J-S16029-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

MICHELE RENAE HUNTER,

Appellant No. 1298 MDA 2014

Appeal from the Judgment of Sentence April 2, 2014

In the Court of Common Pleas of Franklin County

Criminal Division at No(s): CP-28-CR-0001470-2011

BEFORE: PANELLA, OLSON AND OTT, JJ.

MEMORANDUM BY OLSON, J.: FILED JULY 14, 2015

Appellant, Michele Renae Hunter, appeals from the judgment of 

sentence entered on April 2, 2014, as made final by the denial of her postsentence motion on July 1, 2014. We affirm. 

This Court has previously outlined the factual background of this case 

as follows:

The four-year-old victim [(“Victim”)], is [Appellant’s husband’s 

(“Husband’s”)] biological son and [Appellant’s] stepson. While in 

[Appellant’s] care, [Victim] suffered a severe brain injury 

(subdural hemorrhage), which led to cardiopulmonary arrest. 

The attending pediatrician on staff at the hospital where [Victim] 

was taken for treatment opined that there is a high probability 

that he will suffer lasting brain damage as a result of the injury.1 

The doctor also noticed that [Victim] had bruising over his entire 

 

1

 In fact, at [Appellant’s] bail hearing, [Victim]’s foster mother testified that 

he is unable to walk, talk, swallow food, communicate or play. He has a 

shunt in his head to drain fluid and a permanent feeding tube that goes into 

his stomach and intestines. 
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back, consistent with hand prints, as well as on both arms and 

elbows. The doctor noted that child abuse was suspected.

Initially, [Appellant] told the police that on March 16, 2011, 

[Victim] had been upstairs and had fallen and reopened an old 

cut on his chin. She also told the officers that the boy had 

passed out in the bathroom, fell, and was non-responsive and 

had difficulty breathing. Days later, [Appellant] told the 

authorities that she had not given accurate information 

regarding how the child became injured and that, in fact, on 

March 15, 2011, she had pushed the child down, causing him to 

hit his head. She said that he became unresponsive and that 

she was unable to rouse him by carrying him to the bathroom 

and splashing cold water in his face. She said that the boy 

remained relatively unresponsive (“limp”) throughout the day, 

falling in and out of periods of responsiveness. He was unable to 

move his limbs or sit up on his own.

[Appellant] also told the authorities that throughout the day on 

March 15, she began sending Husband texts at work, describing 

the boy’s deteriorating condition over a 36–hour span. [Victim]

was unable to walk or sit up on his own that evening and was 

put to bed by Husband and [Appellant], both of whom checked 

on him throughout the night. The next morning, March 16, 

[Victim] was able to walk with some assistance, although he 

continued to exhibit many of the physical symptoms from the 

day before. That evening, as Husband carried his son into his 

bedroom, [Victim] began gasping for breath and went into 

cardiac arrest. He was rushed to the hospital.

Commonwealth v. Hunter, 60 A.3d 156, 157–158 (Pa. Super. 2013) 

(citations and certain footnote omitted). 

The relevant procedural history of this case is as follows. On 

September 19, 2011, Appellant was charged via criminal information with 

aggravated assault,2simple assault,3endangering the welfare of a child,4

 

2 18 Pa.C.S.A. § 2702(a)(1). 

3 18 Pa.C.S.A. § 2701(a)(1).
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and conspiracy to endanger the welfare of a child.5 On September 21, 2011, 

Appellant waived arraignment. On October 17, 2011, Appellant filed her 

omnibus pre-trial motion. That omnibus pre-trial motion only sought 

suppression of text messages Appellant sent Husband based upon the 

spousal privilege. It did not seek suppression of Appellant’s confession. On 

February 14, 2012, the trial court denied the motion to suppress text 

messages. Appellant filed an interlocutory appeal and, on January 15, 2013, 

this Court affirmed. Hunter, 60 A.3d at 162. 

On February 22, 2013, Appellant filed a second pre-trial motion to 

suppress. In this motion, Appellant alleged that her confession was given 

involuntarily. On February 27, 2013, the trial court denied the motion to 

suppress the confession as untimely. On March 20, 2013, Appellant filed a 

motion to reconsider. On April 18, 2013, the trial court conducted an 

evidentiary hearing on the motion to reconsider. On April 26, 2013, the trial 

court issued an order and opinion denying the motion for reconsideration. 

