COURT OF APPEALS OF VIRGINIA

Present: Judges Coleman, Annunzia ta and Bumgardner Argued at Norf olk, 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. Fult on, 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,

his opinion is not designated for publication. t Regina Lea Frank was conv icted by bench trial of second-degree mu rder for the death of her two-mont h-old son, Zachary Frank. On appeal, Frank contends that the trial court erred in denying a mo tion to suppress he r oral and written statements and that th e evidence was insuffic ient to su pport the conviction. Finding no error, we affirm. I. BACKGROUND When an appeal chal lenges the sufficiency of the evidence or the denial of a suppression mo tion, we view the facts in the light most favorable to the prevailing party and gr ant to that party allreasonable inferences fair ly 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 suppressio n motion appeals). On Monday, November 25, 1996, two-mont h-old Zachary Frank stopped breath ing in his father’s arms. Mr. Frank at tempted CPR while awaiting assistan ce. When para medics responde d, they found the baby unconscious an d having agonal respir ations of eight per minute. Paramedics attempted to intubate the child twice but failed. They noted th at the airway was clea r and then ventilated the baby with a bag va lve mask. The baby re sponded and began to cry after which paramedics administered “blow by” oxygen. Zachary’s brea thing returned to the normal rang e of about sixty breaths per minute s. The baby’s eyes were deviat ed, and he was posturing, or ar ching his back. When they arrive d at the King’s Daughters Hosp ital, at 6:03 p. m., the baby’s co lor was restored, and he continued to br eathe on his own. At the hospit al, doctors administered meningitis antibiotics in accord ance with hospital policy. At trial, the Comm onwealth called th ree medica l expert witnesses who desc ribed the baby’s medica l condition and opined that the cause of death wa s shaken baby syndrome. Dr. Christopher Foley, a pediatric inte nsive care physician, treated Zachary fo r most of the ba by’s time at th e hospital. He

- 2 -first examined Zachary between 9:30 and 10:0 0 p.m. the night he arrived. Dr. Fo ley testified that Zachary was cr itically ill, pale and mottled, had low blood pressu re, was on hear t medication and was on life su pport. A CT scan of Zachary’s he ad on November 25, revealed subd ural and subarach noid hemorrhages, 1 and loss of gray-white differentiat ion, indicating swelli ng of the brain. Upon further examinat ion, Dr. Foley also discovered retinal hemorrhaging. Doctors admini stered an EEG which indicated that Zachary’s brain had “suffe red a global insult” th at affected the vast majority of hi s brain. Desp ite administering phenobarbital medication, the ch ild continued to experi ence seizures causing further injury to the brain. Za chary had signs an d symptoms of brain death thir ty-six to fort y hours after ar rival at the hospital. Ultimately doctors perf ormed a “flow study” on Zachary’s brain re vealing that the brain was receivin g no blood flow, and he was clinic ally dead. On Decemb er 1, at 1:00 p.m., doctors pronounc ed him dead. Dr. Donald Lewis, a pediatric ne urologist at the King’s Daughters Hosp ital, assisted as a consultant fo r Zachary on the morning of November 26 . Dr. Kinnison , an Assistant Chief Medical Examiner for the Common wealth, performe d 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.

- 3 -All three experts opined that Zach ary’s cause of de ath was shaken baby syndrome. Each acknowledged th at establishing the time of injury was imprecise, but each testified that the injuries could have occurred seve nty-two hours befo re the CT scan. 2 In addition to esta blishing that Zachar y’s constell ation of injuries was consistent with shaken baby syndrome, th e experts also ruled out numero us other possibilit ies. Th e experts testified that neither aggressive CPR, lack of oxyg en, meningitis, meningitis prophylactic s, antibiotics, reflux , reflux medication, apnea, failed intuba tion attempts, phen obarbital, nor the cryprecipitate blood transfusions or any combin ation of these events would have caused the combination of symptoms that afflicted Zach ary. According to Dr. Lewis, “t here is no other explanation [tha n shaken baby syndrome] that causes this constellation of injuries.” Prior to the incide nt, Zachary had been treated for reflux. Additionally, on Saturday, Nove mber 23, 1996, do ctors at King’s

2 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.

