J-S30014-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

SAMUEL N. CABRERA

Appellant No. 511 EDA 2015

Appeal from the Judgment of Sentence January 16, 2015

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0009793-2013

BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and JENKINS, J. 

MEMORANDUM BY GANTMAN, P.J.: FILED JUNE 15, 2016

Appellant, Samuel N. Cabrera, appeals from the judgment of sentence 

entered in the Philadelphia County Court of Common Pleas, following his 

convictions of third degree murder, involuntary manslaughter, and 

endangering the welfare of children (“EWOC”).1 We affirm. 

In its opinion, the trial court fully and correctly sets forth the relevant 

facts and procedural history of this case.2 Therefore, we have no reason to 

restate them. 

Appellant raises the following issues for our review: 

____________________________________________

1 18 Pa.C.S.A. §§ 2502(c), 2504(a), and 4304(a)(1), respectively. 

2 Appellant filed his supplemental concise statement of errors complained of 

on appeal pursuant to Pa.R.A.P. 1925(b) on June 4, 2015, not June 4, 2014, 

as stated in the trial court opinion. 
J-S30014-16

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WAS NOT THE EVIDENCE INSUFFICIENT TO SUPPORT THE 

VERDICT OF THIRD DEGREE MURDER AS A MATTER OF 

LAW WHERE APPELLANT DID NOT ACT WITH MALICE 

WHEN HE STRUCK HIS CHILD?

DID NOT THE TRIAL COURT ERR AS A MATTER OF LAW 

AND ABUSE ITS DISCRETION IN ALLOWING HEARSAY 

TESTIMONY IN THE FORM OF A VIDEO RECORDING OF A 

CHILD WITNESS PURSUANT TO THE TENDER YEARS 

HEARSAY ACT, 42 [PA.C.S.A]. § 5985.1, WHERE THE 

HEARSAY DID NOT CONTAIN CORE INDICIA OF 

RELIABILITY—SPONTANEITY AND CONTEMPORANEITY[?]

(Appellant’s Brief at 3). 

A challenge to the sufficiency of the evidence implicates the following 

legal principles: 

The standard we apply in reviewing the sufficiency of the 

evidence is whether viewing all the evidence admitted at 

trial in the light most favorable to the verdict winner, there 

is sufficient evidence to enable the fact-finder to find every 

element of the crime beyond a reasonable doubt. In 

applying [the above] test, we may not weigh the evidence 

and substitute our judgment for the fact-finder. In 

addition, we note that the facts and circumstances 

established by the Commonwealth need not preclude every 

possibility of innocence. Any doubts regarding a 

defendant’s guilt may be resolved by the fact-finder 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. The Commonwealth may sustain 

its burden of proving every element of the crime beyond a 

reasonable doubt by means of wholly circumstantial 

evidence. Moreover, in applying the above test, the entire 

record must be evaluated and all evidence actually 

received must be considered. Finally, the [finder] of fact 

while passing upon the credibility of witnesses and the 

weight of the evidence produced, is free to believe all, part 

or none of the evidence. 

Commonwealth v. Jones, 874 A.2d 108, 120-21 (Pa.Super. 2005) 
J-S30014-16

- 3 -

(quoting Commonwealth v. Bullick, 830 A.2d 998, 1000 (Pa.Super. 

2003)). 

The Crimes Code defines murder as follows: 

§ 2502. Murder

(a) Murder of the first degree.—A criminal homicide 

constitutes murder of the first degree when it is committed 

by an intentional killing. 

(b) Murder of the second degree.—A criminal 

homicide constitutes murder of the second degree when it 

is committed while defendant was engaged as a principal 

or an accomplice in the perpetration of a felony. 

(c) Murder of the third degree.—All other kinds of 

murder shall be murder of the third degree. Murder of the 

third degree is a felony of the first degree. 

* * *

18 Pa.C.S.A. § 2502(a)-(c). “Murder in the third degree is an unlawful 

killing with malice but without the specific intent to kill.” Commonwealth 

v. Dunphy, 20 A.3d 1215, 1219 (Pa.Super. 2011). Malice is defined as: 

[A] wickedness of disposition, hardness of heart, cruelty, 

recklessness of consequences, and a mind regardless of 

social duty, although a particular person may not be 

intended to be injured.... [M]alice may be found where the 

defendant consciously disregarded an unjustified and 

extremely high risk that his actions might cause serious 

bodily injury. 

Commonwealth v. DiStefano, 782 A.2d 574, 582 (Pa.Super. 2001), 

appeal denied, 569 Pa. 716, 806 A.2d 858 (2002). “Malice may be inferred 

by considering the totality of the circumstances.” Dunphy, supra. 

After a thorough review of the record, the briefs of the parties, the 
J-S30014-16

- 4 -

applicable law, and the well-reasoned opinion of the Honorable Sandy L.V. 

Byrd, we conclude Appellant’s issues on appeal merit no relief. The trial 

court opinion comprehensively discusses and properly disposes of the 

questions presented. (See Trial Court Opinion, filed September 30, 2015, at 

11-16, 24-28) (finding: (1) Commonwealth’s expert witness, Dr. Aaron 

Rosen, described victim’s injuries to include multiple rib fractures, fractured 

collarbone, and significant lacerations to victim’s liver; Dr. Rosen opined to 

reasonable degree of medical certainty that these injuries caused victim’s 

death and were caused by severe blunt force trauma; Dr. Rosen also noted 

that victim’s autopsy revealed new bone formation on victim’s rib and 

collarbone, which indicated victim had sustained prior injuries; Dr. Rosen 

further stated that elasticity of child’s bones makes them very difficult to 

fracture and that victim’s injuries required significant amount of force; 

Commonwealth also demonstrated Appellant’s guilt through introduction of 

Appellant’s three different statements of what happened to victim; 

Appellant’s different versions of incident indicated Appellant’s attempt to 

hide fact that he was alone with victim when victim sustained fatal injuries; 

all of Commonwealth’s evidence established Appellant grossly disregarded 

that his actions might create substantial and unjustifiable risk of death or 

serious bodily injury to victim; further, Appellant failed to obtain immediate 

medical care for victim in violation of his parental caretaking duties; thus, 

Commonwealth proved beyond reasonable doubt that Appellant acted with 
J-S30014-16

- 5 -

malice when he beat victim to death, and trial court properly convicted 

Appellant of all offenses charged; (2) video of child witness’ statement, 

taken six months after victim’s death, was relevant to Appellant’s case; 

additionally, time, content and circumstances of statement provided 

sufficient indicia of reliability; video revealed that only person present during 

interview with child witness was interviewer from Philadelphia Children’s 

Alliance; in fact, child advocate, detective, and social worker merely 

observed interview from another room and were not involved in questioning 

of child; additionally, statement given by child witness was spontaneous and 

mirrored child witness’ in-court testimony; further, child witness 

demonstrated competent mental state, used terminology of child of similar 

age, and lacked motive to fabricate; thus, Commonwealth established 

truthfulness and reliability of statement, and trial court properly admitted 

statement pursuant to Tender Years Hearsay Act). We accept the court’s 

sound reasoning. 

To the extent the separate sentence for Appellant’s EWOC conviction 

implicates the legality of the sentence, which we raise sua sponte,

3

the court 

indicated on the record that this conviction stemmed from Appellant’s failure 

to seek medical attention for victim. In contrast, Appellant’s third degree 

____________________________________________

3 See Commonwealth v. Randal, 837 A.2d 1211 (Pa.Super. 2003) (en 

banc) (stating appellate court can raise and review legality of sentence sua 

sponte). 
J-S30014-16

- 6 -

murder and involuntary manslaughter convictions stemmed from Appellant’s 

beating of the victim. Because Appellant’s involuntary manslaughter and 

EWOC convictions pertained to separate criminal acts committed by 

Appellant, they do not merge for sentencing purposes. See 

Commonwealth v. Robinson, 931 A.2d 15 (Pa.Super. 2007) (en banc) 

(holding concepts of merger do not apply when defendant commits multiple 

distinct criminal acts). Thus, the court properly imposed a separate, 

concurrent sentence for Appellant’s EWOC conviction. Accordingly, we affirm 

the judgment of sentence on the basis of the trial court opinion. 

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/15/2016
.ce-;:-}z;_; y / 

1 Defendant was charged with murderofthe third degree (18 PA. CONS. STAT.ANN.§ 2502(c)); involuntary manslaughter 

§ 2504 (a); and endangering the welfare of a child § 4304 (a)(]). 

