COURT OF APPEALS OF VIRGINIA 

Present: Judges Coleman, Annunziata and Bumgardner 

Argued at Norfolk, Virginia 

REGINA LEA FRANK 

 MEMORANDUM OPINION* BY 

v. Record No. 0824-98-1 JUDGE SAM W. COLEMAN III 

 MAY 25, 1999 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK 

Junius P. Fulton, III, Judge 

Lenita J. Ellis for appellant. 

Marla Graff Decker, Assistant Attorney 

General (Mark L. Earley, Attorney General; 

Richard B. Smith, Assistant Attorney 

General, on brief), for appellee. 

 

 *Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, 

this opinion is not designated for publication. 

 Regina Lea Frank was convicted by bench trial of 

second-degree murder for the death of her two-month-old son, 

Zachary Frank. On appeal, Frank contends that the trial court 

erred in denying a motion to suppress her oral and written 

statements and that the evidence was insufficient to support the 

conviction. Finding no error, we affirm. 

I. BACKGROUND

 When an appeal challenges the sufficiency of the evidence or 

the denial of a suppression motion, we view the facts in the light 

most favorable to the prevailing party and grant to that party all 
reasonable inferences fairly deducible therefrom. See

Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 

537 (1975) (regarding sufficiency appeals); Commonwealth v. 

Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d 47, 48 (1991) 

(regarding suppression motion appeals). 

 On Monday, November 25, 1996, two-month-old Zachary Frank 

stopped breathing in his father’s arms. Mr. Frank attempted CPR 

while awaiting assistance. When paramedics responded, they found 

the baby unconscious and having agonal respirations of eight per 

minute. Paramedics attempted to intubate the child twice but 

failed. They noted that the airway was clear and then ventilated 

the baby with a bag valve mask. The baby responded and began to 

cry after which paramedics administered “blow by” oxygen. 

Zachary’s breathing returned to the normal range of about sixty 

breaths per minutes. The baby’s eyes were deviated, and he was 

posturing, or arching his back. When they arrived at the King’s 

Daughters Hospital, at 6:03 p.m., the baby’s color was restored, 

and he continued to breathe on his own. At the hospital, doctors 

administered meningitis antibiotics in accordance with hospital 

policy. 

 At trial, the Commonwealth called three medical expert 

witnesses who described the baby’s medical condition and opined 

that the cause of death was shaken baby syndrome. 

 Dr. Christopher Foley, a pediatric intensive care physician, 

treated Zachary for most of the baby’s time at the hospital. He 

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first examined Zachary between 9:30 and 10:00 p.m. the night he 

arrived. Dr. Foley testified that Zachary was critically ill, 

pale and mottled, had low blood pressure, was on heart medication 

and was on life support. A CT scan of Zachary’s head on November 

25, revealed subdural and subarachnoid hemorrhages,1 and loss of 

gray-white differentiation, indicating swelling of the brain. 

Upon further examination, Dr. Foley also discovered retinal 

hemorrhaging. 

 Doctors administered an EEG which indicated that Zachary’s 

brain had “suffered a global insult” that affected the vast 

majority of his brain. Despite administering phenobarbital 

medication, the child continued to experience seizures causing 

further injury to the brain. Zachary had signs and symptoms of 

brain death thirty-six to forty hours after arrival at the 

hospital. Ultimately doctors performed a “flow study” on 

Zachary’s brain revealing that the brain was receiving no blood 

flow, and he was clinically dead. On December 1, at 1:00 p.m., 

doctors pronounced him dead. 

 Dr. Donald Lewis, a pediatric neurologist at the King’s 

Daughters Hospital, assisted as a consultant for Zachary on the 

morning of November 26. Dr. Kinnison, an Assistant Chief Medical 

Examiner for the Commonwealth, performed an autopsy on Zachary. 

 1

Dr. Foley testified that subdural hemorrhaging refers to 

blood beneath the thick dura of the brain whereas subarachnoid 

hemorrhaging refers to blood directly against the brain. 

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All three experts opined that Zachary’s cause of death was shaken 

baby syndrome. Each acknowledged that establishing the time of 

injury was imprecise, but each testified that the injuries could 

have occurred seventy-two hours before the CT scan.2

 In addition to establishing that Zachary’s constellation of 

injuries was consistent with shaken baby syndrome, the experts 

also ruled out numerous other possibilities. The experts 

testified that neither aggressive CPR, lack of oxygen, meningitis, 

meningitis prophylactics, antibiotics, reflux, reflux medication, 

apnea, failed intubation attempts, phenobarbital, nor the 

cryprecipitate blood transfusions or any combination of these 

events would have caused the combination of symptoms that 

afflicted Zachary. According to Dr. Lewis, “there is no other 

explanation [than shaken baby syndrome] that causes this 

constellation of injuries.” 