- 4 -Daughters’ outpatient clinic diagnosed Za chary with a viral infection but did not notice anything el se unusual and did not prescribe any me dication. Family memb ers testifie d that on November 24 an d 25, Zachary ha d cold symptoms but otherwise appeared normal. Police Investigator Ingram fi rst spoke to th e defendant at the hospital on November 26, the day afte r Zachary’s ad mission to the hospital. Mrs. Fr ank had left the hospit al and had slept for about four hours that evening, which she te stified 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, Inve stigator Goldberg, and Chil d Protective Services wo rker Brent Ramey were present. Prior to interviewing Mrs. Frank, Ingram advised her of her rights. Mrs. Fran k executed a Norfolk Po lice Department Legal Rights Advice Form PD -381. She was not re strained and did not appear intoxicated or under the influe nce of drugs. During the course of the in terviews, the offi cers neither th reatened Mrs. Frank, raised th eir voices, nor ma de any promises. Initially, Mrs. Fran k denied injuring he r child and suggested that her daughter may have inflicted the inju ry. At 5:07 p.m., officers decided to in terview Mr. Fran k. Officers asked Mrs. Frank if she wanted to use the bathroom or if she needed a drink. After intervie wing Mr. Frank, the invest igators brough t Mrs. Frank back into the in terview room where she agre ed to take a polygraph

- 5 -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 pr ompting, “How ca n 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., sh e stated, “I someti mes take out my frustrations by cleaning up the house and throwing things at the wall but not at people .” Investigat ors Ingram and Goldberg made notes of these statements. Between 7:19 and 8: 20 p.m., Inve stigator Crank performed a polygraph exam ination on Mrs. Frank. After th e examination, Ingram informed Mrs. Frank that the test in dicated a ni nety-nine percent probab ility of deception. At 8:34, Mrs. Frank stated: “Both kids were getting me upset and my ol der 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 contro l so much I can only remember some pa rts.” Upon departin g the polygr aph room, investigators of fered Mrs. Fran k a beverage. Investigators again advised Mr s. Frank of he r legal rights and thereafter obtained an eight minute tape d statement. During

- 6 -the statement, Mr s. Frank admitted to being frus trated at her daughter’s behavior and by Zachary’s cr ying. She admi tted that on Friday, she shook the swing upon which Zachar y sat. Ingram asked, “Didn’t you tell me you shook the sw ing violentl y?” She responded, “Yes sir.” When asked if her husband or anyone else shook the child sh e responded “No.” When asked, “H ow do you feel that he acquired thes e injuries,” she respon ded, “By me shaking him.” A stenographer transcribed the tapes and at 11:05 p.m., investigators pr esented Mrs. Frank with th e transcripts to review. She pointed out se veral errors which Ingram corrected, she added one phrase, and she signed every page . At 11:10 p.m., investigator s arrested Mrs. Frank. Prior to the polygraph, Ingram held a picture of Zachary up close to Mrs. Frank an d he said, “Mom my, help me.” Ingram also asked Frank if she beli eved in God an d when she resp onded in the affirmative, he said “well if you didn’t do this . . . can you invoke the Lord and te ll him to help us fi nd who [did this] and can you look God in th e eyes . . . at judgme nt 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 ba lled, and In gram said “can’t you open your heart . . . . [H ]olding your ha nd in a fist is an indication that your blocking someth ing . . . . [L]et him in, call him out.”

- 7 -II. ANALYSIS A. SUPPRE SSION MOTION In an appeal challe nging a ruling on a motion to suppress, we consider the evidence in the record from both the suppression hearing and th e 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 ‘rev iew findings of historical fact only for clear error.’” Id. at 625, 491 S.E.2d at 745 (quoting Ornelas v. Un ited States , 517 U.S. 690, 699 (1996)). Even when a susp ect waives his or her Fifth and Sixth Amendment rights , a confession made involuntarily is inadmissible. See Morris v. Commonwealth , 17 Va. App. 575, 57 9, 439 S.E.2d 867, 870 (1994). The volu ntariness of a statem ent is “ultimately a legal rather than a factual questi on, but subsid iary factual questions are en titled to a pr esumption of correctness.” Williams v. Commonwealth , 234 Va. 168, 17 2, 360 S.E.2d 36 1, 364 (1987). Therefore, we de termine whether th e facts, viewed in the light most favorable to th e Commonwealth , support the trial court’s legal conclusion that Regina Frank gave her statements voluntarily. Based on the totality of the circum stances, Frank’s will was not “overborne,” nor was her “‘ca pacity for self -determination critically impaired.’” Thomas v. Commonwealth , 244 Va. 1, 15-16, 419 S.E.2d 606, 61 4 (1992) (quoting Gray v. Co mmonwealth , 233 Va. - 8 -313, 324, 356 S.E.2d 157, 163 (1987)). Her stat ements were the “product of an esse ntially free and unco nstrained ch oice.” Id. In examining the to tality of circumst ances a court must consider a number of factors incl uding age, intelligence, background and experien ce with the criminal justice sy stem, the purpose and flagra ncy of any police miscon duct, the leng th of the interview, and moral and psychologica l pressures pl aced 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 ea rned a nursin g assistant certificate. A psychiatrist call ed by the defens e testified that despite a below average IQ, Frank wa s competent at th e time of the offense and that her memory was intact. The psychiat rist also testified that Frank sh owed signs of emotiona l blunting probably as a result of sexu al abuse and chaos su rrounding her life especially duri ng puberty. She had slept for fo ur hours prior to th e interrogat ion -- a normal amount for her -- and she was not un der the infl uence of drugs or alcohol at the time of th e interview. She “agreed willingly to” me et Ingram at the stat ion, and she was not restrained in any way upon arrival. Ingram advise d Frank of her Miranda rights. Frank executed the advisory form and detectives again ad vised her of her rights prior to the taped stat ement. During the co urse of the entire