2 Defendant received a sentence of twenty (20) - forty (40) years of confinement for the charge of murder of the third 

2015 directing defendant to file a Statement of Matters Complained of on Appeal in accordance with 

of Appeal on defendant's behalf on February 13, 2015. This court issued an order on February 17, 

to an aggregate twenty (20) - forty ( 40) years of state incarceration.' Appellate counsel filed a Notice 

manslaughter and endangering the welfare of a child. On January 16, 2015 defendant was sentenced 

2014. On November 13, 2014 defendant was found guilty of murder of the third degree, involuntary 

offenses.1 After waiving a jury trial, defendant was tried by this court, commencing on November 12, 

Defendant Samuel N. Cabrera was arrested on April 11, 2013 and charged with a range of 

I. PROCEDURAL HISTORY 

Opinion. 

In accordance with the requirements of PA. R.APP. PROC. 1925, this court submits the following 

Samuel N. Cabrera filed a direct appeal from this court's January 16, 2015 judgment of sentence. 

Byrd, J. September30,2015 

OPINION 

Crimina r .f.\opeals Uni. 

First Judic1a1'rnstrict 01 ;::~ 

SEP 3 0 2015 511 EDA 2015 

FILED 

1111111111111111 m 

7351092121 

SAMUEL N. CABRERA 

V, CP-51-CR-0009793-201~;;~~~- v. Cabrera. Samuel N. SUPERIOR COURT 

COMMONWEAL TH OF PENNSYLVANIA CP-51-CR-0009793-2013 

IN THE COURT OF COMMON PLEAS PHILADELPHIA COUNTY 

CRIMINAL TRIAL DIVISION 

Circulated 05/17/2016 03:03 PM
Commonwealth v. Samuel Cabrera 

2 

degree, of which involuntary manslaughter was merged and a concurrent two and one-half (2.5) - five (5) years on the 

charge of endangering the welfare of a child. 

3 NAS occurs when a baby goes through drug withdrawal and requires medical monitoring. N. T 11/12/2014 at 84. 

4 Defendant and Ms. Wycoff visited S, C, a total of seven days including the day he was discharged into their 

care. N. T 11/12/2014 at 85. 

March 26, 2013, the day of discharge, both defendant and Ms. Wycoff received special instructions 

the NICU at Lankenau from January 2013 to March 26, 2013, for a total of seventy-six days before 

he was discharged into the custody of defendant and Ms. Wycoff. NT 11/ 12/2014 at 82, 84. 4 On 

Intensive Care Unit (NICU). NT 11/7/2014 at 15-16, 67; N.T. 11/12/13 at 83-84. He remained in 

methadone, methamphetamines and marijuana prior to birth, and admitted into the Neonatal 

where he was diagnosed with Neonatal Abstinence Syndrome (NAS)3, as a result of exposure to 

11/12/2014 at 140. s.c . was born £M. J {.iM.IA..<vl-'1, 20 13 in the Lankenau Medical Center 

Ms. Wycoff smother, Gabriella and Ms. Wycoff s grandmother, "Toto." N T 11/7/2014 at 15; NT 

and three-month-old s ... c. ; the decedent. Also living in the home were 

13 . W , l , sixteen-month-old G .. \N.' "!:. ld'" six-year-old} ;; rour-year-o / 

Pennsylvania with his fiancee, Jennifer Wycoff and her children, seven-year-old f'l.W.V. J. 

In 2013 defendant Samuel Cabrera resided at 618 N. 63rd Street in Philadelphia, 

Commonwealth as the verdict winner established the following. 

During the trial evidence was presented which when viewed in the light most favorable to the 

II. FACTUALBACKGROUND 

June 4, 2014, on which date said statement was timely filed. 

receipt of the completed notes of testimony. On May 14, 2015 an extension to file was granted until 

for an Extension of Time to File a Supplemental Statement of Errors Complained of on Appeal after 

PA. RAPP. PROC. 1925 (b). On March 10, 2015, defendant filed said statement along with a Motion 
Commonwealth v. Samuel Cabrera 

3 

regarding necessary developmental and follow-up care, including an instruction to take S. C • 

to his pediatrician within two to four days after discharge from Lankenau Medical Center. Id. at 86. 

On April 9, 2013 at 11 : 00 a.m., fourteen days after discharge, defendant andli S. C w' s 

grandmother took him to his pediatrician, Dr. Mangano for a follow-up visit. N.T. 11/7/2014 at 16; 

N.T. 11/12/13 at 103. Immediately afterwards, at approximately 12:00p.m.,.,v s. c. /was taken 

back home where defendant took him upstairs and laid him in his playpen. N.T. 11/7/2014 at 17;N.T 

11I12/2014 at 141-14 2. Defendant then went back downstairs where the grandmother was cooking 

and both adults later went outside together. N.T. 11/12/2014 at 141-142. At about 1:45 p.m., 

defendant heard/ 5 · C • J, crying, and he brought the child downstairs to change his diaper. 

11/7/2014 at 17; N.T. 11/12/2014 at 142. Afterwards,' S · C • .: fell asleep and defendant took 

him back upstairs and laid him on the bed in Ms. Wycoff' s bedroom. Id Defendant then left the baby 

inthecareofthechild'sgrandmother. ll/7/2014at 17;N.T. ll/12/2014at 142, 172. 

When defendant returned around 3 :20 p.m., Ms. Wycoff had just arrived home with the other 

children. N. T. 11/7/2014 at 18; N. T. 11/12/2014 at 142, 172; N. T. 11113/2014 at 11. Upon her arrival, 

s. c. (was crying loudly and defendant went upstairs with F\ .W.1/. ~ following behind him. 

N.T. 11/13/2014 at 12. After defendant entered Ms. Wycoff's bedroom, where, S .c. was 

crying, he pushed ~. w. V, out of the room and closed the door behind him. N.T 11/13/2014 at 13. 

A. W, \J. rtestified5 that she subsequently heard defendant yell at· S. c. /and tell him to be 

quiet, before she heard the child crying and choking. N.T. 11/13/2014 at 14-15. A.~.V. further 

testified that she called her mother upstairs, who tried but could not open the bedroom door. N. T. 

11/13/2014 at 14. t A.W,V. then ran downstairs and minutes later Ms. Wycoff ran downstairs 

holding a black and blue s. c. : irt her arms while screaming and crying that he was cold and 
Commonwealth v. Samuel Cabrera 

5 At trial A• W • \J, Hestified and an admissible portion of her videotaped October 28, 2013 interview with the 

Philadelphia' Cnildien Alliance was played. N. T. 11/13/2014 at 5-21. 

4 

S. C. 1 defendant questions regarding the cause of s 'injuries and wrote down both the 

Jackson into a different family room in the same facility. Id. at 11, 30-31. Officer Meissler asked 

Officer Meissler into a small family room and Ms. Wycoff was asked to accompany Detective 

Services and hospital social workers. NT. 11/7/2014 at 11. Defendant was asked to accompany 

observed defendant and Ms. Wycoff in a conference room speaking with Department of Human 

Unit with signs of abuse. NT. 11/7/2014 at 9-10; NT. 11/12/2014 at 137. Upon arrival, the officers 

of the Special Victims Unit arrived at CHOP after receiving the report ofa baby in the Intensive Care 

Later that evening, around 1 O: 00 p .m., Officer Gregory Meissler and Detective Daria Jackson 

Philadelphia (CHOP) at approximately 4:15 p.m. Id 

hospital'l s. c. fhad a very faint pulse. Id at 117. They arrived at the Children's Hospital of 

124. The paramedics continued CPR the entire way to the hospital. Id at 118. En route to the 

asked defendant to take over chest compressions for approximately thirty seconds. Id. at 116-117, 

medications to S . c . '}md after showing defendant the proper way to administer CPR, they 

and attempted to intubate and ventilate him. Id. at 116, 121-122. While the paramedics administered 

at 115. The paramedics immediately placed/ S, c . /in the back of the ambulance, began CPR 

residence holding/ .S. C, :.who was not breathing, very pale, cold and in a serious condition. Id 

approximately five minutes later.NT. 11/7/2014 at 113-114. Defendant was standing outside the 

143, 171-73. Paramedics were dispatched at about 3:48 p.m. and arrived at the residence 

approximately 3:43 p.m. Ms. Wycoff dialed 911. NT. 11/7/2014 at 19; NT. 11/12/2014 at 111-112, 

18. At some point, defendant attempted to perform untrained CPR on/ .S.C. J and at 

was not breathing.NT. 11/7/2014 at 18-19; NT. 11/12/2014 at 143,170-171 ;NT. 11/13/2014 atl 7- 
Commonwealth v. Samuel Cabrera 

6 The interview was later memorialized and typed N. T 11/7/2014 at 13. 

5 

month-old S .c. 1pefore he read defendant his Miranda rights. NT. 11/7/2014 at 57-6l;NT. 