 Prior to the incident, Zachary had been treated for reflux. 

Additionally, on Saturday, November 23, 1996, doctors at King’s 

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Dr. Foley testified that the CT scan showed the presence of 

old and new blood indicating two separate injuries, one of which 

would have occurred within approximately seventy-two hours and 

one of which would have occurred four or five days earlier. 

Lewis testified that the injuries would have occurred within 

twenty-four to seventy-two hours. Kinnison stated that the 

symptoms could appear anywhere from immediately after the injury 

to seventy-two hours after the injury. She also stated that 

injuries sometimes occur three, four, or even five days before 

the symptoms appear. All the witnesses agreed that a shaken 

baby sometimes shows no apparent signs of injury for three or 

more days. 

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Daughters’ outpatient clinic diagnosed Zachary with a viral 

infection but did not notice anything else unusual and did not 

prescribe any medication. Family members testified that on 

November 24 and 25, Zachary had cold symptoms but otherwise 

appeared normal. 

 Police Investigator Ingram first spoke to the defendant at 

the hospital on November 26, the day after Zachary’s admission to 

the hospital. Mrs. Frank had left the hospital and had slept for 

about four hours that evening, which she testified was about her 

normal amount of sleep. 

 At Ingram’s request, the Franks met with him at the police 

station at 3:12 p.m. on November 26. Ingram, Investigator 

Goldberg, and Child Protective Services worker Brent Ramey were 

present. Prior to interviewing Mrs. Frank, Ingram advised her of 

her rights. Mrs. Frank executed a Norfolk Police Department Legal 

Rights Advice Form PD-381. She was not restrained and did not 

appear intoxicated or under the influence of drugs. During the 

course of the interviews, the officers neither threatened Mrs. 

Frank, raised their voices, nor made any promises. 

 Initially, Mrs. Frank denied injuring her child and suggested 

that her daughter may have inflicted the injury. At 5:07 p.m., 

officers decided to interview Mr. Frank. Officers asked Mrs. 

Frank if she wanted to use the bathroom or if she needed a drink. 

After interviewing Mr. Frank, the investigators brought Mrs. Frank 

back into the interview room where she agreed to take a polygraph 

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test. At 6:50 p.m., prior to the polygraph, Regina Frank stated 

“If I did it, I don’t remember doing it.” At 7:13 p.m., she 

stated, without prompting, “How can you tell if I did it if I 

don’t remember doing it.” At 7:15 p.m., in reference to Friday 

evening, Frank stated 

 I was in a good mood all weekend but I 

was frustrated that I couldn’t help Zachary 

and that he was sick. My older daughter 

frustrated me by asking me if she could 

watch the same movie over and over again. I 

gave in and let her. Sometimes I raise my 

voice at my daughter and I almost struck her 

out of frustration. 

 At 7:16 p.m., she stated, “I sometimes take out my 

frustrations by cleaning up the house and throwing things at the 

wall but not at people.” Investigators Ingram and Goldberg made 

notes of these statements. 

 Between 7:19 and 8:20 p.m., Investigator Crank performed a 

polygraph examination on Mrs. Frank. After the examination, 

Ingram informed Mrs. Frank that the test indicated a ninety-nine 

percent probability of deception. At 8:34, Mrs. Frank stated: 

“Both kids were getting me upset and my older daughter wanted to 

watch the same movie over and over and I shook the swing and 

probably took him out and shook him. I lost control so much I can 

only remember some parts.” Upon departing the polygraph room, 

investigators offered Mrs. Frank a beverage. 

 Investigators again advised Mrs. Frank of her legal rights 

and thereafter obtained an eight minute taped statement. During 

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the statement, Mrs. Frank admitted to being frustrated at her 

daughter’s behavior and by Zachary’s crying. She admitted that on 

Friday, she shook the swing upon which Zachary sat. Ingram asked, 

“Didn’t you tell me you shook the swing violently?” She 

responded, “Yes sir.” When asked if her husband or anyone else 

shook the child she responded “No.” When asked, “How do you feel 

that he acquired these injuries,” she responded, “By me shaking 

him.” 