On June 21, 2013, Appellant filed a motion in limine to exclude a video 

which showed a day in the life of Victim. On July 29, 2013, the trial court 

denied Appellant’s motion in limine. On January 17, 2014, the 

Commonwealth filed a motion in limine to permit admission of prior bad acts 

evidence. On January 29, 2014, the trial court granted the Commonwealth’s 

 

4 18 Pa.C.S.A. § 4304(a)(1).

5 18 Pa.C.S.A. §§ 903, 4304.
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motion in limine. Trial commenced on February 4, 2014. On February 10, 

2014, the jury found Appellant guilty of all charges. On April 2, 2014, the 

trial court sentenced Appellant to an aggregate term of 9 to 20 years’ 

imprisonment. 

On April 11, 2014, Appellant filed a post-sentence motion. On July 1, 

2014, the trial court issued an order and opinion denying Appellant’s postsentence motion. This timely appeal followed. On July 29, 2014 the trial 

court ordered Appellant to file a concise statement of errors complained of 

on appeal (“concise statement”). See Pa.R.A.P. 1925(b). On August 8, 

2014, Appellant filed her concise statement. On August 26, 2014, the trial 

court issued its Rule 1925(a) opinion.6

Appellant presents seven issues for our review:

1. Did the trial court err by denying Appellant’s motion for 

suppression of evidence filed on February 22, 2013 because said 

motion was timely when Appellant filed an interlocutory appeal 

and filed said motion the same day the record was remitted back 

to the trial court?

2. Did the trial court err by denying Appellant’s motion to exclude 

proposed exhibits which sought to exclude the day in the life of 

[Victim] video because the probative value was outweighed by 

the prejudicial effect?

3. Did the trial court err by granting the Commonwealth’s motion to 

admit other crimes evidence filed January 17, 2014? 

 

6 We are grateful to the trial court for its thorough, 61-page Rule 1925(a) 

opinion. The trial court meticulously addressed each argument raised by 

Appellant and the Commonwealth and issued opinions contemporaneously 

with several of its rulings. 
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4. Did the trial court err by ruling that merger did not apply to the 

aggravated assault and simple assault convictions because[,] as 

evidenced by the jury’s question at 1:43 p.m.[,] the jury was led 

to believe that if the jury believed that Appellant pushed the 

Victim, the jury must convict the Appellant of both aggravated 

assault and simple assault because it was the same transaction 

or occurrence?

5. Did the trial court abuse its discretion by imposing an unduly 

harsh and unreasonable sentence when it imposed sentences in 

the upper end of the aggravated range and ordered all sentences 

to be served consecutively because[,] at the time of the 

offense[,] Appellant did not have a prior record, showed genuine 

remorse about the Victim’s injuries, and was reluctant to call for 

assistance based on the repeated abuse she sustained during the 

marriage?

6. Did the trial court abuse its discretion when [it] denied 

Appellant’s motion for judgment of acquittal because there was 

insufficient evidence to conclude that Appellant injured the 

Victim, or, in the alternative, if Appellant did injure the Victim, 

there was insufficient evidence to conclude that Appellant 

intended to cause the injuries the Victim sustained?

7. Was the jury’s verdict so against the weight of the evidence as 

presented at trial so as to shock one’s sense of justice because 

Appellant did not have the mens rea to cause the injuries the 

Victim sustained?

Appellant’s Brief at 7-8 (complete capitalization and emphasis removed). 

In her first issue, Appellant contends that the trial court erred by 

denying, as untimely, her February 22, 2013 motion to suppress her 

confession. We conclude that this issue is waived. An issue not included in 

a concise statement, or fairly subsumed therein, is waived. Newman Dev. 

Group of Pottstown, LLC v. Genuardi's Family Mkt., Inc., 98 A.3d 645, 

665 n.24 (Pa. Super. 2014) (en banc), citing Pa.R.A.P. 1925(b)(4)(vii). 
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In this case, Appellant’s concise statement included the following 

issue: 

The trial court committed an error of law by denying 

[Appellant’s] motion for evaluation and suppression of evidence 

filed on February 22, 2013 because [Appellant] was mentally 

incapable of providing such incriminating statements under the 

laws of Pennsylvania and the United States.

