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

v.

BRIAN LEROY WAGNER

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

PENNSYLVANIA

No. 1397 MDA 2021 Appeal from the Judgment of Sentence Entered August 3, 2021 In the Court of Common Pleas of Cumberland County Criminal Division at No(s): CP

- 21

- CR

- 0000502

- 2018

BEFORE: PANELLA, P.J., BENDER, P.J.E., and NICHOLS, J. MEMORANDUM BY PANELLA, P.J.: FILED: FEBRUARY 7, 2023
Brian Leroy Wagner (“ Wagner”) appe als from the judgment of sentence entered after the trial court convicted him of Criminal Homi cide

- Murder of the Third Degree, Aggravated Assault, and Endangering the Welfare of Children

– Parent or Guardian. The char ges arose from allegations that , on July 6, 2017, Wagner caused the death of his four

- month

- old son, Finnick Wagner (“Finnick”) , who was brought to the hospital unresponsive and later died. The key evidence at trial weighed the expert testimony of the Commonwealth , which argued the child died from physical injuries to the head and spine, against the expert testimony presented by Wagner’s defense, which argued that the child died from sepsis and a blood clotting disorder. Wagner raises several claims on appeal: the evidence was not sufficient for the conviction of third

- degree murder and aggravated assault ; the verdictJ

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was against the w eight of the evidence ; and the trial court erred by permitting the Commonwealth to introduce improper expert testimony in rebuttal , admit ting an inflammatory autopsy photo, and improperly us ing an expert report in their closing argument . Lastly, Wagner asserts that the trial court abused its discretion in sentencing him to an aggregated term of twenty to forty year s in a state correctional facility. We disagree and therefore affirm. First, Wagner argues that there was not sufficient evidence to support the convictions of third

- degree murder and aggravated a ssault. In reviewing the sufficiency of the evidence, “ [ w ] e must determine whether the evidence admitted at trial, and all reasona ble inferences drawn therefrom, when viewed in a light most favorable to the Commonwealth as verdict winner, ...enable the trier of fact to find every element of the crime has been established beyond a reasonable doubt.” Commonwealth v. Tarrach , 42 A.3d 342, 345 (Pa.Super. 2012)(citation omitted). “ The evidence established at trial need not preclude every possibility of innocence and the fact

- finder is free to believe all, part, or none of the evidence presented. ” Id.
A conviction for m u rder of the third

- degree requires sufficient evidence that an individual was killed by another unintentionally, without premeditation, and maliciously. See Commonwealth v. Young , 431 A.2d 230, 232 ( PA 1981)

. To establish malice, t he Commonwealth must prove that the perpetrator acted with a “ hardness of heart , recklessness of consequences, and a mind regardless of social duty , although a particularJ

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person may not be intended to be injured .” Commonwealth v. Fisher , 80 A.3d 1186, 1191 (Pa. 2013) ( citation omitted)

. U nder 18 Pa.C.S. § 2702(a)(1), “ [a] person is guilty of aggravated assault if he [] attempts to cause serious bodily injury to another, or causes such injury intentionally, knowingly or recklessly under circumstances

man ifesting extreme indifference to value of human life.” Where , as is undisputed here, the victim suffers serious bodily injury, the Commonwealth need not prove specific intent , but need only prove that the defendant “ acted recklessly under circumstances manifesting extreme indifference to value of human life." Commonwealth v. Nichols , 692 A.2d 181 , 185 (Pa.Super. 1997) (citation omitted)

. A person acts recklessly with respect to serious bodily injury when they consciously disregard a substantial and unjustifiable risk that serious bodily injury will result from their conduct. See id. This risk must be of such a nature that the conduct and the circumstances involve a gross deviation from the standard of conduct that a reasonable person would observe in the perpetrator's situation. 18 Pa.C.S.A. § 302(b)(3). Here, the Commonwealth’s case was built on the expert testimony of Wayne Ross, M.D. who performed t he autopsy
. Dr. Ross concluded that Finnick suffered serious bodily injury with signs of new and old trauma to the brain and spin e indicated by tears in the blood vessels deep in the brain and bruising on the head. See N.T. Jury Trial, 5/24/202 1 , 15 4