 A stenographer transcribed the tapes and at 11:05 p.m., 

investigators presented Mrs. Frank with the transcripts to review. 

She pointed out several errors which Ingram corrected, she added 

one phrase, and she signed every page. At 11:10 p.m., 

investigators arrested Mrs. Frank. 

 Prior to the polygraph, Ingram held a picture of Zachary up 

close to Mrs. Frank and he said, “Mommy, help me.” Ingram also 

asked Frank if she believed in God and when she responded in the 

affirmative, he said “well if you didn’t do this . . . can you 

invoke the Lord and tell him to help us find who [did this] and 

can you look God in the eyes . . . at judgment day . . . and tell 

him that [you] didn’t have anything to do with this.” Frank held 

her hands up in the air with her fists balled, and Ingram said 

“can’t you open your heart . . . . [H]olding your hand in a fist 

is an indication that your blocking something . . . . [L]et him 

in, call him out.” 

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II. ANALYSIS

A. SUPPRESSION MOTION

 In an appeal challenging a ruling on a motion to suppress, we 

consider the evidence in the record from both the suppression 

hearing and the trial. See Woodson v. Commonwealth, 25 Va. App. 

621, 625, 491 S.E.2d 743, 745 (1997). “While we are bound to 

review de novo the ultimate questions of law, we ‘review findings 

of historical fact only for clear error.’” Id. at 625, 491 S.E.2d 

at 745 (quoting Ornelas v. United States, 517 U.S. 690, 699 

(1996)). 

 Even when a suspect waives his or her Fifth and Sixth 

Amendment rights, a confession made involuntarily is inadmissible. 

See Morris v. Commonwealth, 17 Va. App. 575, 579, 439 S.E.2d 867, 

870 (1994). The voluntariness of a statement is “ultimately a 

legal rather than a factual question, but subsidiary factual 

questions are entitled to a presumption of correctness.” Williams 

v. Commonwealth, 234 Va. 168, 172, 360 S.E.2d 361, 364 (1987). 

Therefore, we determine whether the facts, viewed in the light 

most favorable to the Commonwealth, support the trial court’s 

legal conclusion that Regina Frank gave her statements 

voluntarily. 

 Based on the totality of the circumstances, Frank’s will was 

not “overborne,” nor was her “‘capacity for self-determination 

critically impaired.’” Thomas v. Commonwealth, 244 Va. 1, 15-16, 

419 S.E.2d 606, 614 (1992) (quoting Gray v. Commonwealth, 233 Va. 

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313, 324, 356 S.E.2d 157, 163 (1987)). Her statements were the 

“product of an essentially free and unconstrained choice.” Id. 

 In examining the totality of circumstances a court must 

consider a number of factors including age, intelligence, 

background and experience with the criminal justice system, the 

purpose and flagrancy of any police misconduct, the length of the 

interview, and moral and psychological pressures placed on an 

accused from authorities. See Morris, 17 Va. App. at 579, 439 

S.E.2d at 870. 

 Frank was twenty-nine years old. According to her testimony 

she had completed high school and later earned a nursing assistant 

certificate. A psychiatrist called by the defense testified that 

despite a below average IQ, Frank was competent at the time of the 

offense and that her memory was intact. The psychiatrist also 

testified that Frank showed signs of emotional blunting probably 

as a result of sexual abuse and chaos surrounding her life 

especially during puberty. 

 She had slept for four hours prior to the interrogation -- a 

normal amount for her -- and she was not under the influence of 

drugs or alcohol at the time of the interview. She “agreed 

willingly to” meet Ingram at the station, and she was not 

restrained in any way upon arrival. 

 Ingram advised Frank of her Miranda rights. Frank executed 

the advisory form and detectives again advised her of her rights 

prior to the taped statement. During the course of the entire 

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interview, Frank never invoked her right to silence or to have an 

attorney present. She never appeared confused or emotionally 

upset. From the time she arrived at the station house until the 

time she was arrested, eight hours elapsed. However, during that 

time she had numerous breaks, and investigators offered her 

multiple opportunities to use the restroom or obtain a beverage. 

Additionally, Frank made statements that justifiably raised the 

investigators’ suspicions less than four hours after her arrival 

at the station. 