Concise Statement, 8/8/14, at 1. The issue, as framed in the concise 

statement, only dealt with the substantive contention that Appellant lacked 

the mental capacity to make the confession challenged in the February 22, 

2013 motion. It did not address the timeliness reason for the denial of the 

motion. As noted above, in her statement of questions involved section of 

her brief, Appellant changed course and attacked the procedural reason for 

the denial of the motion to suppress. This change, however, was too late. 

Appellant should have sought leave of the trial court to amend her concise 

statement. By failing to amend her concise statement, Appellant waived 

consideration of the procedural reason for the denial of her motion to 

suppress. 

In her second issue, Appellant contends that the trial court erred by 

denying her motion in limine to exclude the day in the life of Victim video. 

She contends that the video was unduly prejudicial and, therefore, should 

have been excluded pursuant to Pennsylvania Rule of Evidence 403. This 

argument is also waived. As this Court has stated:

Appellant has the duty to ensure that all documents essential to 

[her] case are included in the certified record. As this Court has 
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previously stated, it is the obligation of the [a]ppellant to make 

sure that the record forwarded to an appellate court contains 

those documents necessary to allow a complete and judicious 

assessment of the issues raised on appeal. If a document is not 

in the certified record then this Court cannot take it into account.

* * *

A failure by appellant to insure that the original record certified 

for appeal contains sufficient information to conduct a proper 

review constitutes waiver of the issue sought to be examined.

Commonwealth v. Manley, 985 A.2d 256, 263 (Pa. Super. 2009), appeal 

denied, 996 A.2d 491 (Pa. 2010) (internal alteration, quotation marks, and 

citations omitted). 

In Manley, the defendant argued that a photo array was unduly 

suggestive and, therefore, should have been excluded. Id. The defendant, 

however, failed to ensure that the photo array was included in the certified 

record. Id. Accordingly, this Court deemed that issue waived. Id. 

Similarly, in the case sub judice, Appellant failed to ensure that the day in 

the life of Victim video was included in the certified record. Without viewing 

the video, it is impossible for us to determine if the video were unduly 

prejudicial. Accordingly, Appellant’s second issue on appeal is waived for 

failing to ensure that the video was included in the certified record. 

In her third issue, Appellant contends that the trial court erred by 

admitting prior bad acts evidence. “When we review a trial court’s ruling on 

admission of evidence, we must acknowledge that decisions on admissibility 

are within the sound discretion of the trial court and will not be overturned 
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absent an abuse of discretion or misapplication of law.” Deeds v. Univ. of 

Pa. Med. Ctr., 110 A.3d 1009, 1017 (Pa. Super. 2015).

Pennsylvania Rule of Evidence 404(b) provides that:

(1) Prohibited Uses. Evidence of a crime, wrong, or other act is 

not admissible to prove a person’s character in order to show 

that on a particular occasion the person acted in accordance with 

the character.

(2) Permitted Uses. This evidence may be admissible for another 

purpose, such as proving motive, opportunity, intent, 

preparation, plan, knowledge, identity, absence of mistake, or 

lack of accident. In a criminal case this evidence is admissible 

only if the probative value of the evidence outweighs its potential 

for unfair prejudice.

(3) Notice in a Criminal Case. In a criminal case the prosecutor 

must provide reasonable notice in advance of trial, or during trial 

if the court excuses pretrial notice on good cause shown, of the 

general nature of any such evidence the prosecutor intends to 

introduce at trial.

Pa.R.Evid. 404(b).

Consistent with Rule 404(b)(3), the Commonwealth moved in limine to 

admit Appellant’s prior bad acts. The trial court granted the 

Commonwealth’s motion in limine and admitted the following Rule 404(b) 

evidence. Nicholas Ranney, a caseworker with Franklin County Children and 

Youth Services, testified that on three occasions he visited Appellant, 

Husband, and Victim. On each of those three visits, he observed bruising on 

Victim. See generally N.T., 2/6/14, at 163-179. Verne Wadel, another 

caseworker with Franklin County Children and Youth Services, testified that 

he also observed bruising on Victim during prior visits. Id. at 190. Carol 
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Fortney, a dental hygienist at Victim’s dentist office, testified regarding 

bruising she observed at his appointment. See generally id. at 132-143. 