During this interview, Detective Sierra explained that they were going to discuss the death of threeNT. 11/ 12/2014 at 157. Defendant was subsequently given written Miranda warnings at 10: 19 p.m, 

it, but we'll be able to prove scientifically and medically that's not how the injuries were sustained." 

11/7/2014 at 55;NT. 11/12/2014 at 157. Detective Sierra then replied "if that's your story, we'll take 

S. C. rup the steps when he tripped on loose carpeting and dropped the baby twice. NT. 

the record.'' NT. 1117/2014 at 5 5; NT. 11I12/2014 at 157. Defendant then stated that he was carrying 

was asked how; s . c. . Freceived the injuries, he stated that he wanted his response to be "off 

notes. N.T. 11/7/2014 at 52; NT. 11/12/2014 at 155. Detective Sierra testified that when defendant 

Homicide Detective William Sierra and his partner initiating the interview or taking any handwritten 

Defendant was taken to an interview room, where he was first given oral Miranda rights prior to 

transported to the Philadelphia Homicide Unit. NT. 11/7/2014 at 42, 54; NT. 11/12/2014 at 154-55. 

On the evening of April 10, 2013 around 6:50 p.m. defendant and Ms. Wycoff were 

11/7/2014 at44; NT. 11/12/2014 at 41, 144. 

11/7/2014 at 20. By 12:12 a.m. on April 10, 2013 S. C. 1 was pronounced dead. NT. 

injuries as a result of inflicted trauma, but neither defendant nor Ms. Wycoff were suspects. 

he had only been informed that' S . c . sustained multiple severe non-accidental internal 

custody.NT. 11/7/2014 at 19. He further stated that prior to conducting the informational interview 

defendant was not given Miranda warnings prior to being questioned because defendant was not in 

2013 at 10:45 p.m. NT. 11/7 /2014 at 14; NT. 11/12/2014 at 143-144. Officer Meissler testified that 

Defendant reviewed, signed and dated the handwritten interview, attesting to its veracity on April 9, 

questions and answers as close to verbatim as he could.6 Id at 12; NT. 11/12/2014 at 139-140. 
Commonwealth v. Samuel Cabrera 

6 

I brought my son upstairs to lay him down . . . I laid him in our bed 

in our room. The first middle bedroom is our room ... I then went 

downstairs and I let my dog in from the front porch. I came in and 

opened the door and he jetted upstairs. That's what he normally does 

anyways because he sleeps in our room ... I come upstairs and I was 

yelling for him. The dog pushed the rest of the door open to let 

himself in our bedroom. I was calling him telling him to get off the 

bed, get off the bed. He doesn't listen all the time. He didn't listen, so 

I went to swing at him so he knows to jump off the bed. And then I 

went to punch at his back legs, he jumped out of the way and I hit my 

son ... in his right side ... twice. I didn't mean to[sic], I really didn't. 

The first time ... I swung my left hand (indicating using the inside 

part of a closed fist" striking my baby on his left arm ... When I hit 

him with the first punch I just thought I knocked the wind out of him 

by accident. I was trying to get the dog off the bed not realizing that 

my son was having trouble breathing. Not until I swung at the dog 

and he jumped off the bed, and ran back downstairs did I realize that 

my son was out of breath; like when someone hi ts us in our stomach . 

. . I didn't think anything was severely wrong with him ... so I put 

pressure on his chest and stomach . . . he started breathing normal 

again ... all he did was cry. So I gave him his bottle, he drank some 

milk, and he fell asleep. I didn't think nothing was wrong with him. 

Then I left to get the girls from school ... When I got home, I went 

upstairs and checked on the baby. He looked fine so I came 

downstairs ... My wife went upstairs with the other two young girls, 

the four and six year old ... she came downstairs carrying the baby 

crying, saying he was cold, he wasn't breathing and that his skin color 

happened to s. C • J 'defendant provided the following account of events: 

wasn't listening." NT. 11/7/2014 at 68; NT. 11/12/2014 at 164. When asked to further explain what 

swung at my dog to get him away from the baby and I hit my son in the side [twice] because the dog 

responsible for the sudden death of your son?[,]" defendant stated "[y]es, but it was an accident. I 

demeanor seemed to be relieved.NT. 11/7/2014 at 64. When asked "do you know who is personally 

Detective Sierra further testified that as the interview became more formal, defendant's upset 

warnings sheet at 10:27 p.m. NT. 11/7/2014 at 57-61; NT. 11/12/2014 at 159. 

him. 11/7/2014 at 68; NT. 11/12/2014 at 160-164. Defendant signed and dated the formal Miranda 

11/12/2014 at 159. Defendant stated that he fully understood his rights as they were explained to 
Commonwealth v. Samuel Cabrera 

7 

7 At trial, •_ A• W 'Y • Ct~stified that the family dog remained on the porch during the incident that led to S .c. 's 

"death.NT 11/13/2014 at 21. 

happened he would kill "a family member." Id. 

stating that before the intruder exited the house, he threatened defendant that ifhe told anyone what 

child, defendant heardf ~ .c- [scream, and the intruder ran out. Id. Defendant concluded by 

pointed a gun at him. Defendant further stated that the male intruder then ran into the room with the 

hearing s. c. 'crying, he ran upstairs and the male intruder hit him from behind and then 

doors to his home were open and that an intruder had broken in. Id. Defendant also stated that upon 

that at some point before picking up the children from school, he returned home and noticed that the 

al temati ve for s .c. '.s ~;injuries.NT. 11/12/2014 at 190. On the prison tape, defendant stated 

trial in this matter, placed a phone call from prison to an unknown male wherein he provided a third 

At trial the parties stipulated that on August 24, 2013 defendant, while incarcerated awaiting 

11/7/2014 at 77; N T. 11/ 12/20 14 at 178. 

murder of his son, detectives found defendant lying in a pool of blood of his own making. NT. 

jaw. Id On the same day, after defendant was informed that he would be formally charged with the 

happened, defendant stated to detectives that the injury "was no big deal[,]" he bit the inside of his 

found him with blood on his shirt.NT. 11/7/2014 at76;NT. 11/12/2014 177-178. When asked what 

176. Later, while defendant was alone in the interview room, awaiting formal charges, detectives 

consentto a video statement on April 11, 2013 at 1 :26 a.m. N T. 11/7/2014 at 73; NT. l l /12/2014 at 

stated" ... I don't have money for bail and s .c. '..s lfuneral." Id at 174. Defendant signed a 

N T. 11112/2014 at 167-171. When detectives asked defendant ifhe had any additional statements, he 

was really light. .. I started CPR. I panic[ked] because I didn't call 

the ambulance or doctor knowing that my son stopped breathing 

because of me.7 
Commonwealth v. Samuel Cabrera 

8 

right heel. Id at 43. 'S. c . ::also suffered several severe internal injuries including five rib 

revealed a large area of pinkish red and several other contusions and scattered abrasions over his 

abdomen and mid-chest area. Id. at 42-43. There were also several contusions on/ s.c. '.s 

extremities, specifically his left thigh, lower right knee, left foot, and toes and a laceration on his 

left eye and on his upper eyelid and right cheek. Id. at 42. Observation of/ s.c. '.s . ,.torso 

Hospital care team, who also contacted the Department of Human Services (DHS), to schedule the 

appointment. NT 11/12/13 at 88-89, 99. Dr. Mangano testified that during !\ s .c . \ .s i / 

examination, he was irritable and cried for most of the visit, as expected from a baby with NAS, but 

he was also consolable and settled down after careful soothing. Id. at 100-101. Dr. Mangano opined 

that irritability and crying caused by a healing rib and clavicle fracture would be very difficult to 

distinguish from NAS associated irritability. Id. at 102. Because} s. c . fhad loss a significant 

amount of weight since being discharged from Lankenau, he changed the baby's feeding regime and 

scheduled a follow-up visit for April 9, 2013. Id. at 101-102. 

Dr. Aaron Rosen, an Assistant Medical Examiner, performed an autopsy oq) S. C. 1..s I 

body and prepared a report based on his findings and information received from the Children's 

Hospital ofPhiladelphia(CHOP). NT 11/12/2014 at38-40. Dr. Rosen, the Commonwealth's expert 

in forensic pathology, concluded to a reasonable degree of medical certainty the child's death was 

caused by multiple blunt impact injuries, and that the manner of death washomicide, Id. at 41. 