 Frank argues that investigators used the polygraph as an 

instrument of coercion rendering her statements involuntary. The 

purpose of requiring that admitted statements be voluntary is to 

insure that “the admission or confession is trustworthy as 

testimony.” Owens v. Commonwealth, 186 Va. 689, 700, 43 S.E.2d 

895, 900 (1947); see Jones v. Commonwealth, 214 Va. 723, 726, 204 

S.E.2d 247, 249 (1974). Although the results of polygraph 

examinations are not admissible, we have not applied a similar per 

se prohibition to statements obtained before or after voluntary 

polygraph examinations. See e.g., id. at 727, 204 S.E.2d at 249 

(“We do not agree . . . that because polygraph testing is not 

admissible, any statement by defendant made to the polygraph 

operator in the pretesting conditioning period, or as a 

preliminary to the testing, should also be excluded.”). We find 

that the unreliability and inadmissibility of a polygraph 

examination as an investigative tool does not render substantive 

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statements per se involuntary. The same standards apply to 

confessions obtained with the use of a polygraph examination as 

apply to other confessions. See Jenner v. Smith, 982 F.2d 329, 

334 (8th Cir 1993); Bae v. Peters, 950 F.2d 469, 475 (7th Cir. 

1991); J. Smith, Admissibility in evidence of confession made by 

accused in anticipation of, during, or following polygraph 

examination, 89 A.L.R.3d 230, 233-34 (1979). 

 Here, Ingram explained to Frank that the results of polygraph 

tests are generally not admissible in court and that she had a 

right to refuse the test. Frank agreed to take the test and never 

stated that she did not wish to do so. Undoubtedly, telling Frank 

that she “failed” the test had an impact on her willingness to 

speak, but nothing about its effect on Frank raises a concern 

about the reliability or voluntariness of her statement. There is 

simply no evidence that the polygraph exam coerced Frank’s 

statement. 

 Similarly, the investigators’ use of religion as an 

investigative tool does not render Frank’s statement involuntary. 

See Rodgers v. Commonwealth, 227 Va. 605, 615, 318 S.E.2d 298, 

303-04 (1984). We find that based on the totality of the 

circumstances, including an assessment of Frank’s background and 

psychological condition, and having considered all the 

investigative tools employed, Frank’s statements were voluntary 

and reliable. 

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 Frank also contends that alleged oral and written statements 

attributed to her were unreliable. The three individuals present 

at the interview reported substantially similar statements, and 

Frank reviewed and corrected her recorded statement. Furthermore, 

on appeal, we defer to the fact finder’s assessment of the 

credibility of evidence. See Schneider v. Commonwealth, 230 Va. 

379, 382, 337 S.E.2d 735, 736-37 (1985). Accordingly, the trial 

court did not err in admitting and accepting the statements. 

B. SUFFICIENCY OF THE EVIDENCE

1. Standard of Review

 Frank challenges the sufficiency of the evidence to support 

her conviction. She contends the evidence was insufficient to 

show that the cause of Zachary’s death was homicide. Frank claims 

that even if the cause of death was homicide, there was 

insufficient evidence to establish that she was the criminal 

agent. Finally, she claims that even if she was the cause of 

death, there was insufficient evidence to establish the element of 

malice. 

 As stated earlier, we view the evidence in the light most 

favorable to the Commonwealth and grant to the Commonwealth all 

reasonable inferences fairly deducible therefrom. See

Higginbotham, 216 Va. at 352, 218 S.E.2d at 537. We discard any 

evidence of the accused in conflict with the Commonwealth’s 

evidence, and we regard all the Commonwealth’s credible evidence 

as true. See Boblett v. Commonwealth, 10 Va. App. 640, 651, 396 

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S.E.2d 131, 137 (1990). Furthermore, circumstantial evidence is 

as competent and entitled to as much weight as direct evidence on 

appeal. See Coleman v. Commonwealth, 226 Va. 31, 53, 307 S.E.2d 

864, 876 (1983). 

 Finally, as the appellant points out, in a wholly 

circumstantial case, the evidence must exclude every reasonable 

hypothesis of innocence. However, the Commonwealth need not 

exclude every possible theory of innocence, rather it must 

exclude only those which flow reasonably from the facts and 

raise a reasonable doubt of guilt. See Payne v. Commonwealth, 

216 Va. 265, 272, 217 S.E.2d 870, 875 (1975). Whether a 

particular hypothesis is reasonable, is a question of fact 

binding on appeal unless plainly wrong. See Lovelace v. 