As noted in the trial court’s thorough opinion, this case is similar to 

Commonwealth v. Sherwood, 982 A.2d 483 (Pa. 2009). In Sherwood, 

the defendant was charged with first-degree murder for the beating death of 

his four-year-old stepdaughter. Id. at 486. The Commonwealth offered into 

evidence prior instances in which the defendant beat the victim. Id. at 497. 

Our Supreme Court held that such evidence was properly admitted under 

Rule 404(b). Id. at 497. Specifically, our Supreme Court held that prior 

bad acts evidence is admissible when the bad acts were critical to 

understanding the history of events related to the crime. Id. Applying that 

rule, our Supreme Court held that the prior beatings were critical to 

understanding that the killing of the victim was not an accident or mistake 

and that the defendant possessed the requisite mens rea for first-degree 

murder. See id. 

Likewise, in Commonwealth v. Powell, 956 A.2d 406 (Pa. 2008), the 

defendant was charged with first-degree murder for the beating death of a 

six-year-old child. The trial court admitted evidence that the defendant 

abused the victim’s mother and threw a glass of water at the victim. Id. at 

419-420. Our Supreme Court reasoned that such evidence was properly 

used to show the relationship between the defendant, the victim, and the 

victim’s mother. Id. at 419. Our Supreme Court also reasoned that 
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throwing a glass of water at the victim was probative to the chain of abuse 

suffered by the victim at the hands of the defendant. Id. at 420. 

The same is true in the case sub judice. “[Appellant] told the police 

that on March 16, 2011, [Victim] had been upstairs and had fallen and 

reopened an old cut on his chin. She also told the officers that the boy had 

passed out in the bathroom, fell, and was non-responsive and had difficulty 

breathing.” Hunter, 60 A.3d at 158. Both at trial and on appeal, Appellant 

argues that any injury she caused was an accident. E.g. Appellant’s Brief at 

32. The Commonwealth could use the prior bad acts testimony to show why 

Appellant’s original claim of accident was implausible and to prevent 

Appellant from resurrecting this story. In other words, the prior bad acts 

evidence was admissible to prove absence of mistake, lack of accident, illwill, and/or malice. 

Appellant contends that Sherwood and Powell are distinguishable 

from the case at bar “because in those cases the defendants were alleged to 

have caused blunt force trauma which ultimately led to the deaths of their 

victims.” Appellant’s Brief at 34. This is a distinction without a difference. 

Our Supreme Court’s decisions in Sherwood and Powell did not turn on the 

fact that the defendants were charged with murder. Rather, they turned on 

the fact that at issue in each case was whether the defendant possessed the 

requisite mens rea. Furthermore, both Sherwood and Powell relied upon 
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the res gestae exception.7 That exception is likewise applicable in this case. 

The Commonwealth was entitled to show the complete history of the case, 

including Appellant’s prior abuse of Victim.

The probative value of this prior bad acts evidence also outweighed 

the risk of unfair prejudice. As noted above, this evidence was highly 

probative of whether Appellant accidentally caused Victim’s injuries. On the 

other hand, the risk of unfair prejudice was low. “Unfair prejudice 

supporting exclusion of relevant evidence means a tendency to suggest 

decision on an improper basis or divert the jury’s attention away from its 

duty of weighing the evidence impartially.” Parr v. Ford Motor Co., 109 

A.3d 682, 696 (Pa. Super. 2014) (en banc) (internal quotation marks and 

citations omitted). There were no images entered into evidence relating to 

the prior bad acts. Instead, the only evidence offered was testimony 

regarding bruises observed on Victim. Thus, there was a substantially 

reduced risk that the jury would focus on the prior bad acts evidence when it 

had before it extensive testimonial and documentary evidence relating to the 

crimes at issue in this case. Furthermore, the trial court gave a detailed 

limiting instruction which lessened the risk the jury would inappropriately 

consider the prior bad act evidence. See N.T., 2/4/14, at 194. Accordingly, 

 

7 The res gestae exception allows “evidence of other acts to be admitted to 

tell the complete story.” Commonwealth v. Towles, 106 A.3d 591, 603 

(Pa. 2014) (internal alteration, quotation marks, and citation omitted). 
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we conclude that the trial court did not abuse its discretion in granting the 

Commonwealth’s motion in limine and admitting the prior bad acts evidence. 