During the autopsy Dr. Rosen observed and reported the following external and internal injuries: 

abrasions and contusions (scrapes and bruises) below, above and adjacentto S. C. 1.S J right and 

Mangano first saw 5 .c. ion April 5, 2013 after his office was contacted by the Lankenau 

testified as the Commonwealth's expert in the field of pediatric medicine.NT 11/12/13 at 97. Dr. 

Dr. Mark Mangano, s. c. '.s ; pediatrician, examined him twice ante-mortem and 
Commonwealth v. Samuel Cabrera 

9 

8 Dr. Rosen however noted that CPR only accounted for some of the injuries on S. C. ·~ mid-chest region and did 

not explain the other significant injuries to rest of the body. N.T 11/12/13 at oo. 

9Dr. Rosen further explained that if fwas on a soft surface it would have likely taken more than two blows to s.c. 

defendant punching s . c . at least twice9 would be consistent with the injuries suffered. Id 

baby would not explain the injuries he observed. Id at 5 8. On the contrary, Dr. Rosen confirmed that 

in his arms, tripping and dropping the testified that defendant walking up the steps with' s.c. 

force often occurs during a vehicular accident and is rarely the result ofimproper CPR. Id. Dr. Rosen 

fracture and doing so would require a significant amount of force. Id. at 57. He also added that such 

Dr. Rosen explained that the elasticity of children's bones makes them very difficult to 

revealed some bruising from medical intervention and possibly CPR. Id at 53-54.8 

to open the abdomen and relieve the bleeding and trauma. Id. at 51-53. Thus, external examination 

to save'.! s. c. 1 S , life, which included an operation, resuscitation and an incision in an attempt 

go into shock and stop breathing. Id Dr. Rosen also described the efforts CHOP took in an attempt 

Id at 50. Dr. Rosen testified that abdominal compartment syndrome (ACS) caused' S. c.. fto 

circulatory system and vessels into the abdomen resulted in significant blood loss and led to death. 

internal injuries led Dr. Rosen to conclude that exsanguination from heavy bleeding out of the 

caused a hemorrhage and blood entered the abdominal cavity. Id at 49. Further observation of the 

cause that amount of damage to the liver. Id. at 48. Dr Rosen explained that the trauma to the liver 

47-48. The laceration's size led Dr. Rosen to opine that a severe amount ofblunttrauma was used to 

was five centimeters long and the full thickness of the liver damaging multiple blood vessels. Id. at 

Dr. Rosen also observed several significant lacerations or1 S .c. '-> liver, one of which 

conclude that there had been prior injury. Id. at 46-47. 

collar bone showed evidence of new bone formation on top of old fractures which led Dr. Rosen to 

fractures and a fractured clavicle (collar bone). Id. at 44-46. One of the rib fractures and the fractured 
Commonwealth v. Samuel Cabrera 

cause the injury, as opposed to if he was on a hard surface, like the ground. N. T 11/12/13 at 59. He reasoned that 

sometimes children fall or are dropped and do not suffer injuries remotely similar toO s .. c.' ~ '. Id. 

10 The statement below was taken verbatim from defendant's filed Statement of Errors 

10 

e. The Motions Court erred and abused its discretion by grartinrr thP. 

f'ommcmwealth' s motion to allow the video of child witness Ii Pf. W. \J • 

1Jo be shown at trial and admitted into evidence, as it ranee 10 

meet me reuability criteria of the Tender Years Hearsay Act. 

d. The Motions Court erred and abused its discretion by denying appellant's 

motion to preclude the prison tape from being played during the trial as it was 

not relevant or probative as it was, for example, neither an admission by a 

party opponent as to intent, or impeachment evidence, where appellant's 

defense was that the act which led to the death of his son was not done with 

malice and thus did not rise to third degree murder. 

c. The Motions Court erred as a matter of law and violated appellant's rights 

under the federal and state constitutions when it denied his motion to 

suppress his formal written statement and video statement (C-4; C-4A) as 

they were taken subsequent to a non-mirandized verbal statement and thus 

tainted. 

b. The Motions Court erred as a matter of law and violated appellant's rights 

under the federal and state constitutions when it denied his motion to 

suppress the statement given to P.O. Meissler from the SVU where appellant 

was not warned of his rights pursuant to Miranda prior to interrogation under 

circumstances under which any reasonable person would not have felt free to 

leave and thus was the equivalent of custody for Miranda purposes. 

a. The evidence presented by the Commonwealth was insufficient to prove 

beyond a reasonable doubt that appellant was guilty of third degree murder in 

that there was insufficient evidence of appellant's mens rea to prove malice. 

Statement of Matters Complained of on Appeal." 

In accordance with PA. R.APP. PROC. 1925 (b) defendant raised the following issues in his 

III. STATEMENT OF MATTERS COMPLAINED OF ON APPEAL 

symptoms, was found in s . c . '.5 system at autopsy. N. T ll / 12/13 at 99. 

NAS and help babies get over addictions to drugs ingested during pregnancy to prevent withdrawal 

after the injuries were inflicted. Id. at 60. Finally, phenobarbital, a common medication used to treat 

Dr. Rosen opined that! s. C. .Avould have stopped breathing approximately twenty minutes 
Commonwealth v. Samuel Cabrera 

11 

IV. DISCUSSION 

Defendant now challenges the sufficiency of the evidence to support the verdict of murder in the 

third degree. Further, he also challenges rulings of the motions court, including the denial of his 

motion to suppress. Although this court did not preside over the motions hearing in this case, a 

thorough review of the record and notes of testimony, reveals that defendant's claims lack merit. 

Our Supreme Court "has long recognized that judges of coordinate jurisdiction sitting in the 

same case should not overrule each others' decisions." Commonwealth v. Starr, 541 Pa. 564, 573- 74 

(1995). "This rule, known as the "coordinate jurisdiction rule," is a rule of sound jurisprudence based 

on a policy of fostering the finality of pre-trial applications in an effort to maintain judicial economy 

and efficiency." Id The "coordinate jurisdiction rule falls squarely within the ambit of a generalized 

expression of the "law of the case" doctrine." Id. at 574. "This doctrine refers to a family of rules 

which embody the concept that a court involved in the later phases of a litigated matter should not 

reopen questions decided by another judge of that same court or by a higher court in the earlier 

phases of the matter." Id. "Among the related but distinct rules which make up the law of the case 

doctrine are that ... upon transfer of a matter between trial judges of coordinate jurisdiction, the 

transferee trial court may not alter the resolution of a legal question previously decided by the 

transferor trial court." Id See Commonwealth v. Washington, 428 Pa. 131, 133 n. 2, 236 A.2d 772, 

773 n. 2 (1968) (citation omitted) (a trial judge cannot reverse on the same record at trial the decision 

made after the pretrial suppression hearing that defendant's statement need not be suppressed); 

Commonwealth v. Rolan, 2008 PA Super 291, 964 A.2d 398, 404 (2008) (in permitting testimony, 

trial court was following the pretrial ruling of a judge of the same court of common pleas). 

A. Sufficiency of the evidence 

"In considering a challenge to the sufficiency of the evidence, the Court must decide whether 
Commonwealth v. Samuel Cabrera 

12 

the evidence at trial, viewed in the light most favorable to the Commonwealth, together with all 

reasonable inferences there from, could enable the fact-finder to find every element of the crimes 

charged beyond a reasonable doubt." Commonwealthv. Walsh, 36 A.3d613, 618 (Pa. Super. 2012) 

( citations omitted). "In assessing the sufficiency of evidence, a reviewing court may not weigh the 

evidence and substitute its own judgment for that of the fact-finder, who is free to believe all, part, or 

none of the evidence." Commonwealth v. Ramtahal, 33 A.3d 602, 607 (Pa 2011). "The facts and 

circumstances established by the Commonweal th need not preclude every possibility of innocence." 

Commonwealth v. DiStefano, 782 A.2d 574, 582 (Pa. Super. 2001), appeal denied, 806 A.2d 858 

(Pa. 2002). "Any doubts regarding a defendant's guilt may be resolved by the fact-finder 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. Cassidy, 668 A.2d 1143, 1144 (Pa. Super. 

1995), appeal denied, 681 A.2d 176 (Pa. 1996) (citation omitted). ''The Commonwealthmay sustain 

its burden of proving every element of the crime beyond a reasonable doubt by means of wholly 

circumstantial evidence." Id. "Moreover, in applying the above test, the entire record must be 

evaluated and all evidence actually received must be considered." Commonwealth v. Muniz, 5 A. 3d 

345, 348 (Pa. Super.2010), appeal denied, 19 A.3d 1050 (Pa. 2011) (citation omitted). Finally, "[i]f 

the record contains support for the verdict, it may not be disturbed." Commonwealth v. Adams, 882 

A.2d 496, 499 (Pa. Super. 2005) (citation omitted). 

