appellant’s pro se PCRA petition was facially untimely. However, because 

Appellant pleaded and proved an exception to the PCRA’s time-bar, see

Amended PCRA Petition, 7/19/2018, at 14-17, the PCRA court had

jurisdiction to reinstate Appellant’s right to file a direct appeal. See 42 

Pa.C.S. § 9545(b)(1).

5 Both Appellant and the trial court complied with the mandates of Pa.R.A.P. 

1925.
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minutes to eat a sandwich over [a] 20 hour period,”

6 he was left in a room 

unsuitable for sleep, and his requests to speak to his wife and see H.A. were 

rejected; and 3) the detectives’ attitudes were “both manipulative and 

coercive” as they “attacked his masculinity” and told Appellant “his own 

parents did not believe” he was innocent. Id. at 49. Appellant contends

these circumstances should be considered mindful of Appellant’s absence of 

previous arrests, as well as the earlier improper Miranda warnings given by 

the detectives. Id. at 50.

We review this issue mindful of the following.

[O]ur standard of review in addressing a challenge to a trial 

court’s denial of a suppression motion is limited to determining 

whether the factual findings are supported by the record and 

whether the legal conclusions drawn from those facts are 

correct. We are bound by the suppression court’s factual 

findings so long as they are supported by the record; our 

standard of review on questions of law is de novo. Where, as 

here, the defendant is appealing the ruling of the suppression 

court, we may consider only the evidence of the Commonwealth 

and so much of the evidence for the defense as remains 

uncontradicted. Our scope of review of suppression rulings 

includes only the suppression hearing record and excludes 

evidence elicited at trial.

***

It is well-established that when a defendant alleges that 

his 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 

____________________________________________

6 Although Appellant was physically at the homicide unit for over 20 hours, 

he was in legal custody for approximately 16 hours. N.T., 6/15/2016, at 

237-42.
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deprived the defendant of his ability to make a free and 

unconstrained decision to confess. The voluntariness of a 

confession is determined from a review of the totality of the 

circumstances surrounding the confession. The Commonwealth 

has the burden of proving by a preponderance of the evidence 

that the defendant confessed voluntarily.

Commonwealth v. Yandamuri, 159 A.3d 503, 516-25 (Pa. 2017) (internal 

citations omitted).

Providing additional guidance, our Supreme Court has set forth the 

following principles to review challenges to the voluntariness of a confession.

The test for determining the voluntariness, and thus the 

admissibility, of an accused’s statement is the totality of the 

circumstances surrounding the statement. The mere fact that 

there is some passage of time between when an accused 

is arrested and when he or she gives an inculpatory 

statement does not constitute grounds for suppression of 

the statement. Numerous factors should be considered under 

a totality of the circumstances test to determine whether a 

statement was freely and voluntarily made: the means and 

duration of the interrogation, including whether questioning was 

repeated, prolonged, or accompanied by physical abuse or 

threats thereof; the length of the accused’s detention prior to 

the confession; whether the accused was advised of his or her 

constitutional rights; the attitude exhibited by the police during 

the interrogation; the accused’s physical and psychological state, 

including whether he or she was injured, ill, drugged, or 

intoxicated; the conditions attendant to the detention, including 

whether the accused was deprived of food, drink, sleep, or 

medical attention; the age, education, and intelligence of the 

accused; the experience of the accused with law enforcement 

and the criminal justice system; and any other factors which 

might serve to drain one’s powers of resistance to suggestion 

and coercion.

Commonwealth v. Martin, 101 A.3d 706, 724-25 (Pa. 2014) (internal 

citations omitted) (emphasis added).
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In its Pa.R.A.P. 1925(a) opinion, the trial court offered the following 

analysis in support of its order denying Appellant’s motion to suppress.

This [c]ourt observed the videotape of [Appellant] in the 

interview room and considered all the circumstances leading to 

the final statement. This [c]ourt does not find the length of time 

between the initial detention and the [video] statement unduly 

coercive. The detectives were actively investigating during that 

time frame. The length of time between [Appellant’s] arrest and 

confession does not render a confession involuntary absent 

evidence of an effort to coerce a confession or overcome 

[Appellant’s] will. See Commonwealth v. Sepulveda, 855 

A.2d 783, 793 (Pa. 2004).

Furthermore, this [c]ourt finds that the conditions in the 

interview room were not unduly coercive. [Appellant] had the 

opportunity to be left alone and slept during the overnight hours. 

He was fed and permitted to use the restroom. [Appellant] was 

not in emotional or physical distress and was eating, drinking 

coffee[,] and engaging in conversation with the detectives. He 

did not exhibit behavior indicative of mental illness. He was not 

intoxicated. [Appellant] was a high school graduate and was 

currently studying to receive his CDL. Although there were some 

coercive tactics[,] i.e.[,] Detective White telling [Appellant] to be 

a man and that his parents didn’t even believe him[], the court 

did not find that these tactics were so reprehensible to basic 

societal notions of fairness to vitiate the voluntariness of the 

statement. The Pennsylvania Supreme Court has found that the 

use of artifice or even intentional misrepresentations to obtain a 

confession is insufficient to make an otherwise voluntary 

confession inadmissible “where the deception does not produce 

an untrustworthy confession or offend basic notions of fairness.”

See Commonwealth v. Williams, 640 A.2d 1251, 1259 (Pa. 

1994) (claim that police falsely stated that they had located a 

gun sold by the defendant which was of the same caliber used in 

the crime, was not sufficient to render a confession involuntary 

absent other coercive circumstances); see also 

Commonwealth v. Jones, 322 A.2d 119 (Pa. 1974) (finding 

confession was voluntary even though, after the defendant gave 

an initial exculpatory statement, the detective falsely claimed 

that a co[-]conspirator had implicated him).
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This [c]ourt found that the [video] statement taken from 

3:03 p.m. until 3:26 p.m. on August 2, 2014, was knowing, 

intelligent and voluntary.