In her fourth issue, Appellant contends that the trial court erred by not 

merging her simple assault and aggravated assault convictions for 

sentencing. “A claim that the trial court imposed an illegal sentence by 

failing to merge sentences is a question of law[;]” therefore, our standard of 

review is de novo and our scope of review is plenary. Commonwealth v. 

Orie, 88 A.3d 983, 1020 (Pa. Super. 2014), appeal denied, 99 A.3d 925 (Pa. 

2014). 

Section 9765 of the Sentencing Code provides that:

No crimes shall merge for sentencing purposes unless the crimes 

arise from a single criminal act and all of the statutory elements 

of one offense are included in the statutory elements of the 

other offense. Where crimes merge for sentencing purposes, the 

court may sentence the defendant only on the higher graded 

offense.

42 Pa.C.S.A. § 9765. “Accordingly, merger is appropriate only when two 

distinct criteria are satisfied: (1) the crimes arise from a single criminal act; 

and (2) all of the statutory elements of one of the offenses are included 

within the statutory elements of the other.” Commonwealth v. Raven, 97 

A.3d 1244, 1249 (Pa. Super. 2014), appeal denied, 105 A.3d 736 (Pa. 2014) 

(citation omitted). 

As this Court has explained:

The threshold question is whether Appellant committed one 

solitary criminal act. The answer to this question does not turn 

on whether there was a break in the chain of criminal activity. 
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Rather, the answer turns on whether the actor commits multiple 

criminal acts beyond that which is necessary to establish the 

bare elements of the additional crime. If so, then the defendant 

has committed more than one criminal act. This focus is 

designed to prevent defendants from receiving a volume 

discount on crime[.] 

Commonwealth v. Ousley, 21 A.3d 1238, 1243 (Pa. Super. 2011), appeal 

denied, 30 A.3d 487 (Pa. 2011) (internal alteration, quotation marks, and 

citation omitted). 

It is well-settled that the statutory elements of simple assault are 

included within the statutory elements of aggravated assault. See

Commonwealth v. Pettersen, 49 A.3d 903, 907 (Pa. Super. 2012), appeal 

denied, 63 A.3d 776 (Pa. 2013). Thus, if Appellant’s simple assault and 

aggravated assault convictions arose out of the same criminal act, they must 

merge for sentencing purposes. If, on the other hand, Appellant’s simple 

assault and aggravated assault convictions arose out of separate criminal 

acts, they do not merge for sentencing purposes.

In Commonwealth v. Jenkins, 96 A.3d 1055 (Pa. Super. 2014), 

appeal denied, 104 A.3d 3 (Pa 2014), relying upon our Supreme Court’s 

decisions in Commonwealth v. Comer, 716 A.2d 593 (Pa. 1998), 

Commonwealth v. Anderson, 650 A.2d 20 (Pa. 1994), and 

Commonwealth v. Weakland, 555 A.2d 1228 (Pa. 1989), this Court held 

that we must examine the charging documents when determining if two 

convictions arose from a single criminal act. Jenkins, 96 A.3d at 1060. 

Specifically, this Court held that, “[w]e must determine whether [the 
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defendant’s] actions . . . constituted a single criminal act, with reference to 

elements of the crime as charged by the Commonwealth.” Id. (internal 

quotation marks and citation omitted; emphasis added). 

In Jenkins, the defendant was charged with robbery and simple 

assault. Id. at 1056. In the criminal information, the Commonwealth 

alleged that Jenkins committed robbery because he “assaulted [the victim] 

by punching him in the face causing a facial laceration and fractured jaw. 

[The victim] was forced to the ground, restrained and searched for personal 

belongings, which were stolen from [the victim].” Jenkins, 96 A.3d at 1061 

(citation omitted; emphasis removed). On the other hand, the 

Commonwealth alleged that Jenkins committed simple assault because 

“during the course of a robbery, [Jenkins and his codefendant] assaulted 

[the victim] causing a facial laceration that required stitches and a fractured 

left jaw.” Id. (internal alterations and citation omitted). 