- 60, 1 66

- 195

. He determined within a reasonable degree of scientific certainty that Finnick diedJ

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as a result of the se traumatic brain and spinal cord injuries. S ee i d . at 196

- 197. The cause of the injuries was consistent with Finnick’s head being rapidly and violently moved as well as nine separate strikes to the head. S ee i d

. at 156

- 60, 176, 195. Another expert witness offered by the C ommonwealth, Dr. Lori Frasie r, M.D. , agreed that the brain trauma caused Finnick’s death was incurred from the child being violently shaken an d the child hitting his head

on a hard, blunt object or a hard, blunt object hitting his head. S ee i d. at 41

- 43, 88

- 89. Additionally , the testimony of Finnick’s mother establishe d tha t Wagner was with the child and responsible for the child’s care at the time the injuries likely occurred and Finnick was found unresponsive

. See i d . at 58

- 61. Collecti vely, this evidence is sufficient to support a conclusion that Wagner shook Finnick and caused hard blows to his head , resulting in trauma to the brain and spin e which led to Finnick’s death. Therefore , f or the charge of aggravated assault, th is evidence is sufficient to find that Wagner acted in a manner that is a gross deviation from the standard of conduct o f a reasonable person and indicates a reckless disregard of the substantial and unjustifiable risk of seriously injuring Finnick. Similarly, for the charge of third

degree murder, this evidence is sufficient to find that Wagner acted with a recklessness to the most s erious risk of injury and an extreme indifference to the value of human life

. As a result, we conclude that the evidence is sufficient to support t he convictions of aggravated assault and criminal homicide

– murder in the third degree.J

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In his brief, Wagner presents four specific arguments against this conclusion. First, he highlights that the Commonwealth ’s medical expert, Dr. Ross, could only specul ate as to how Finnick suffered the blunt force trauma to his head. See Appellant’s Brief, at 32. However, this argument does not accurately describe Dr. Ross’s testimony. As noted above, Dr. Ross testified that to a reasonable degree of medical certainty, Finnick suffered at least 9 strikes to his head before dying. While this is not direct evi dence of the exact circumstances that led to Finnick’s death, it certainly is circumstantial evidence that Wagner, as the adult who was responsible for Finnick’s care at the time, had violently handled four

- month

- old Finnick. Since there was no evidence th at any other person capable of inflicting such violence interacted with Finnick at the relevant time, the jury was empowered to infer Wagner’s violent treatment of Finnick.
Next , Wagner argues that Dr. Ross acknowledged that Finnick had been sick prior to his death. See id. He separately maintains that there was evidence that Finnick was suffering from an E. Coli infection resulting in sepsis. See id. Finally, he asserts that the testimon y of his own experts so undercut the Commonwealth’s theory of Finnick’s death that there was reasonable doubt

. Th ese argument s , however, are more properly classified as challenge s to the weight of the evidence. There was certainly evidence supporting a conclusion that Finnick died from causes other than those highlighted by Dr.
Ross. And some of that evidence came in the form of expert testimony thatJ

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directly contradicted Dr. Ross’s testimony. But Dr. Ross nevertheless explicitly opined that Finnick died from blunt force trauma to his head. The evidence of other possible causes of death raise s questions of the credibility of Dr. Ross’s opinion, not its sufficiency. Wagner’s first issue on appeal merits no relief. In his second issue , Wagner c laims that the guilty verdict was against the weight of the evidence. “ The weight of the evidence is a matter exclusively for the finder of fact, who is free to believe all, part, or none of the evidence and to determine the credibility of the witnesses. ” Commonwealth v. Gonzalez , 109 A. 3d 711, 7 23 (Pa.Super. 2015) (citation omitted ). Appellate review of the weight of the evidence is “ extremely limited and is confined to whether the trial court abused its discretion in finding that the jury verdict did not shock its conscience. ” Id. A verdict may only be reversed if “ it is so contrary to the evidence as to shock one's sense of justice. ” Id. More specifically, Wagner contends that the manifest weight of the evidence suggests Finnick ’ s cause of death was untreated sepsis from an E. coli infection , not the brain trauma as presented by the Commonwealth

