J-S39001-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : BRIAN LEROY WAGNER : : Appellant : 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”) appeals from the judgment of sentence
entered after the trial court convicted him of Criminal Homicide - Murder of
the Third Degree, Aggravated Assault, and Endangering the Welfare of
Children – Parent or Guardian. The charges 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 verdict J-S39001-22
was against the weight of the evidence; and the trial court erred by permitting
the Commonwealth to introduce improper expert testimony in rebuttal,
admitting an inflammatory autopsy photo, and improperly using 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 years 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 assault. In reviewing
the sufficiency of the evidence, “[w]e must determine whether the evidence
admitted at trial, and all reasonable 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 murder 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, the Commonwealth must prove that
the perpetrator acted with a “hardness of heart, recklessness of
consequences, and a mind regardless of social duty, although a particular
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person may not be intended to be injured.” Commonwealth v. Fisher, 80
A.3d 1186, 1191 (Pa. 2013) (citation omitted).
Under 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
manifesting 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 the autopsy. Dr. Ross concluded that
Finnick suffered serious bodily injury with signs of new and old trauma to the
brain and spine indicated by tears in the blood vessels deep in the brain and
bruising on the head. See N.T. Jury Trial, 5/24/2021, 154-60, 166-195. He
determined within a reasonable degree of scientific certainty that Finnick died
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as a result of these traumatic brain and spinal cord injuries. See id. 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. See id. at
156-60, 176, 195. Another expert witness offered by the Commonwealth, Dr.
Lori Frasier, M.D., agreed that the brain trauma caused Finnick’s death was
incurred from the child being violently shaken and the child hitting his head
on a hard, blunt object or a hard, blunt object hitting his head. See id. at 41-
43, 88-89. Additionally, the testimony of Finnick’s mother established that
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 id. at 58-61.
Collectively, 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 spine which led to Finnick’s death. Therefore, for the charge
of aggravated assault, this evidence is sufficient to find that Wagner acted in
a manner that is a gross deviation from the standard of conduct of 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 serious 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 the convictions of aggravated assault and criminal homicide –
murder in the third degree.
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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 speculate 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 evidence 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 that 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 testimony of his own experts so undercut
the Commonwealth’s theory of Finnick’s death that there was reasonable
doubt. These arguments, however, are more properly classified as challenges
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 that
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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 raises 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 claims 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, 723 (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 relied on the defense expert testimony offered by Michael Laposata,
M.D., Ph.D., which suggested 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 id. at 32, 35-36. The defense’s other
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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. See id. at 74-76, 101-
102.
In rebuttal, Dr. Ross 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 id. 190-195; N.T. Jury
Trial, 5/26/21 at 27. He disagreed with the defense’s theory that 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 id. at 31,34. Similarly, Dr.
Frasier explained 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 trial court’s reasoning constitutes an abuse of discretion. The trial
court’s observation that this was a battle of expert opinion is accurate, as is
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the court’s observation that 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 admissibility 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. An expert's
testimony is admissible when it is based on facts of record and will not cause
confusion or prejudice.” Commonwealth v. Huggins, 68 A.3d 962, 966
(Pa.Super. 2013)(citation omitted). Rebuttal 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 Commonwealth called on Dr. Ross to rebut Wagner’s expert’s
claim that his work was “sloppy” and lacking a comprehensive review. N.T.,
5/26/21 at 4-8. Additionally, Dr. Ross was called to refute Wagner’s experts’
assertions that the cause of death was sepsis caused by an E. coli infection
which was, in part, repetitive to their prior direct examinations but was offered
in direct response to the testimony of Wagner’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 the
credibility of the conflicting expert opinions. We cannot conclude that this was
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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 decision 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 has the discretion of admitting photographs of a murder victim
and only an abuse of this discretion would establish reversible error. See
Commonwealth v. Spell, 28 A.3d 1274, 1279 (Pa. 2011) (citation omitted).
The court must first determine whether the photograph is inflammatory 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 back 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 photo that
showed Finnick’s back, neck, and lower back of head. N.T. 5/26/21 at 8.
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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 that 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, also a case involving
the homicide of an infant, the defense expert’s testimony about the time of
the infant’s injury was inconsistent with the time offered in his written report.
See id. at 1040. The defense did not address the inconsistency and, without
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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 id. 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
id. The trial court granted the Commonwealth’s motion and restricted the
defense from using the report. See id. On appeal, both this Court and the
Supreme Court held that the trial court reversibly erred by precluding the
defense from referencing 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. Additionally, the Supreme Court
noted the Commonwealth did not object to the admissibility of the report when
it was offered into evidence yet then sought to limit its use as substantive
evidence. See id. Ultimately, the Supreme Court held that the trial judge 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.
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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. Ophoven’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
Sholcosky, where counsel sought to use inconsistent statements in an 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)
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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 was 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 statement 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.” Commonwealth 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).
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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 23 (“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 falls 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 appeal merit relief, we affirm
the judgment of sentence.
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 2/07/2023
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