This Court held that the criminal information charged Jenkins with 

simple assault and robbery for distinct criminal acts. Id. at 1062. 

Specifically, this Court held that the simple assault was charged for the 

punch to the face. Id. The criminal information, however, charged 

separately that Jenkins inflicted bodily injury upon the victim (an element of 

robbery) by forcing him to the ground and restraining him. Id. As the 

criminal information charged Jenkins with simple assault and robbery for 

distinct criminal acts, this Court held that the two crimes did not merge for 
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sentencing purposes. Id. This Court noted, however, that, “[h]ad the 

Commonwealth listed only the assaultive conduct that formed the basis of 

the simple assault charge against Jenkins at the robbery charge, we would 

conclude that Jenkins did not commit multiple criminal acts beyond that 

which is necessary to establish the bare elements of the additional crime.” 

Id. (internal quotation marks and citation om

In this case, the criminal information charged as follows with respect 

to aggravated assault, “[Appellant], did, unlawfully attempt to cause serious 

bodily injury to another, or cause such injury intentionally, knowingly, or 

recklessly under circumstances manifesting extreme indifference to the 

value of human life, to wit, [Appellant] did assault a [four-]year[-]old male, 

resulting in serious bodily injury.” Information, 9/19/11, at 1. The criminal 

information charged as follows with respect to simple assault: “[Appellant], 

did, attempt to cause or intentionally, knowingly, or recklessly cause bodily 

injury to another, to wit, [Appellant] did cause physical harm to a [four-

]year[-]old male, resulting in injuries.” Id. at 3. 

The plain language of the information makes evident that Appellant 

was charged with simple assault and aggravated assault for distinct criminal 

acts. In particular, the information only refers to a single serious bodily 

injury with respect to the aggravated assault charge, i.e., the brain injury, 

while it refers to multiple injuries with respect to the simple assault charge, 

i.e., the bruises. The Commonwealth made this distinction clear during its 
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closing argument. The Commonwealth argued, “[Appellant] told you already 

repeatedly from day one that she caused those bruises on his back, those 

fingerprint bruises they found on him when the paramedics got there, when 

the hospital saw him at the Hershey Medical Center. She admits that. 

That’s what [s]imple [a]ssault is.” N.T., 2/10/14, at 62. On the other hand, 

the Commonwealth discussed the brain injuries suffered by Victim when 

urging the jury to convict Appellant of aggravated assault. See id. at 54-61. 

Appellant argues that she committed a single criminal act over a 36-

hour time period. This argument is without merit. As noted above, there 

need not be a break in the chain of criminal activity in order for distinct 

criminal acts to have occurred. This Court’s decision in Jenkins highlights 

this point. The distinct criminal acts may have occurred within seconds of 

one another, nevertheless they were distinct for purposes of our merger 

analysis. In Jenkins, the defendant punched the victim, causing the victim 

to fall to the ground, and then restrained the victim on the ground while 

stealing his property. This Court found that constituted two separate 

criminal acts, the punch and the restraint on the ground. The same is true 

in the case sub judice. Appellant’s act of pushing Victim to the ground and 

causing a severe brain injury (aggravated assault), was immediately 

followed by her grabbing him and causing bruising (simple assault). There 

was no break in the chain of criminal activity, yet, pushing Victim and 
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grabbing him and causing bruising on Victim’s back were two distinct 

criminal acts.

Finally, Appellant contends that a question asked by the jury indicates 

that merger is appropriate. A question the jury asked, however, is not proof 

that the jury misapplied the law. We assume that the jury followed the law 

as instructed by the trial court. Commonwealth v. Coon, 26 A.3d 1159, 

1166 (Pa. Super. 2011), appeal denied, 40 A.3d 1233 (Pa. 2012) (citation 

omitted). Appellant does not argue that the trial court’s instructions were 

incorrect. Instead, she merely argues that the fact the jury asked a 

question indicates that she committed one criminal act. As such, we 

conclude that the trial court correctly determined that the simple assault 

charge should not merge with the aggravated assault charged for the 

purposes of sentencing and Appellant’s sentence was legal. 

 In her fifth issue on appeal, Appellant argues that her sentence is 

excessive. This issue challenges the discretionary aspects of Appellant’s 

sentence. See Commonwealth v. Ali, 2015 WL 926952, *21 n.4 (Pa. 