. Wagner relie d on the de fens e expert testimony offered by Michael Laposata , M.D., Ph.D., which suggest ed that sepsis due to an E. Coli infection, combined with a blood clotting disorder, caused Finnick’s death

. N.T. Jury Trial, 5/25/21 at 21

- 22, 24

- 25, 30. Dr. Laposata testified the blood clotting disorder can mimic trauma and Finnick’s injuries were a result of life

- saving measures taken by medical professionals. See i d. at 32, 35

- 36. The defense’s otherJ

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expert witness, Janice Ophoven , M.D., agreed Finnick died of sepsis and the injuries were due to life

- saving measures performed. S ee i d. at 74

- 76 , 101

- 1 0 2

. In rebuttal, Dr. R oss disputed that a blood clotting disorder caused the brain trauma because such a disorder would cause blood all over the brain and inside the brain which was not found here. See i d. 190

- 195 ; N.T. Jury Trial, 5/26/21 at 27

. He disagreed with the defense’s theory tha t life

- saving CPR caused the injuries because, if Finnick had a blood clotting disorder, there would have been bruises on the child’s back. See i d. at 31,34

. Similarly, Dr. Frasier explain ed that the trauma from injuries could present symptoms of sepsis, but sepsis could not explain the damage to Finnick’s head and neck. See N.T. Jury Trial , 5/24/21 at 86

- 87. After reviewing this record, the trial court concluded that the experts disagreed with one another, and the jury had to and evidently did choose which expert testimony to believe. We did not find [Wagner’s] expert testimony so strong that the verdicts may be said to be against the weight of the evidence, and we found the Commonwealth’s evidence neither weak nor tenuous.

... We note that the defense expert testimony of Dr. Laposata was compelling, but that we found Dr. Ophoven’s testimony less than credible. Apparently, the jury thought the same. We were far from shocked at the verdicts. Trial Court Opinion, 4/11/2022, at 10

. After our own independent review of the record, we cannot conclude that the t rial court’s reasoning constitutes an abuse of discretion. The trial court’s observation that this was a battle of expert opinion is accurate, as isJ

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the court’s observation tha t the jury performed its assigned duty and resolved the conflict based upon credibility assessments. Wagner’s second issue merits no relief. Next, Wagner claims Dr. Ross’s rebuttal expert testimony strayed beyond the bounds of proper rebuttal testimony. The admissi bility of “ expert testimony is a matter left largely to the discretion of the trial court, and its rulings thereon will not be reversed absent an abuse of discretion. A n expert's testimony is admissible when it is based on facts of re cord and will not cause confusion or prejudice. ” Commonwealth v. Huggins , 68 A.3d 962, 966 (Pa.Super. 2013)(citation omitted )

. R ebuttal testimony is admissible to discredit the defense’s expert witness and , in doing so, may repeat some of the prior testimony given. See Remy v. Michael D’s Carpet Outlets , 571 A.2d 446, 450 (Pa. Super. 1990). Here, the Commo nwealth called on Dr. Ross to rebut Wagner’s expert’s claim that his work was “sloppy” and lack ing a comprehensive review. N.T., 5/26/21 at 4

- 8. Additionally, Dr. Ross was called to refute Wagner’s experts’
assertion s that the cause of death was sepsis caused by an E. coli infection which was, in part, repetitive to their prior direct examination s but was offered in direct response to the testimony of W agner ’ s expert witnesses. The trial court decided that allowing Dr. Ross to directly address the criticisms of his expert opinion would aid the jury in performing its task in assessing th e credibility of the conflicting expert opinions. We cannot conclude that this wasJ

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an abuse of the trial court’s discretion. See Commonwealth v. Yale , 150 A.3d 979 , 983 (Pa. Super. 2016) (concluding there was nothing improper with the trial court’s decisio n to allow an expert to address criticisms of his direct testimony in rebuttal). In his fourth issue , Wagner claims the trial court erred in allowing an autopsy photo of Finnick’s body to be introduced during rebuttal testimony