Commonwealth, 27 Va. App. 575, 586, 500 S.E.2d 267, 273 (1998). 

 Moreover, the Commonwealth need not actively negate every 

reasonable theory of innocence, instead it is sufficient if the 

evidence as presented has the effect of excluding those 

theories. See Orange v. Commonwealth, 191 Va. 423, 443, 61 

S.E.2d 267, 276 (1950). If, based on the Commonwealth’s 

evidence, the fact finder justifiably could have excluded all 

reasonable hypotheses of innocence, or determined that any 

possible hypothesis of innocence was less than reasonable, then 

we must affirm. We defer to the fact finder because the 

inferences to be drawn from proven facts are the province of the 

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fact finder so long as they are reasonable and justified. See

Higginbotham, 216 Va. at 353, 218 S.E.2d at 537. 

 When the appellant presents an hypothesis of innocence on 

appeal, the burden is on the appellant to show that the facts as 

found by the fact finder do not exclude a reasonable theory that 

is consistent with the defendant’s innocence. See generally

Johnson v. Commonwealth, 12 Va. App. 391, 396, 404 S.E.2d 384, 

387 (1991) (“The burden is on the party who alleges reversible 

error to show by the record that reversal is the remedy to which 

he is entitled.”). It is in this context that the Virginia 

Supreme Court has said that the hypotheses which the 

Commonwealth must exclude are those that actually flow from the 

evidence rather than those that merely arise from the 

imagination of the appellant. See e.g., Black v. Commonwealth, 

222 Va. 838, 841, 284 S.E.2d 608, 609 (1981). Thus, to prevail, 

appellant must show that the facts as established in the record, 

viewed in the light most favorable to the Commonwealth, do not 

exclude a reasonable hypothesis that would render the appellant 

innocent. 

2. Cause of Death

 Drs. Foley, Lewis, and Kinnison each testified that Zachary 

Frank exhibited the unique constellation of physiological 

conditions indicating shaken baby syndrome. Each doctor further 

testified that the combination of symptoms combined with the 

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complete absence of external trauma could only be consistent with 

shaken baby syndrome which Dr. Lewis described as 

the phenomena that occurs when a baby, 

usually a small child because of the weight 

involved, is vigorously shaken to and from 

in such a fashion that the blood vessels 

which are surrounding the brain are sheered. 

It causes a great deal of bleeding around 

the brain and with sufficient force tears 

the inside lining of the retina of the eye. 

 Frank argues that the doctors’ opinions are unreliable 

because they were based on a mistaken understanding of the 

history. However, Frank fails to point out any particular 

mistaken understandings and, in any event, the medical experts 

based their opinions on the results of direct examinations rather 

than on the child’s history. 

 Frank also argues that the Commonwealth failed to exclude all 

reasonable hypotheses of innocence. She suggests that the medical 

experts did not rule out other causes of death. We disagree. The 

evidence of the medial experts in conjunction with Frank’s 

admission was sufficient to permit the fact finder to exclude 

every other hypothesis of death that flows reasonably from the 

evidence. The experts ruled out every hypothesis that Frank 

suggested at trial. On appeal, Frank seems to suggest that while 

none of the hypotheses of injury suggested at trial could account 

for the constellation of symptoms Zachary exhibited, an 

aggregation of these causes could have resulted in the symptoms. 

Thus, if the child had meningitis, if the doctors administered too 

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much phenobarbital, and if the emergency personnel or the father 

subjected the child to overly aggressive CPR, it was possible that 

similar symptoms could have appeared. However, expert testimony 

indicated that research only theorized that aggressive CPR could 

cause retinal hemorrhaging. Additionally, there was no evidence 

that the child received too much phenobarbital. Finally, Dr. 

Lewis testified that Zachary was only treated for meningitis as a 

matter of hospital routine procedure -- when acutely ill children 

are admitted they are routinely treated for meningitis. 

Therefore, in view of the aforementioned standards of review, the 

evidence excluded all hypotheses of death other than shaken baby 

syndrome. 

3. Criminal Agency

 Frank argues that the evidence was not sufficient to show 

that she caused the fatal injury. Frank points out that the 

Commonwealth called no witnesses who had direct knowledge of the 

three or four hour period after the paramedics delivered Zachary 

to the hospital and before Dr. Foley’s first examination. Frank 

appears to argue that even if Zachary died from shaken baby 

syndrome, the evidence does not exclude every reasonable 

hypothesis of innocence because the Commonwealth has not credibly 

established the events that transpired during that three or four 

hour period. We disagree. 