- 9 -interview, Frank never invoked her righ t to silence or to have an attorney present. Sh e never appeared confused or emotionally upset. From the time she arrived at the st ation house until the time she was arrested, eight hours elap sed. However, during that time she had numerous breaks, and invest igators offered her multiple opportunities to use the restroom or obtain a beverage. Additionally, Frank made statements that justifiably raised the investigators’ suspicio ns less than four ho urs after he r arrival at the station. Frank argues that investigators used the poly graph as an instrument of co ercion rendering her statements in voluntary. The purpose of requiring th at admitted statements be voluntary is to insure that “the ad mission or confession is trustworthy as testimony.” Owens v. Commonwealth , 186 Va. 689, 70 0, 43 S.E.2d 895, 900 (1947); see Jones v. Commonwealth , 214 Va. 723, 726, 204 S.E.2d 247, 249 (197 4). Although the re sults of polygraph examinations are not admissible, we have not applied a similar per

se prohibition to statem ents obtained before or after voluntary polygraph exam inations. See e.g. , id. at 727, 204 S.E.2d at 249 (“We do not agre e . . . that because po lygraph test ing is not admissible, any statement by defendant made to th e polygraph operator in th e pretesting conditioni ng period, or as a preliminary to the testin g, should also be ex cluded.”). We find that the unreliabil ity and inadmi ssibility of a polygraph examination as an investigative to ol does not rend er substantive

- 10 -statements per se involuntary. The same stan dards apply to confessions ob tained with the use of a polygrap h 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 co nfession made by accused in anticipation of, du ring, or follow ing polygraph examination , 89 A.L.R.3d 230, 233-34 (1979). Here, Ingram explaine d to Frank that the results of polygraph tests are generall y not admissible in court and that she had a right to refuse the test . Frank agreed to ta ke the test and never stated that she di d not wish to do so. Un doubtedly, telling Frank that she “failed” the test had an impact on her willingness to speak, but nothing ab out its effect on Fr ank raises a concern about the reliabil ity or voluntarin ess of her statem ent. There is simply no evidence that the polygraph exam coerced Frank’s

statement. Similarly, the investigator s’ use of religion as an investigative to ol does not render Frank’ s statement in voluntary. 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, includin g an assessment of Fr ank’s backgr ound and psychological co ndition, and having considered all the investigative tools employed, Frank’s statem ents were voluntary and reliable.

- 11 -Frank also contends that alleged oral an d written st atements attributed to he r were unreliable. The three individu als present at the interview repo rted substantially si milar statem ents, and Frank reviewed and corr ected her record ed 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 er r in admitting and accepting th e statements. B. SUFFICIENCY OF THE EVIDENCE 1. Standard of Review Frank challenges th e sufficiency of the evidence to support her conviction. She contends the evidence was insuff icient to show that the cause of Zachary’s deat h 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 wa s the cause of death, there was insuff icient evidence to es tablish the element of malice. As stated earlier, we view the evidence in the light most favorable to the Common wealth and grant to the Commonwe alth all reasonable inferences fair ly deducible therefrom. See Higginbotham , 216 Va. at 352, 218 S.E.2d at 537. We discard any evidence of the accused in conflict wi th the Comm onwealth’s evidence, and we regard all the Common wealth’s credib le evidence