Super. Mar. 5, 2015). Pursuant to statute, Appellant does not have an 

automatic right to appeal the discretionary aspects of her sentence. See 42 

Pa.C.S.A. § 9781(b). Instead, Appellant must petition this Court for 

permission to appeal the discretionary aspects of her sentence. Id. 

As this Court has explained:

To reach the merits of a discretionary sentencing issue, we 

conduct a four-part analysis to determine: (1) whether appellant 
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has filed a timely notice of appeal, Pa.R.A.P. 902, 903; (2) 

whether the issue was properly preserved at sentencing or in a 

motion to reconsider and modify sentence, 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).

Commonwealth v. Trinidad, 96 A.3d 1031, 1039 (Pa. Super. 2014), 

appeal denied, 99 A.3d 925 (Pa. 2014) (internal alteration and citation 

omitted). “Because Appellant neglected to include a separate Rule 2119(f) 

statement in [her] brief and because the Commonwealth has objected to this 

omission, we deem Appellant’s challenge to be waived.” Id.

In her sixth issue, Appellant contends that the evidence was 

insufficient to find her guilty. “Whether sufficient evidence exists to support 

the verdict is a question of law; thus, our standard of review is de novo and 

our scope of review is plenary.” Commonwealth v. Patterson, 91 A.3d 

55, 66 (Pa. 2014) (citation omitted). In reviewing a sufficiency of the 

evidence claim, we must determine “whether viewing all the evidence 

admitted at trial in the light most favorable to the [Commonwealth], there is 

sufficient evidence to enable the fact-finder to find every element of the 

crime beyond a reasonable doubt.” Commonwealth v. Thompson, 106 

A.3d 742, 756 (Pa. Super. 2014) (citation omitted). “The evidence need not 

preclude every possibility of innocence and the fact-finder is free to believe 

all, part, or none of the evidence presented.” Commonwealth v. Haynes, 
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2015 WL 1814017, *15 (Pa. Super. Apr. 22, 2015) (internal quotation marks 

and citation omitted). 

Appellant first contends that there was insufficient evidence to 

conclude that she injured Victim. This argument is without merit. At trial, 

Appellant conceded that she told police during an interview that she was the 

individual who pushed Victim and caused his injuries. N.T., 2/7/14, at 84. 

The videotape of that confession was played for the jury. From this 

evidence alone, the jury could conclude that Appellant was the individual 

that caused Victim’s injuries. All of Appellant’s arguments to the contrary go 

to the weight of the evidence, and not its sufficiency. 

Second, Appellant contends that, even if she did cause Victim’s 

injuries, she did not have the requisite mens rea for aggravated assault. 

First-degree “aggravated assault is established when an actor ‘attempts to 

cause serious bodily injury to another, or causes such injury intentionally, 

knowingly or recklessly under circumstances manifesting extreme 

indifference to the value of human life.’” Commonwealth v. Spruill, 80 

A.3d 453, 455 (Pa. 2013), quoting 18 Pa.C.S.A. § 2702(a)(1). In this case, 

the Commonwealth argued that Appellant acted recklessly. See N.T., 

2/10/14, at 56. As this Court has explained:

To prevail on a theory of recklessness in a prosecution for 

aggravated assault, the Commonwealth must show that the 

assailant’s recklessness rose to the level of malice, a crucial 

element of aggravated assault. Malice consists of a wickedness 

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

particular person may not be intended to be injured.

Commonwealth v. Riggs, 63 A.3d 780, 784–785 (Pa. Super. 2012), 

appeal denied, 63 A.3d 776 (Pa. 2013) (internal quotation marks omitted).

This Court has found recklessness when a caregiver abused a young 

child. For example, in Commonwealth v. Smith, 956 A.2d 1029 (Pa. 

Super. 2008) (en banc), appeal denied, 989 A.2d 917 (Pa. 2010), the victim 

suffered from shaken baby syndrome. Id. at 1031. A pediatric 

neurosurgeon testified that these injuries were not the result of playful 

shaking, but instead were caused by violent shaking. Id. at 1037. This 

Court held that “[n]othing more than common sense is needed to know that 

the violent shaking of an infant child provides for a substantial and 

unjustifiable risk of serious bodily injury.” Id. Thus, this Court concluded 

that the evidence was sufficient to convict the defendant of aggravated 

assault. Id. 