. The trial judge h as the discretion of admitting photographs of a murder victim and only an abuse of this discretion would establish reversible error. See C ommonwealth v. Spell , 28 A.3d 1274 , 1279 ( Pa. 2011 ) (citation omitted). The court must first determine whether the photograph is inflamm atory and, if inflammatory, then “decide whether or not the photographs are of such essential evidentiary value that their need clearly outweighs the likelihood of inflaming the minds and passions of the jurors. ” Commonwealth v. Chester , 587 A.2d 1367, 1373

- 74 ( Pa. 1991) (citations omitted)

. Here, the trial court determined that the photo was not inflammatory , explaining: “ It does not depict the child’s face or front of his body. Some redness is visible on the b ack and neck, but not alarmingly so, and no lacerations, blood, or other offensive visuals are present. ” Trial Court Opinion, 4/11/22 , at 15. In fact, when Wagner’s counsel objected to the admission of the photos at trial stating that showing Finnick’s face would be “indecent , ” the court excluded the photo showing his face and only admitted the ph oto that showed Finnick ’s back, neck, and lower back of h ead. N.T. 5/26/21 at 8.J

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The trial court admitted the photograph because it found the photograph relevant to an issue that was hotly disputed by the experts. Wagner’s experts posited that Finnick was suffering from a blood disorder that hindered his ability to form blood clots

. See N.T., 5/25/21, at 26. Wagner’s experts therefore opined that this lack of clotting, when combined with the CPR performed on Finnick, explained the bruising on Finnick’s head

. See id. , at 74. In contrast, Dr. Ross opined tha t he discounted the blood clotting theory because, if true, there would be bruises on Finnick’s back from the CPR

. See N.T., 5/26/21, at 31

- 34. Under these circumstances, we cannot conclude the trial court abused its discretion in admitting the photograph. The presence or absence of bruising on Finnick’s back was directly relevant to the jury’s analysis of a material dispute between the experts. Wagner’s fourth issue merits no relief. Next, Wagner claims the trial court erred by allowing and not striking a portion of the Commonwealth’s closing argument in which it used a defense expert’s report to impugn the credibility of that expert
. The Pennsylvania Supreme Court has ruled in favor of using an expert ’ s inconsistent statements in his written report during the closing argument

. See Commonwealth v. Sholcosky , 719 A.2d 1039 (Pa. 1998). In Sholcosky , a lso a case involving the homicide of an infant, the defense expert’s testimony about the time of
t he infant ’ s injury was inconsistent with the time offered in his written report

. See id. at 1040. The defen se did not address the inconsistency and, withoutJ

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objection from the Commonwealth , entered the written report into evidence at the end of the trial. See id. at 1041. Subsequently, the Commonwealth sought to restrict the defense from using the information in the report during the closing argument and require they only use the testimony presented at trial. See i d. The Commonwealth argued that admission of information in the report would be improper because closing arguments must be based upon testimony, not extrinsic evidence. See i d. The trial court granted the Commonwealth’s motion and restricted the defense from using the report

. See i d. On a ppeal, both this Court and th e Supreme Court held that the trial court reversibly erred by pr ecluding the defense from referenc ing the written report in its closing argument

. See id.
at 1045. The Supreme Court explained , “ [f] oregoing cross

- examination does not render the prior inconsistent statement inadmissible as substantive evidence” and the proponent of an inconsistent statement, who uses the statement solely to impeach the credibility of the witness, is not required to examine the witness about the statement. Id. Additional ly, the Supreme Court noted the Commonwealth did not object to the admissibility of the report when it was offered into evidence yet then s ought to limit it s use as substantive evidence. See id. Ultimately, the Supreme Court held that the trial judg e erred because the report was properly admitted as evidence and defense counsel should have been permitted to refer to the report in closing argument. See id.J