 Frank admitted that she was the criminal agent. Thus, the 

evidence proved that she was the criminal agent and this evidence 

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excluded every reasonable hypothesis of innocence. Frank admitted 

that out of frustration she shook the baby on Friday, November 22, 

1996. When asked, Frank also stated that no one else had shaken 

the baby. The baby was admitted to the hospital on Monday, 

November 25, 1996 -- roughly seventy-two hours later. All three 

medical experts testified that it would be normal for symptoms to 

appear around seventy-two hours after the injury. There is no 

evidence that supports an hypothesis that a hospital worker, or 

some unknown agent, caused the shaken baby syndrome injuries 

during the three or four hour period after Zachary’s admission, 

and conversely, there is ample evidence that Frank was the 

criminal agent. See e.g., Webber v. Commonwealth, 26 Va. App. 

549, 561-65, 496 S.E.2d 83, 88-90 (1998) (finding evidence that 

the defendant shook and slapped a baby in combination with medical 

evidence of causation and timing sufficient to convict defendant 

of second degree murder). 

4. Malice

 Finally, Frank argues that even if the trial court did not 

err by finding that Frank caused the injury and death, there was 

insufficient evidence for the trial court to find malice, and, 

therefore, the Commonwealth did not sustain its burden of proving 

second degree murder. 

 To convict Frank of second degree murder, the Commonwealth 

had to prove malice aforethought. See Perricllia v. Commonwealth, 

229 Va. 85, 91, 326 S.E.2d 679, 683 (1985). Whether Frank acted 

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with malice is a question for the fact finder. See Essex v. 

Commonwealth, 228 Va. 273, 280, 322 S.E.2d 216, 220 (1984). 

Malice may be implied from conduct, for example, when a purposeful 

and cruel act is committed against another without any or with 

only slight provocation. See Pugh v. Commonwealth, 223 Va. 663, 

668, 292 S.E.2d 339, 341 (1982). Frank cites language in Essex

for the proposition that when an act is committed out of 

negligence, malice may not be implied. See Essex, 228 Va. at 280, 

322 S.E.2d at 220. 

[A] common theme running through 

[definitions of malice] is a requirement 

that a wrongful act be done willfully or 

purposefully. This requirement of 

volitional action is inconsistent with 

inadvertence. Thus if a killing results 

from negligence, however gross or culpable, 

and the killing is contrary to the 

defendant’s intention, malice cannot be 

implied. 

Id. (internal quotation marks and citations omitted). Here, 

however, the evidence shows that Frank willfully and 

deliberately shook Zachary Frank. 

 “Implied malice may be inferred from conduct likely to 

cause death or great bodily harm, willfully or purposefully 

undertaken.” See Canipe v. Commonwealth, 25 Va. App. 629, 642, 

491 S.E.2d 747, 753 (1997) (quotation marks and citation 

omitted). Moreover, the fact finder may infer that a person 

intends the natural and probable consequences of his actions. 

See Campbell v. Commonwealth, 12 Va. App. 476, 484, 405 S.E.2d 

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1, 4 (1991) (en banc). Additionally, “the comparative 

weaknesses of the victim and the strength of the aggressor may 

be considered” in determining the probable consequences of an 

aggressor’s acts. Id. at 485, 405 S.E.2d at 5. 

 Experts testified that the injury that Frank inflicted 

required Zachary’s head to go violently forward and backward and 

that the only comparable injury they encounter occurs when 

children are thrown from motor vehicle accidents. Because of 

the extreme violence required to cause the injury, and because 

Frank admitted that she willfully and violently shook the baby, 

the trial court was entitled to infer malice. 

III. CONCLUSION

 We find that based on the totality of the circumstances 

surrounding the interrogation, Mrs. Frank’s will was not 

overborne, nor was her capacity for self-determination critically 

impaired. Therefore, the trial court did not err in refusing to 

suppress her statements. Additionally, we find that the 

Commonwealth produced sufficient evidence to establish that 

Zachary Frank died of shaken baby syndrome and that it was Mrs. 

Frank’s conduct that caused the fatal injuries. Finally, we find 

that the trial court did not err in inferring implied malice from 

Mrs. Frank’s willful and violent shaking of the infant. 

Accordingly, we affirm the trial court’s decision. 

Affirmed.

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