Here, defendant challenges his conviction for third-degree murder. Specifically, defendant 

claims that "[t]he evidence presented by the Commonwealth was insufficient to prove beyond a 

reasonable doubt that [he] was guilty of third degree murderin that there was insufficient evidence of 

appellant's mens rea to prove malice." Statement of Errors ~ a This claim is without merit. 
Commonwealth v, Samuel Cabrera 

13 

several fatal injuries of a brutal nature as detailed in the autopsy report. Indeed, Dr. Aaron Rosen 

events in an attempt to mask the truth, that he was alone with S. C • 'when the child sustained 

The evidence as discussed below shows that defendant provided three different versions of 

Fisher, 622 Pa. at 375 (citations omitted). 

[T]hird degree murder is not a homicide that the Commonwealth must prove was 

committed with malice and without a specific intent to kill. Instead, it is a homicide 

that the Commonwealth must prove was committed withrnalice, but one with respect 

to which the Commonwealth need not prove, nor even address, the presence or 

absence of a specific intent to kill. Indeed, to convict a defendant for third degree 

murder, the jury need not consider whether the defendant had a specific intent to kill, 

nor make any finding with respect thereto. 

(Pa. Super. 1998). In short, the Court has noted that: 

specific intent to kill required in first-degree murder." Commonwealth v. Kellam, 719 A.2d 792, 797 

of the victim." Id. Moreover, "third-degree murder is a killing done with legal malice but without the 

where the omission or failure to perform a legal duty was willful and will probably result in the death 

Commonwealth v. Kellam, 719 A.2d 792, 797 (Pa. Super. 1998). Likewise, "[m]alice may also exist 

actions might create a substantial and unjustifiable risk of death or serious bodily injury." 

principal acts in gross deviation from the standard of reasonable care, failing to perceive that such 

person may not be intended to be injured." Fisher, 622 Pa. at 375. Thus, "[m]alice exists where the 

heart, recklessness of consequences, and a mind regardless of social duty, although a particular 

comprehends not only a particular ill-will, but ... [also a] wickedness of disposition, hardness of 

S. Ct. 2314 (2014) (internal citations omitted). Our Supreme Court has held that "malice 

Commonwealth v. Fisher, 622 Pa. 366, 375 (2013), cert. denied sub nom., Bestv. Pennsylvania, 134 

Commonweal th need only prove that the defendant killed another person with malice aforethought." 

beat his infant son to death. To sustain a conviction for murder of the third degree, "the 

In this case, the Commonwealth proved beyond a reasonable doubt that defendant brutally 
Commonwealth v. Samuel Cabrera 

breathing, so he did not seek medical attention. However, once defendant realized that. s.c. 

14 

Further, evidence to support the verdict of murder in the third-degree must include the three 

different versions of events defendant provided on three separate occasions to explain! s. c . \ .s 

injuries. To account for the severe internal injuries that! S .c. /suffered, including five rib 

fractures and a fractured collar bone, defendant first stated to homicide detectives that he accidentally 

dropped the child twice while carrying him on the steps. When Detective Sierra responded that a 

medical examination would be able to disprove that account, defendant created a different account of 

what happened. Defendant proceeded to tell detectives that while trying to remove the family dog 

from the bed s . C. was lying on he accidentally punched the child twice and neglected to 

seek medical attention after observing him in distress. Defendant stated to detectives, "I swung my 

left hand (indicating using the inside part of a closed fist) striking my baby on his left arm ... When I 

hit him with the first punch I just thought I knocked the wind out of him by accident." Allegedly, 

after punching! S. c . \' defendant did not immediately realize that the child was having trouble 

testified to a reasonable degree of medical certainty that the baby's death was caused by multiple 

blunt impact injuries. N. T 11/12/2014 at 3 8-40. Dr. Rosen described several severe internal injuries 

to' S. c. 

1 

.' including five rib fractures, and a fractured collar bone. Id. at 44-46. Dr. Rosen also 

described several significant lacerations on S. c. 15 liver, one of which was five centimeters 

long, the full thickness of the liver, caused by a severe amount ofblunt trauma. Id Additionally, Dr. 

Rosen explained how one of the rib fractures and the fractured collar bone had new bone formation 

on top of old fractures which showed that there had been prior injury. Dr. Rosen further stated that 

the elasticity of children's bones makes them very difficult to fracture, and the injuries suffered by 

S. C., required a significant amount of force that is often the result of a vehicular accident. Id 

at 57. 
Commonwealth v. Samuel Cabrera 

was out of breath "like when someone hits us in our stomach[,]" although he "didn't think anything 

was severely wrong with him ... [he] put pressure on S. C. 's I' chest and stomach" until he 

began to cry, but still did not "call [an] ambulance or doctor knowing that [his] son stopped 

breathing because of [him]." Clearly that conduct and subsequent failure to obtain immediate 

medical care for his son meets the Kellam standard of culpability. Especially when in reality, young 

A · W • V • testified that the dog was downstairs on the porch when she followed defendant upstairs. 

She further testified that defendant pushed her out of the bedroom but that she heard defendant tell 

S. c. 0 to be quite, followed by the child choking and gasping for air. Finally, while 

incarcerated and awaiting trial defendant concocted yet a third version of events in which he blamed 

the child's injuries on an armed intruder. 

Assuming arguendo that it was not defendant's conscious purpose to bring about the death of 

S • c. f the convincing evidence shows that defendant acted in gross deviation from the 

standard of reasonable care and failed to perceive that his actions might create a substantial and 

unjustifiable risk of death or serious bodily injury tq S .c. . Moreover, by his own admission, 

defendant's conduct constituted malice in that he failed to perform his parental duties to obtain 

medical care immediately after noticing that s . c.. :,7was having trouble breathing. "I started 

CPR. I panic[ked] because I didn't call the ambulance or doctor knowing that my son stopped 

breathing because of me." Thus, malice existed not only where defendant willfully struck his infant 

son multiple times, but also where his willful omission and failure to perform his parental duty 

resulted in the death of his son. 

Thus, it is indisputable that the Commonwealth has proven that the defendant killed/ S .c .. 

with malice aforethought. First, as stated above, defendant was alone with 5 . C. 

when the child sustained a brutal beating resulting in death. Additionally, not only did defendant's 

15 
Commonwealth v. Samuel Cabrera 

16 

actions reflect malice aforethought, but his failure to act also manifested ill-will and a wickedness of 

disposition, hardness of heart, recklessness of consequences, and a mind regardless of social duty 

evidencing malice. 

B. Motions to Suppress 

"In reviewing a ruling on a suppression motion, the standard of review is whether the factual 

findings and legal conclusions drawn therefrom are supported by the evidence." Commonwealth v. 

Kuzmanko, 709 A.2d 392, 396 (Pa. 1998). "[W]here the record supports the findings of the 

suppression court, [the reviewing court] is bound by those facts and may reverse only if the legal 

conclusions drawn therefrom are in error." Id. Thus the Superior Court considers "whether the 

suppression court properly applied the law to the facts of the case." Commonwealth v. Ruey, 5 86 Pa. 

230, 240 (2006). "In reviewing the denial of a [defendant's] motion to suppress evidence, [the 

Superior Court] consider[s] only the evidence of the prosecution's witnesses and so much of the 

evidence for the defense as, fairly read in the context of the record as a whole, remains 

uncontradicted." In re JV, 762 A.2d 376, 379 (Pa. Super. 2000) (citations omitted). "Once a motion 

to suppress evidence has been filed, it is the Commonwealth's burden to prove, by a preponderance 

of the evidence, that the challenged evidence was not obtained in violation of the defendant's rights." 

Commonwealth v. Wallace, 615 Pa. 395, 407 (2012)(citing PA. R.CRIM. PROC. 581(H)). 

To begin, defendant claims that he was deprived of his federal and state constitutional rights 

"where [he] was not warned of his rights pursuant to Miranda prior to interrogation under 

circumstances under which any reasonable person would not have felt free to leave and thus was the 

equivalent of custody for Miranda purposes." Statement of Errors ~ b. For the reasons stated below, 

this claim is meritless. 
Commonwealth v. Samuel Cabrera 

"[I]t is well-settled that the police are only required to advise a person of his Miranda rights 

if that person is subjected to custodial interrogation." Commonwealth v. Busch, 713 A.2d 97, 100 

(Pa Super. 1998). Thus, to "trigger the safeguards of Miranda, there must be both custody and 

interrogation." Commonwealth v. Cruz, 71 A.3d 998, 1003 (Pa. Super.2013). "As a general rule, the 

prosecution may not use statements, whether inculpatory or exculpatory, stemming from a custodial 

interrogation of a defendant unless it demonstrates that he was apprised of his right against selfincrimination and his right to counsel." Commonwealth v. Umstead, 916 A.2d 1146, 1149 (Pa. 