In Commonwealth v. Hardy, 918 A.2d 766 (Pa. Super. 2007), 

appeal denied, 940 A.2d 362 (Pa. 2008), the victim died from injuries 

suffered as a result of shaken baby syndrome. Id. at 770. The defendant 

was charged with third-degree murder, which requires the same 

recklessness as is required for aggravated assault. This Court concluded 

that there was sufficient evidence of recklessness because:

There was expert testimony that [the v]ictim died because 

someone grabbed him and slammed him against something such 

that immense force was applied to his head. There was also 
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expert testimony that someone grabbed [the v]ictim violently, 

squeezed him so as to fracture his ribs, shook him, and caused 

his head to strike a hard object with enough force to produce 

bleeding, swelling and, ultimately, death. 

Id. at 774. 

The same pediatric neurosurgeon that testified in Smith testified in 

the case sub judice. At trial, he testified that Victim “suffered a rather 

severe traumatic brain injury. . . . [I]t was abusive in nature.” N.T., 2/6/14, 

at 146. He also opined that, “It’s my view – and I say this within a 

reasonable degree of medical certainty – that [Victim] suffered a severe 

traumatic brain injury from allegedly being thrown to the ground and striking 

his head on the floor[.]” Id. at 148. The pediatric neurosurgeon also 

stated, “[w]hat I’m sure of is that whatever it was that happened was 

inflicted and not accidental and that it caused a severe brain injury.” Id. at 

174. This testimony was essentially the same testimony that the same 

pediatric neurosurgeon gave in Smith, and which we deemed sufficient to 

conclude that the defendant in Smith acted recklessly. 

As in Hardy, the evidence in the case at bar, viewed in the light most 

favorable to the Commonwealth, showed that Appellant pushed Victim to the 

ground, causing severe brain trauma. Appellant makes several arguments 

relating to how she lacked the requisite mens rea for aggravated assault. 

These arguments, however, view the evidence in the light most favorable to 

Appellant and go to the weight of the evidence instead of its sufficiency. 

Therefore, we conclude that there was sufficient evidence to prove that 
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Appellant acted recklessly. Accordingly, there was sufficient evidence to 

convict her of aggravated assault. 

Finally, Appellant contends that the conviction is against the weight of 

the evidence. A challenge to the weight of the evidence must first be raised 

at the trial level “(1) orally, on the record, at any time before sentencing; 

(2) by written motion at any time before sentencing; or (3) in a postsentence motion.” In re J.B., 106 A.3d 76, 97 (Pa. 2014) (citation 

omitted). Appellant properly preserved her weight of the evidence claim by 

raising the issue in her post-sentence motion. 

“[A] new trial based on a weight of the evidence claim is only 

warranted where the jury’s verdict is so contrary to the evidence that it 

shocks one’s sense of justice.” Commonwealth v. Tejada, 107 A.3d 788, 

795–796 (Pa. Super. 2015) (internal alteration and citation omitted). “[W]e 

do not reach the underlying question of whether the verdict was, in fact, 

against the weight of the evidence. . . . Instead, this Court determines 

whether the trial court abused its discretion in reaching whatever decision it 

made on the motion[.]” Commonwealth v. Ferguson, 107 A.3d 206, 213 

(Pa. Super. 2015) (citation omitted).

When ruling on Appellant’s weight of the evidence claim, the trial court 

concluded:

[Appellant’s] weight claim fails. The jury is free to believe all, 

parts, or none of the evidence, and to make credibility 

determinations. Conflicts between testimonies are for the jury 

to resolve, and review of the jury’s credibility determinations is 
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not for the trial court to undertake. Upon careful consideration 

of the record, the [trial c]ourt does not find any of the evidence 

presented by [Appellant] in support of her weight claim so 

clearly of greater weight than the evidence presented supporting 

her convictions that failure to give it credence amount to a denial 

of justice. The verdicts are not so contrary to the evidence as to 

shock one’s sense of justice. 

Trial Court Opinion, 7/1/14, at 47. After careful review of the entire certified 

record, we discern no abuse of discretion in the trial court’s analysis. 

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/14/2015