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

- 12 -S.E.2d 131, 137 (1990). Furthermore, circ umstantial evidence is as competent and en titled to as much weight as dire ct evidence on appeal. See Coleman v. Commonwealth , 226 Va. 31, 53 , 307 S.E.2d 864, 876 (1983). Finally, as the appellant poin ts out, in a wholly circumstantial case, the evidence must exclude ev ery 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

- 13 -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 te stified that Zachary Frank exhibited the unique constellat ion of physiological conditions indicating shaken baby syndrome. Each doctor further testified that the co mbination of symptoms combined with the

- 14 -complete absence of exte rnal trauma could only be consistent with shaken baby synd rome 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’ opinio ns are unreliable because they were ba sed on a mistaken un derstanding of the history. Howe ver, Frank fails to po int out any particular mistaken understandings and, in any event, the medica l experts based their opinio ns on the results of direct exam inations rather than on the chil d’s history. Frank also argues th at the Commonwe alth failed to exclude all reasonable hypotheses of innocence. She suggests th at the medical experts did not rule out other caus es of death. We disagree. The evidence of th e medial experts in co njunction with Frank’s admission was suff icient to permit the fa ct finder to exclude every other hypoth esis of death th at flows reason ably from the evidence. The expert s ruled out ev ery hypothesis that Frank suggested at trial. On appeal, Fran k seems to suggest that while none of the hypo theses of injury suggeste d at trial co uld account for the constell ation of symptoms Za chary exhibi ted, an aggregation of these ca uses could have result ed in the symptoms. Thus, if the child had meningitis, if the doct ors administ ered too

- 15 -much phenobarbital, an d if the emerge ncy personnel or the father subjected the ch ild to overly aggr essive CPR, it wa s possible that similar sympto ms could have appeared. However, expe rt testimony indicated that research only theorize d that aggressive CPR could cause retinal hemo rrhaging. Additionally, there was no evidence that the child received too much phenobarbi tal. Finally, Dr. Lewis testified th at Zachary was on ly treated for me ningitis as a matter of hospit al routine proced ure -- when acut ely ill children are admitted they are routinely treated for me ningitis. Therefore, in vi ew of the aforem entioned standard s 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 pe riod after the paramedi cs delivere d Zachary to the hospital and be fore Dr. Foley’s first examination. Frank appears to argue that even if Zachary died from shaken baby syndrome, the ev idence does not excl ude every re asonable hypothesis of in nocence because th e Commonwealth has not credibly established the ev ents 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 crim inal agent and this evidence

- 16 -excluded every reasonable hypothesis of innocence. Frank admitted that out of frustratio n she shook the baby on Friday , November 22, 1996. When asked, Fran k 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 te stified that it would be normal for symptoms to appear around seventy- two hours after the injury. There is no evidence that supports an hypoth esis that a hosp ital worker, or some unknown agent, caused the shaken baby syndrome injuries during the three or fo ur hour period after Zachary’s ad mission, 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) (fin ding evidence that the defendant shoo k and slapped a ba by in combinatio n with medical evidence of caus ation and timing sufficie nt to convic t defendant of second degree murder). 4. Malice Finally, Frank argues that ev en if the tria l court did not err by finding that Fr ank caused the injury and death, there was insufficient evidence for the trial co urt to find malice, and, therefore, the Commonwe alth did not sustain it s burden of proving second degree murder. To convict Frank of second degree murd er, the Comm onwealth had to prove malice aforethought. See Perricllia v. Commonwealth , 229 Va. 85, 91, 32 6 S.E.2d 679, 68 3 (1985). Whet her Frank acted

- 17 -with malice is a question for th e fact finder. See Essex v. Commonwealth , 228 Va. 273, 28 0, 322 S.E.2d 21 6, 220 (1984). Malice may be impl ied from conduct, for exam ple, when a purposeful and cruel act is committed agains t another withou t any or with only slight pr ovocation. See Pugh v. Co mmonwealth , 223 Va. 663, 668, 292 S.E.2d 339, 341 (1982). Frank cites language in Essex for the proposit ion that when an act is committed out of negligence, mali ce 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

- 18 -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-deter mination critically impaired. Therefore, the trial court did not err in refusing to suppress her statemen ts. Additionally, we find that the Commonwealth produced sufficient evidence to establ ish that Zachary Frank died of shaken baby syndrome and th at it was Mrs. Frank’s conduct th at caused the fa tal injuries. Fi nally, we find that the trial court di d not err in inferring implied malice from Mrs. Frank’s willfu l and violent shaking of the infant. Accordingly, we affirm the trial court’s decision. Affirmed.

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