Super. 2007). "[P]olice detentions in Pennsylvania become custodial when, under the totality of the 

circumstances, the conditions and/or duration of the detention beoome so coercive as to constitute the 

functional equivalent of arrest." Commonwealth v. Turner, 772 A.2d 970, 973 (Pa. Super. 2001) 

(citations omitted). An arrest is defined as "an act that indicates an intention to take a person into 

custody or that subjects the person to the will and control of the person making the arrest." 

Commonwealth v. Gwynn, 555 Pa. 86, 723 A.2d 143, 148 (1998). 

The Superior Court has noted that"[ a]n interrogation for the purposes of Miranda refers not 

only to express questioning, but also to any words or actions on the part of police ( other than 

normally attendant to arrest and custody) that the police should know are reasonably likely to elicit 

an incriminating response from the suspect." Commonwealth v. Turner, 772 A.2d 970, 974 (Pa. 

Super. 2001) "Interrogation is defined as "police conduct calculated to, expected to, or likely to 

evoke admission." Commonwealth v. Snyder, 60 A.3d 165, 170(Pa. Super. 2013), appeal denied, 

620 Pa. 731 (2013). In effect, "[t]he test for determining whether a suspect is being subjected to 

custodial interrogation so as to necessitate Miranda warnings is whether he is physically deprived of 

his freedom in any significant way or is placed in a situation in which he reasonably believes that his 

freedom of action or movement is restricted by such interrogation." Commonwealth v. Chacko, 500 

17 
Commonwealth v. Samuel Cabrera 

18 

defendant was not subject to custodial interrogation. Id at 95-96. Further, the prosecutor argued that 

freedom while he was subject to interrogation. Id. To the contrary, the prosecutor argued that 

detention amounted to the functional equivalent of an arrest which physically deprived him of his 

argues that Officer Meissler did not explicitly inform him that he was free to leave and the alleged 

11/7/13 at 93-94. Defendant conceded that he was not in a police station or handcuffed. However, he 

because a reasonable person under those circumstances would not have felt free to leave. NT 

foregoing amounted to a custodial interrogation which triggered the necessity of Miranda warnings 

that he inflicted any injury to S, C • ,- At the motions hearing, defendant argued that the 

statement detailing his account of events on the day of the incident. However, he never mentioned 

about the incident in a non-threatening manner in a hospital family room. Defendant gave a 

Defendant remained on the same floor where/ s ~ c . 11was being treated and was questioned 

/ 

defendant, the father .of the victim, as part of a routine investigation of child abuse allegations. 

and gather the facts surrounding the incident. Officer Meissler arrived at the hospital and questioned 

Intensive Care Unit at CHOP and went to the hospital in order to conduct an informational interview 

In this case, Officer Meissler responded to a report of suspected abuse regarding a baby in the 

Commonwealth v. Turner, 772 A.2d 970, 973 (Pa. Super. 2001). 

The factors that the court considers to determine whether there has 

been a custodial interrogation include: the basis for the detention; its 

length; its location; whether the suspect was transported against his or 

her will, how far and why; whether restraints were used; whether the 

law enforcement officer showed, threatened or used force; and the 

investigative methods employed to confirm or dispel suspicions. 

Court has observed that: 

being interrogated reasonably believes his freedom of action is being restricted." Id The Superior 

Pa. 571, 577 (1983) (citations omitted). Simply put, "[t]he test focuses on whether the individual 
Commonwealth v. Samuel Cabrera 

defendant was not a suspect, and he was merely being questioned for investigative and fact gathering 

purposes. Id. 

In denying defendant's motion to suppress the statement, the motions court correctly 

reasoned that defendant's treatment was the same as any other witness during the early stages of an 

investigation. Id. at 97. The motions court held that even if the questioning escalated into an 

interrogation, defendant was not in custody. The motions court held that, under the totality of the 

circumstances, defendant cannot be said to have been in custody because the conditions and duration 

of the questioning never became so coercive as to constitute the functional equivalent of arrest. 

Moreover, in attempting to gather an accurate account of the facts, Officer Meissler had no reason to 

believe that the questions he asked were reasonably likely to elicit an incriminating response from 

defendant. See Commonwealth v. Fento, 363 Pa. Super. 488 (1987) (holding that police officer's 

questioning of driver as part of routine accident investigation while driver was being treated in 

hospital was not "custodial interrogation" requiring Miranda warnings). 

In sum, the motions court concluded that defendant was not subject to custodial interrogation 

for the following reasons: the length of the interview was not excessive, its location was a 

nonthreatening hospital family room, defendant was not coerced against his will, no restraints were 

used, Officer Meissler did not show, threaten or use force, and defendant was not a suspect at the 

time of the interview. Thus, defendant was not entitled to Miranda warnings. 

Defendant next challenges his formal written and video statement given to homicide 

detectives. Specifically, he claims "his formal written statement and video statement ... were taken 

subsequent to a non-mirandized verbal statement and [are] thus tainted." Statement of Errors ~c. 

This claim also lacks merit. Evidence is "fruit of the poisonous tree" and thus subject to suppression 

if the evidence comes to light by way of exploitation of the illegality and was generally inadmissible 

19 
Commonwealth v. Samuel Cabrera 

20 

The evidence at the motions hearing established that defendant was transported to the 

homicide unit on August 10, 2013 around 6:50 p.m. NT 11/7/2014 at 42, 54; NT 11/12/2014 at 

154-55. Detective William Sierra testified that after arrival, defendant was taken to an interview 

room where he was first orally advised of his Miranda rights from the standard police interrogation 

form and asked whether he wished to waive his rights. Id. Only after indicating that he wished to 

waive his rights did the interview commence. NT. 11/7/2014 at 55. Defendant subsequently gave his 

first explanation for/\ s . c. "s !,'injuries, and stated that the child was injured when defendant 

tripped on loose carpeting and dropped him twice.NT 11/7/2014at 55. Detective Sierra then replied 

"if that's your story, we'll take it, but we'll be able to prove scientifically and medically that's not 

how the injuries were sustained." NT 11/12/2014 at 157. 

Detective Sierra further testified that defendant was later given formal written Miranda 

warnings at 10: 19 p.m. During the issuance of these warnings Detective Sierra explained to 

defendant that they were going to discuss the death of three-month-old' 'S , C. f, and then read 

defendant his Miranda rights. N.T 11/7/2014 at 57-61. Defendant also read the warnings and waived 

them in writting before signing and dating the forms at 10:27 p.m. Id. Detective Sierra testified that 

each time defendant was issued Miranda rights, both oral and written, defendant stated that he fully 

understood his rights as they were explained to him and responded with identical answers. N. T 

11/7/2014 at 68. When defendant was asked "do you know who is personally responsible for the 

sudden death of your son?[,]" defendant stated, "[y]es, but it was an accident. I swung at my dog to 

at trial. Commonwealth v. Abbas, 862 A.2d 606, 610 (Pa. Super. 2004) (citing Commonwealth v. 

Brown, 700 A.2d 1310 (Pa.Super.1997); Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 

L.Ed.2d 441 (1963)). 
Commonwealth v. Samuel Cabrera 

21 

During the motions hearing, defendant conceded that he waived written Miranda warnings at 

approximately 10:30 p.m. but argued that despite Detective Sierra's testimony there isno evidence 

that he received oral Miranda warnings prior to making his first statement. N.T 11/7/13 at 99. 

Defendant now claims that his formal written statements were made only subsequent to a nonmirandized oral statement and as such are tainted. The prosecutor countered by pointing out that 

Detective Sierra's oral administration of Miranda warnings, which was actually memorialized in 

defendants formal statement, negates the contention that defendant was not given the first set of 

Miranda warnings. Id. at 91, 99-100. Awarding deference to tbe credibility determination of the 

motions court, which found Detective Sierra to be "completely 100% credible," this court agrees that 

it is not an unreasonable practice to give initial Miranda warnings orally. Commonwealth v. Hanible, 

836 A.2d 36, 40 (Pa. 2003) (finding that "credibility determinations are solely within the province of 

the fact-finder, and an appellate court may not reweigh the evidence and substitute its judgment for 

that of the finder of fact"). Thus, the record supports the motions court's finding that defendant was 

given Miranda warnings prior to both the informal oral interview and the subsequent formal written 

statement. Id at 100. 