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Although Wagner does not specify which references to the expert report impugned the witness , the trial record shows the Commonwealth highlighted inconsistent statements within Dr. Oph oven’s expert report to impeach Dr. Ophoven’s credibility. The Commonwealth pointed out that Dr. Ophoven’s report asserted that it was challenging to come to definitive conclusions of Finnick’s cause of death without investigative reports and autopsy photos, while, at the same time, the report listed investigative reports and autopsy photos as materials reviewed in its preparation. N.T. 5/26/ 21 at 87

- 88. Wagner claims that even though the report was admitted into evidence,
it should not have been permitted in the closing arguments because the report
was not published to the jury and the inconsistent statements were not subjected to cross

- examination . However, these arguments are refuted by Shol c osky , where counsel sought to use inconsistent statements in a n expert report admitted into evidence but not previously produced and was not subjected to cross

- examination. Therefore, we do not find that the trial court erred in permitting the Commonwealth to use the expert opinion in its closing argument
. Lastly, Wagner argues the court abused discretion by sentencing him to

an aggregate term of twenty to forty years in a state correctional facility

. Wagner challenges the discretionary aspects of his sentence. “Challenges to the discretionary aspects of sentencing do not entitle an appellant to review as of right.” Commonwealth v. Moury , 992 A.2d 162, 170 (Pa. Super. 2010)J

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(citation omitted). Before we can reach the merits of Wagner’s claim, we must perform a four

- part analysis: (1) whether appellant has filed a timely notice of appeal, see Pa.R.A.P. 902 and 903; (2) whether the issue w as properly preserved at sentencing or in a motion to reconsider and modify sentence, see Pa.R.Crim.P. 720; (3) whether appellant’s brief has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a substantial question that the sentence appealed from is not appropriate under the Sentencing Code, 42 Pa.C.S.A. § 9781(b). Moury , 992 A.2d at 170 (citation and brackets omitted). Here, Wagner filed a timely appeal and preserved his claim in his post

sentence motion. Wagner also included a separate Rule 2119(f) Statement in his brief; accordingly, we will review his Rule 2119(f) statement to determine whether he has raised a substantial question. See Commonwealth v.
Provenzano , 50 A.3d 148, 154 (Pa. Super. 2012) (stating that “we cannot look beyond the s tatement of questions presented and the prefatory 2119(f) statement to determine whether a substantial question exists.” (citation omitted)). “The determination of what constitutes a substantial question must be evaluated on a case

- by

- case basis.” Commonw ealth v. Edwards , 71 A.3d 323, 330 (Pa. Super. 2013). “A substantial question [exists] only when the appellant advances a colorable argument that the sentencing judge’s actions were either: (1) inconsistent with a specific provision of the Sentencing Code; or (2) contrary to the fundamental norms which underlie the sentencing process.” Id. (citation omitted).J

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In his Rule 2119(f) statement, Wagner implies that the trial court imposed an aggravated range sentence. See Appellant’s Brief, at 2 3 (“ The reasons to aggravate Mr. Wagner’s sentence are inadequate ... ”). However, we agree with the trial court that Wagner’s sentence was within the guidelines. Wagner correctly notes that the lowest possible minimum sentence pursuant to the guidelines is seven years given Wagner’s prior record score of one . See
Pa . Code § 303.16(a) . However, as Wagner concedes, the trial court properly considered the minimum sentence to be 15 years pursuant to the Commonwealth’s invocation of 42 Pa.C.S.A. § 9718(a)(2)

. See Appellant’s Brief, at 53. Furthermore, the highest possible minimum standard range sentence under the guidelines was one

- half the statutory maximum sentence for third

degree murder. See Pa. Code § 303.16(a) . The statutory maximum sentence for third

- degree murder is 40 years . See 18 Pa.C.S.A. § 1102(d). As a result, Wagner’ s 20

- year minimum sentence fall s within the standard range of the guidelines. Since Wagner’s argument is premised on an incorrect reading of the sentencing guidelines, he has not presented a substantial question and we cannot review the argument on the merits. See Commonwealth v. Fowler , 893 A.2d 758, 767 (Pa. Super. 2006) (observing that “the standard range ... is presumptively where a defendant should be sentenced.”). As we conclude none of Wagner’s issues on app eal merit relief, we affirm the judgment of sentence.J

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Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 2 /0 7 /2023