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NON - PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA,

Appellee

v. BRIAN ARMSTRONG ,

Appellant : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 235 EDA 2019
Appeal from the Judgment of Sentence Ente red September 23, 2016

i n the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP

- 51

- CR

- 0011105

- 2014 BE FORE: BOWES, J., KUNSELMAN, J. and STRASSBURGER, J. * MEMORAND UM 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, w e affirm.
W e provide the follow ing background

. App ellant 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.J

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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 Appe l lant’s wife departed, H.A. appeared to be unharmed. N.T., 6/17/2020, at 138. A few hours later , Ap pellant 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 respi ratory 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 “resuscita tion, including intubation, CPR, [and]

eve ntu al placement of a chest tube.” Id. I n desperate need of more care,
H.A. was transferred to Saint Christopher’s Hospital for Children (Saint Christopher’s) in Philadelphia

. Id . at 43. Wi thin a short period of his arrival , H.A. was declared brain

- dead an d 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 reti na 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 Althou gh Appellant’s sister was at the home, she was sleeping, and therefore, was not providing any care.J

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The nature of H.A.’s injuries trigg ered 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, Offic er Alfonso
Powe rs 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 Phil adelphia Po lice 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 t ook 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 upstair s, and ran back to the bedroom. Once there, Appella nt observed H.A. unresponsive on the f loor of the bedroom

. Appellant asked his sister for help, and while she called 911, he at tempted to perform CPR on H.A. Rather than wait for an ambulance, AppellantJ

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picked up H.A., ran outside, and flagged down a motorist, who drove to a nd dropped them o ff 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 h old 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, probabl y Monday,
Tu esday, 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 cause d his injuries and that his wife, mother , and father confronted him ab out 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.J

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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 Miranda 2 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 motio n 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, Appel lant was sentenced t o 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 , 3 84 U.S. 436 (1966).

3 T he 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. I n 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.J

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convictions

. On November 18 , 2016, t he trial court denied Appellant’s post

sentence motion. Subsequently, Appellant’s counsel failed to file timely a notice of a ppeal to this Court. Appellant filed a petition on January 26 , 2018, pursuant t o 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 t his timely

- filed appeal followe d. 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 v oluntary, 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 w as 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.J

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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 an d see H.A. were rejected; and 3) the detectives’ attitudes were “both manipulative and coercive” as they “attacked his masculi nity” and told Appellant “his own parents did not believe” he was innocent. Id. at 49. Appellant contends the se 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 r ecord 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 d efendant 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 suppressio n 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 physical ly at the homicide unit for over 20 hours, he was in legal custody for approximately 16 hours. N.T., 6/15/2016, at 237

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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 surroun ding 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 guid ance , our Supreme Court has set forth the following principles to review challenges to the volu ntariness of a confession. The test for determining the voluntariness, and thus the admissibilit y, 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 co nsidered 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 th reats the reof; 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 resista nce to suggestion and coercion. Commonwealth v. Martin , 101 A.3d 706, 724

- 25 ( Pa. 2014) (internal citations omitted) (emphasis added).J

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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 a nd 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).
Furt hermore, 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 e motional 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 pa rents didn’ t even believe him [] , the court did not find that these tactics were so reprehensible to basic soc ietal 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 vol untary confess ion inadmissible “ where the deception does not produce an untrustworthy confession or of fend 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).J

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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, intell igent 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 w ith our well

- settled case law. Although Appellant was previously given improper M iranda warnings, indeed, the police properly advised Appellant of his constitutional rights prior to obtaining the video statement taken from 3:03 p.m. un til 3:26 p.m. on August 2, 2014

. A prior Miranda violation does not preclude a suspect from waiving Miranda right s 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 [Harre ll] 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 o f his convictions was against the weight of the evidence

. Appellant’s Brief at 33, 51

- 64. Specifically, to support his contention,J

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Appellant argues that “ [n]o one witnessed the child’s fatal injuries,” asserts the child ’s injuries were “ accidental in nat ure, ” and cites trial testimony that he is a peaceful and law

- abiding citizen. Id. at 63. In addition, Appel lant claims that “[t]he jury placed greater weight upon the expert witness’s conclusion

– based upon a preponderance of the evidence standard.” I d. 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 th e 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 omi tted) (emphasis in original)). After reviewing all of the evidence, “including evidence of the [Appellant’s] good character[,]” the trial court concluded the verdict wa s not against the weight of the evidence bec ause the decedent endured injuriesJ

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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 repor t 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., 6/17/2 0 1 6, at 80

- 81, 104

- 109. Dr. Wainer summarized the multitude of inj uries 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/ 20 16, 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 he ad 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.J

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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 dea th beyond a rea sonable 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 reaso nable doubt. Trial Co urt 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 evide nce 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 d efendant’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). T he jury was free to believe the testimony of Dr. McColgan and Dr. Wainer. Moreove r, 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

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Upon review , w e 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