Defendant alternatively claims that his waiver of the formal written Miranda rights was not 

voluntary. "The determination [of] whether an accused has knowingly and voluntarily waived his 

get him away from the baby and I hit my son in the side [twice] because the dog wasn't listening." 

N.T 11/7/2014 at 68. Significantly, at the conclusion of defendant's interview, after reviewing his 

statement and prior to signing the video statement consent form, when asked how he thought he was 

treated by the detectives, defendant responded "[flair, I could have been treated worse. Due to the 

circumstances, I was treated with respect and as a person, not for what was going on." N. T 

11/7/2014 at 71. 
Commonwealth v. Samuel Cabrera 

22 

constitutional rights depends on the facts of each particular case." Commonwealth v. Cohen, 53 A3d 

882, 886 (Pa. Super. 2012) (citations omitted). "It is [however] the Commonwealth's burden to 

establish whether a defendant knowingly and voluntarily waived his Miranda rights." Id at 885-86. 

"In order to do so, the Commonwealth must demonstrate that the proper warnings were given, and 

that the accused manifested an understanding of these warnings." Id. The Superior Court has held 

that a defendant has "explicitly waived his Miranda rights by clearly and unequivocally indicating 

that he understood his rights and then responding to the officer's questions." Id. ( emphasis added). 

"Our Supreme Court elaborated that an "explicit waiver" meant "an outward manifestation of a 

waiver such as an oral, written or physical manifestation." Id. For example, the Supreme Court has 

found that a defendant "sufficiently manifested the intent to waive his rights" where he ''twice stating 

he understood his Miranda rights after they were read to him, and answer[ed] questions 

immediately."Id (emphasis added). Likewise, our Supreme Court has also concluded that a 

"defendant sufficiently manifested his intent to waive his Miranda rights where those rights were 

read to him, he indicated one time that he understood them, and then he answered the questions 

asked by police." Id. (citing Commonwealth v. Baez, 21 A.3d 1280, 1282 (Pa. Super. 2011)) 

(emphasis added). Here, Detective Sierra testified that he read defendant his Miranda rights, after 

which defendant indicated that he understood those rights and agreed to answer the questions asked 

by the detective. Fully crediting Detective Sierra's testimony, the motions court found the absence of 

any "hint of involuntariness" in the issuance of both oral and written Miranda warnings. NT. 

11/7/2014 at 102. As the motions court noted, the above, coupled with viewing the video statement, 

eliminates any question as to whether defendant made a knowing and voluntary statement. Id. 

Indeed, during his Mirandized statement the defendant told "a story [ complete with demonstrations] 

that, frankly, he had a lot of time to concoct." Id. Under our Miranda precedents, defendant 
Commonwealth v. Samuel Cabrera 

23 

Next, defendant asserts that the prison tape was not relevant or probative "where [his] 

defense was that the act which led to the death of his son was not done with malice and thus did not 

rise to third degree murder." Statement of Errors j d. This claim lacks merit. 

On a challenge to a trial court's evidentiaryruling, [the Superior Court's] standard ofreview 

is one of deference." Commonwealth v. Herb, 852 A.2d 356, 363 (Pa. Super. 2004). "Thus the 

Superior Court's standard ofreview is very narrow; reversal may only occur upon a showing that the 

trial court clearly abused its discretion or committed an error of law." Id. "An abuse of discretion is 

not merely an error of judgment, but is rather the overriding or misapplication of the law, or the 

exercise of judgment that is manifestly unreasonable ... as shown by the evidence of record. 

Commonwealth v. Cameron, 780 A.2d 688, 692 (Pa. Super. 2001)." "The threshold inquiry with 

admission of evidence is whether the evidence is relevant." Commonwealth v. Stokes, 78 A.3d 644, 

654 (Pa. Super. 2013), appeal denied, 89 A.3d 661 (Pa. 2014). "Evidence is relevant if it logically 

tends to establish a material fact in the case, tends to make a fact at issue more or less probable, or 

supports a reasonable inference or presumption regarding the existence of a material fact." 

Commonwealth v. Spiewak, 533 Pa. 1, 8, 617 A.2d 696, 699 (1992). "In addition, evidence is only 

admissible where the probative value of the evidence outweighs its prejudicial impact." Stokes, 78 

A.3d at 654. "However, where the evidence is not relevant there is no need to determine whether the 

probative value of the evidence outweighs its prejudicial impact." Id. Under Pennsylvania law, 

generally, "[t]ape recordings are admissible in evidence when they are properly identified and are a 

true and correct reproduction of the statements made, and when the voices are properly identified." 

unequivocally manifested his intent to and did waive his Miranda rights. For the reasons discussed 

above, the findings of fact and conclusions of law made by the motions court are supported by the 

record. 
Commonwealth v. Samuel Cabrera 

A.W.V. the Commonwealth's motion to allow the video testimony of child witnessi' 

24 

overriding misapplication of the law or the exercise of judgment that is manifestly unreasonable, the 

motions court's evidentiary rulings must stand. 

C. Tender Years Hearsay Act 

Finally, defendant raises an evidentiary claim under the Tender Years Hearsay Act. 

Specifically, defendant claims that "[tjhe Motions Court erred and abused its discretion by granting 

alternative to zs , c .1 s 'fatal injuries far outweighed its prejudicial impact. Thus, absent 

Commonwealth v. Johnson, 450 Pa. 575, 578 (1973). "When properly identified as true and correct 

reproductions, and when the voices are properly identified, such tape recordings are admissible." 

Commonwealth v. Leamer, 449 Pa. 76, 82 (1972). 

Here, defendant does not challenge the authenticity of the prison tape, nor does he argue that 

he is not correctly identified as the declarant. Instead, defendant suggests that the prison tape, on 

which he concocted yet a third alternative explanation as to howP S. C - received his fatal 

injuries, was not relevant or probative because his "defense was that the act which led to the death of 

his son was not done with malice and thus did not rise to third degree murder." Certainly, the 

evidence in which defendant asserts that he did not actually inflict the injuries which led to 

s _ c , '.srdeath is relevant in that it logically tends to establish a material fact in the case, make a fact 

at issue more or less probable, or supports a reasonable inference or presumption regarding the 

existence of a material fact-the presence or absence of malice. As the motions court explained, the 

prison tape is unequivocally relevant and admissible because it "presents [defendant] coming up with 

still another explanation for how] s . c . '..s injuries] happened, which has nothing to do with 

anything that he said in the prior admissible statements." NT 11/7/2015 at 125. Finally, the motions 

court found that the probative value of the prison tape with defendant's fabrication of a third 
Commonwealth v. Samuel Cabrera 

25 

However, where a child under the age of 14 is called to testify as a 

witness, the trial court must make an independent determination of 

competency, which requires a finding that the witness possess (1) a 

capacity to communicate, including both an ability to understand 

questions and to frame and express intelligent answers; (2) the mental 

capacity to observe the actual occurrence and the capacity of 

sufficiently understand the duty to tell the truth." PA.R.Evm. 601(b). 

understood either directly or through an interpreter; (3) has an impaired memory; or (4) does not 

time, incapable of perceiving accurately; (2) is unable to express himself or herself so as to be 

if the Court determines that, because of ... immaturity, the person: "(l) is, or was, at any relevant 

to the Tender Years Hearsay Act). Under Rule 601(b), a person may be found incompetent to testify 

witness in order for the trial court to admit the child's out-of-court statements into evidence pursuant 

2014) ( citing PA. R.Evm. 601 (b)) (holding that a child need not be deemed competent to testify as a 

party to demonstrate that a witness is incompetent." Commonwealth v. Walter, 93 A.3d 442, 451 (Pa. 

"Generally, a witness is presumed competent to testify, and the burden falls on the objecting 

Curley, 910 A.2d 692, 697 (Pa. Super. 2006). 

evidence pursuant to the tender years statute absent an abuse of discretion." Commonwealth v. 