Trial Court Opinion, 4/1/2019, at 4-6 (citations omitted).

Our review of the record confirms the trial court’s cogent analysis and

we find it aligned with our well-settled case law. Although Appellant was 

previously given improper Miranda warnings, indeed, the police properly 

advised Appellant of his constitutional rights prior to obtaining the video

statement taken from 3:03 p.m. until 3:26 p.m. on August 2, 2014. A prior

Miranda violation does not preclude a suspect from waiving Miranda rights 

in the future, after receiving the requisite warnings. See Oregon v. Elstad, 

470 U.S. 298 (1985). Thus, we agree with the trial court that based upon 

the totality of the circumstances, Appellant’s video statement was given 

knowingly, intelligently, and voluntarily and therefore did not warrant 

suppression. See Commonwealth v. Harrell, 65 A.3d 420, 435 (Pa. 

Super. 2013) (holding the trial court did not err in denying a motion to 

suppress where “[t]he totality of the circumstances indicate[d] that [Harrell] 

knowingly and voluntarily chose to waive his Miranda rights and make a 

statement”).

In Appellant’s second issue raised on appeal, he claims the trial court 

abused its discretion by not granting him a new trial on the basis that the 

verdict as to both of his convictions was against the weight of the evidence. 

Appellant’s Brief at 33, 51-64. Specifically, to support his contention, 
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Appellant argues that “[n]o one witnessed the child’s fatal injuries,” asserts 

the child’s injuries were “accidental in nature,” and cites trial testimony that 

he is a peaceful and law-abiding citizen. Id. at 63. In addition, Appellant

claims that “[t]he jury placed greater weight upon the expert witness’s 

conclusion – based upon a preponderance of the evidence standard.” Id. at 

64.

We consider this claim mindful of the following.

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:

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. 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. 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. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (quoting 

Commonwealth v. Widmer, 744 A.2d 745, 753 (Pa. 2005) (internal 

citations omitted) (emphasis in original)).

After reviewing all of the evidence, “including evidence of the 

[Appellant’s] good character[,]” the trial court concluded the verdict was not 

against the weight of the evidence because the decedent endured injuries 
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indicative of a severe assault while under Appellant’s exclusive care. Trial 

Court Opinion, 4/1/2019, at 16. The trial court’s conclusion is supported by 

the record.

At trial, the Commonwealth presented the testimony of Dr. McColgan, 

medical director of the child protection program at Saint Christopher’s, as 

well as forensic pathologist Dr. Wainer, who had reviewed the autopsy report 

prepared by his colleagues. Dr. McColgan, facing a litany of hypotheticals, 

made clear that H.A.’s injuries were sustained due to a significant, severe 

impact and could neither have been sustained falling out of his bassinet nor 

inflicted by a one-year-old baby. N.T., 6/17/2016, at 80-81, 104-109. Dr. 

Wainer summarized the multitude of injuries that were documented over 

H.A.’s entire body. Dr. Wainer opined that the injuries were caused by 

multiple impacts and similarly ruled out the possibility that the injuries could 

have been caused by a fall or inflicted by a one-year-old baby. N.T., 

6/20/2016, at 28, 44-45, 64. Finally, Dr. McColgan and Dr. Wainer 

concluded in their diagnoses, respectively, that H.A.’s injuries were 

“inflicted” or the result of “physical abuse,” and the “cause of death in this 

case [was] blunt impact trauma to the head and the manner of death [was]

homicide.” N.T., 6/17/2016, at 65; N.T., 6/20/2016, at 18.

Regarding Appellant’s claim that the jury improperly weighed the 

expert witness’s conclusion using a preponderance of the evidence standard, 

the trial court aptly explained the error in this claim, as follows.
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[Appellant] claims that Dr. Wainer’s testimony, that the term, 

“reasonable degree of medical certainty”, means “more likely 

than not”, was not sufficient to establish the cause and manner 

of death beyond a reasonable doubt. [Appellant] is confusing a 

legal term of art: “reasonable degree of medical certainty[,]” 

which is used to describe an expert opinion as one that would be 

widely accepted in the medical community, with a legal 

standard, proof beyond a reasonable doubt.

Trial Court Opinion, 4/1/2019, at 14.

As to Appellant’s argument that his son’s injuries were accidental and 

testimony showed that he is peaceful, we note that it is within the province 

of the jury, sitting as fact-finder, to review the evidence and assess the 

credibility of the testifying witnesses. See Commonwealth v. Williams, 

854 A.2d 440, 445 (Pa. 2004). “[E]vidence at trial need not preclude every 

possibility of innocence, and the fact-finder is free to resolve any doubts 

regarding a defendant’s guilt 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.” Commonwealth v. Hughes, 908 A.2d 

924, 928 (Pa. Super. 2006). Issues of credibility are left to the jury; “the 

jury is free to accept all, part, or none of the witness testimony.” 

Commonwealth v. Russell, 665 A.2d 1239, 1246-47 (Pa. Super. 1995) 

(citations omitted). The jury was free to believe the testimony of Dr. 

McColgan and Dr. Wainer. Moreover, Appellant’s own recitation of the 

episode and the manner in which he played with H.A., in context, allow one 

to infer that the child’s fatality was caused by Appellant. N.T., 6/20/2016, at 

139-58, 165-71.
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Upon review, we discern no abuse of discretion in the trial court’s 

conclusion that the verdicts were not against the weight of the evidence. 

Thus, Appellant’s challenge to the weight of the evidence fails.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/3/20