255 (Pa. Super. 2003). The Superior Court "will not reverse the trial court's decision to admit 

evidence lie within the sound discretion of the trial court." Commonwealth v. Lyons, 833 A.2d 245, 

Delbridge, 578 Pa. 641, 855 A.2d 27, 34 n. 8 (2003)). "Questions concerning the admissibility of 

discretion." Commonwealth v. Walter, 93 A.3d 442, 449 (Pa. 2014) (citing Commonwealth v. 

rulings on the admission of hearsay and determinations of witness competency, is abuse of 

"An appellate court's standard of review of a trial court's evidentiary rulings, including 

Years Hearsay Act." Statement of Errors 1 e. For the following reasons, this claim lacks merit. 

be shown at trial and admitted into evidence, as it failed to meet the reliability criteria of the Tender 
Commonwealth v. Samuel Cabrera 

26 

v. Cunningham-Small, 871 A.2d 231, 235 (Pa. Super. 2005). 

use of terminology unexpected of a child of similar age; and the lack of a motive to fabricate." Fidler 

"the spontaneity and consistent repetition of the statement(s); the mental state of the declarant; the 

factors a court may consider in determining reliability under§ 5985.1, including, but not limited to, 

making." Commonwealth v. O'Drain, 829 A.2d 316, 320 (Pa. Super. 2003). "There are several 

sufficient indicia of reliability, as determined from the time, content, and circumstances of its 

42 PA. CONS. STAT. ANN. § 5985.1 (West). "Any statement admitted under§ 5985.l must possess 

An out-of-court statement made by a child victim or witness, who at 

the time the statement was made was 12 years of age or younger, 

describing any of the offenses enumerated in 18 Pa.C.S. Chs. 25 

(relating to criminal homicide) ... not otherwise admissible by statute 

or rule of evidence, is admissible in evidence in any criminal or civil 

proceeding if: 

( 1) the court finds, in an in camera hearing, that the evidence 

is relevant and that the time, content and circumstances of the 

statement provide sufficient indicia ofreliability; and 

(2) the child either: 

(i) testifies at the proceeding; or 

(ii) is unavailable as a witness. 

in relevant part: 

The tender years exception is codified at 42 PA. CONS. STAT. ANN. § 5985.1 and provides 

who is testifying." Id 

trustworthiness surrounding the circumstances under which the statements were uttered to the person 

" [ t]he admissibility of this type of hearsay is determined by assessing the particularized guarantees of 

statements made by a child victim or witness to third parties." Id. Our Supreme Court has held that 

capacity to testify, the Tender Years Hearsay Act concerns the admissibility of out-of-court 

Walter, 93 A.3d at 451. "Unlike a determination of competency, which pertains to a witness's 

remembering what it is that he or she is called to testify about; and (3) 

a consciousness of the duty to speak the truth. 
Commonwealth v. Samuel Cabrera 

11 The motions court did however exclude portions of the child witness's testimony that referenced allegations ofabuse 

involving defendant and the witness's other younger siblings.NT 11 /l 0/2014 at 6. 

27 

statement on the video which mirrored A. W. V .1iih court testimony, the competent mental state of 

sufficient indicia ofreliability. Id. at 5-6. Based on the spontaneity and consistent repetition of the 

evidence was relevant and that the time, content and circumstances of the statement provided a 

statutory requirements.NT. 11/10/2014 at 5. The motions court found, and this court agrees that said 

however, found that the DVD of} A. \N, V;ii;interview and the evidence contained therein11 met the 

Statement of Errors ~ e. After reviewing the TYHA and relevant case law, the motions court 

shown at trial or admitted into evidence because it failed to meet the reliability criteria of the TYRA 

Defendant argues that the video of child witness(} A. W . V .. should not have been · 

observed the interview from another room on a closed circuit television. Id. at 105-106: 

appointed child advocate, assigned detective and a social worker from the children's alliance 

filmed only the children's alliance interviewer and the child witness, although the prosecutor, an 

Alliance on October 28, 2013, six months after the murder.NT. 11/7/2014 at 102-105. The video 

statement of then eight-year-old A. w, V. ; jbeing interviewed by the Philadelphia Children's 

In the this case, the Commonwealth sought to introduce into evidence a DVD of the 

Walter, 93 A.3d at 452-53. 

Thus, with respect to a child witness, one of the primary concerns 

Rule 601 is designed to address is a child's ability to perceive and 

remember events about which the child later testifies. Conversely, in 

determining whether out-of-court statements of a child contain 

"particularized guarantees of trustworthiness surrounding the 

circumstances under which the statements were uttered to the person 

who is testifying," Delbridge, 855 A.2d at 45, and, therefore, are 

admissible under the TYHA, the focus is on the truthfulness of the 

statements, which is assessed by considering the spontaneity of the 

statements; the consistency in repetition; the mental state of the child; 

the use of terms unexpected in children of that age; and the lack of a 

motive to fabricate. 
Commonwealth v. Samuel Cabrera 

28 

1 

SANDY L.V. BYRD, J. 

September 30, 2015 

BY THE COURT 

For the aforementioned reasons, this court's judgment of sentence should be AFFIRMED. 

V. CONCLUSION 

court under the TYHA. N. T. 11I13/2014 at 1- 7. 

fabricate, this court finds truthfulness in the statements which were properly admitted by the motions 

A. w. v. '., the use of terminology expected of a child of similar age, and the lack of a motive to 
Law Clerk's Signature 

Date: September 30, 2015 

fJ),( 

(x) First Class Mail ( ) Certified ( ) Personal Service 

Samuel N. Cabrera 

Inmate No. LW-0609 

SCI- Forest 

286 Woodland Drive 

P.O. Box 307 

Marienville, PA 16239-0307 

(x) First Class Mail ( ) Certified ( ) Personal Service 

Hugh J. Bums, Jr., Esquire 

Chief, Appeals Unit 

Philadelphia District Attorney's Office 

Three South Penn Square 

Philadelphia, PA 19107-3499 

(x) First Class Mail ( ) Certified ( ) Personal Service 

Isla A. Fruchter, Esquire 

Assistant Defender, Appeals Division 

Defender Association of Philadelphia 

1441 Sansom Street 

Philadelphia, PA 19102 

Type of Service: 

Defendant: 

Type of Service: 

District Attorney: 

Type of Service: 

Defense Counsel: 

I hereby certify that I am this day serving the foregoing Court Opinion upon the 

person(s), and in the manner indicated below, which service satisfies the requirements of 

PA. R. CRIM.PROC. 114: 

PROOF OF SERVICE 

CP-5l-CR-0009793-2013 

511 EDA 2015 

Commonwealth v. Samuel N. Cabrera 
cc: Hugh J. Burns, Jr., Esquire, Chief, Appeals Unit, District Attorney's Office 

Samuel N. Cabrera, Defendant 

Enclosure 

Sincerely, 

Enclosed herein please find a true and correct copy of the Court's Opinion in the 

above-captioned matter. 

Dear Ms. Fruchter: 

Re: Commonwealth v. Samuel N Cabrera, CP-5l-CR-0009793-2013 

511 EDA 2015 

Isla A. Fruchter, Esquire 

Assistant Defender, Appeals Division 

Defender Association of Philadelphia 

1441 Sansom Street 

Philadelphia, PA 19102 

September 30, 2015 

SEP 3 0 2015 

Criminal Appeals Unit 

First Judicia\ District of PA 

SANDY L.V. BYRD 

JUOOE 

THE JUSTICE JUANITA KIDD STOUT CENTER 

FOR CRIMINAL JUSTICE 

1301 FILBERT STREET, SUITE 1420 

PHILADELPHIA, PA 19107 

(215) 683-7157 

FAX: (215) 683-7159 

WEBSITE:HTTP://COURTS.PHILA.GOV FILED E-MAIL: SANDYLV .B YRD@COURTS. PHILA.GOV 

FIRST JUDICIAL DISTRICT OF PENNSYLVANIA 

COURT OF COMMON PLEAS 

JUDICIAL CHAMBERS 
cc: Natasha Lowe, Esquire, Appeals Unit 

Thank you for your courtesy in this matter. 

In regards to your notice of June I, 2015, please be advised that an opinion was filed in · 

the above-captioned case today. A copy of the opinion is enclosed. By this letter, I am requesting 

that the court administrator expedite return of these records to the Superior Court. 

Dear Ms. 'Eldrigel: 

RE: Commonwealth v. Samuel N. Cabrera, CP-51-CR-0009793-2013, 5Jl EDA 2015 

Lisa Eldrige 

Case Flow Manager 

Superior Court of Pennsylvania 

530 Walnut Street, Suite 315 

Philadelphia, PA 19106 

September 30, 2015 

THE JUSTICE JUANITA KIDD STOUT CENTER 

FOR CRIMINAL JUSTICE 

1301 FILBERT STREET, SUITE 1420 

PHILADELPHIA, PA 19107 

(215) 683-7]57 ' 

FAX: (215) 683-7159 

WEBSITB:HTTP://COURTS.PHILA.GOV 

E-MAIL: SANDYLV.BYRD@COURTS.PHlLA.GOV 

SANDY L.V. BYRD 

JUPGE 

FIRST JUDICIAL DISTRICT OF PENNSYLVANIA 

COURT OF COMMON PLEAS 

JUDICIAL CHAMBERS