Commonwealth v. Thomas

• Decision Date: 21 February 2023
• Docket Number: 17 EDA 2022,J-A26027-22
• Parties: COMMONWEALTH OF PENNSYLVANIA Appellee v. MARQUIS THOMAS Appellant
• Court: Pennsylvania Superior Court

COMMONWEALTH OF PENNSYLVANIA Appellee v. MARQUIS THOMAS Appellant

No. 17 EDA 2022

No. J-A26027-22

Superior Court of Pennsylvania

February 21, 2023

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Judgment of Sentence Entered October 28, 2021 In the Court of Common Pleas of Montgomery County Criminal Division at No(s): CP-46-CR-0004273-2019

BEFORE: BOWES, J., KING, J., and PELLEGRINI, J. ^[*]

MEMORANDUM

KING J.

Appellant Marquis Thomas, appeals from the judgment of sentence entered in the Montgomery County Court of Common Pleas, following his jury trial convictions for first-degree murder, two counts of aggravated assault on a child less than 13 years old, two counts of simple assault, two counts of endangering the welfare of a child, and strangulation.^[1] We affirm.

In its opinion, the trial court summarized the relevant facts of this case as follows:

Appellant's convictions arose out of the October, 2016 death of his girlfriend's, Pailenn Bunrout's four-year-old daughter, K.B. In addition, his convictions arose out of the abuse of his girlfriend's then 10-year-old son, D.B. in 2018. In 2019, D.B. disclosed that Appellant had choked him, and had done so several times, and had engaged in other abusive behaviors. At the time of the respective crimes, Appellant was living with his girlfriend, her children, K.B. and D.B., and a child they shared together, K.T. K.B. and D.B. thought of Appellant as their father. [Although the cause of K.B.'s death was initially ruled "undetermined," after D.B. sustained injuries in 2018 similar to injuries K.B. had presented with shortly before her death in 2016, police began to reinvestigate the circumstances of K.B.'s death].

At trial, the defense asserted that K.B.'s cause of death was undetermined as reported by the Montgomery County Coroner's Office in its autopsy report, and the constellation of injuries that were found on her both externally and internally were likely caused by strenuous and improper resuscitation efforts as suggested by the autopsy report. In defense of the abuse to D.B., it was asserted that D.B.'s February 9, 2019 disclosure and his trial testimony were not credible.

(Trial Court Opinion, filed February 16, 2022, at 1-2).^[2]

On October 28, 2021, a jury convicted Appellant of the above-mentioned offenses. Appellant proceeded immediately to sentencing, at which time the court sentenced Appellant to life imprisonment for the murder conviction and imposed lesser sentences for some of the other offenses. On Monday, November 8, 2021, Appellant timely filed post-sentence motions, which the court denied the next day. Appellant timely filed a notice of appeal on December 9, 2021. On December 16, 2021, the court ordered Appellant to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant complied on January 6, 2022.

Appellant raises eight issues for our review:

1) Did the trial court err in denying Appellant's post-sentence motion for a judgment of acquittal as to murder of the first degree in that:

A. The Commonwealth failed to present evidence that Appellant acted with the specific intent to kill; and

B. The Commonwealth failed to demonstrate that the decedent was in the sole care and custody of Appellant?

2) Did the trial court err in denying Appellant's post-sentence motion for a new trial as the verdict was against the weight of the evidence where the Commonwealth's case was riddled with inconsistencies and defied common sense as to the nature and extent of the injuries allegedly sustained by the two children?

3) Did the trial court err in denying Appellant an opportunity to proceed to a hearing challenging the competency of a child witness for taint?

4) Did the trial court err in admitting child hearsay pursuant to the tender years exception?

5) Did the trial court err in denying Appellant's motion for a mistrial for a discovery violation where the child complaining witness disclosed additional facts to the Commonwealth during trial preparations and the Commonwealth failed to disclose this new information to Appellant prior to that witness's testimony?

6) Did the trial court err in denying Appellant's motion for a continuance where a pediatric pathologist became unavailable to testify?

7) Did the trial court err in admitting autopsy photographs of the four-year-old decedent?

8) Did the trial court err in declining to read the proposed voir dire questions to the jury panel regarding the nature of the offenses and the autopsy photographs of the four-year- old decedent to determine if potential jurors could set aside their passions and determine the matter based on the evidence presented?

(Appellant's Brief at 6-7).

After a thorough review of the record, the briefs of the parties, and the relevant law, we agree with the trial court's thorough legal analysis as set forth in the trial court's opinion. (See Trial Court Opinion at 29-64).

Therefore, we adopt the trial court's reasoning as our own.

Specifically, the trial court evaluated each of Appellant's issues on appeal as follows. With respect to Appellant's challenge to the sufficiency of the evidence, the Commonwealth's forensic pathology expert, Dr. Gulino, opined that K.B. died from blunt impact trauma associated with strangulation, and the manner of death was homicide. Dr. Gulino expressly rejected the defense theory that K.B.'s injuries were a result of Appellant's efforts at CPR. Additionally, the Commonwealth's pediatric child abuse expert, Dr. Christian, opined that K.B. was severely beaten and that she died of trauma. Dr. Christian categorically denied that K.B.'s injuries could have been caused by CPR. In sum, the Commonwealth presented sufficient evidence that Appellant possessed the intent to kill by using deadly force on K.B. Further, the evidence established that Appellant and the children were the only people in the home when K.B. suffered the fatal injuries. Thus, the jury properly concluded that K.B. was in the sole and exclusive custody of Appellant when she died, such that the "sole and exclusive custody" inference of guilt applied. (See id. At 29-36).

Regarding Appellant's challenge to the weight of the evidence, the court rejected Appellant's claim that the testimony was "riddled with inconsistencies and defied common sense as to the nature and extent of the injuries allegedly sustained by the two children." Rather, the testimony of Dr. Christian and Dr. Gulino was credible and credited by the jury. The jury was free to credit the testimony of the Commonwealth's experts and to reject the testimony of Dr. Hamel, who had performed the autopsy on K.B. and opined that the injuries could have been caused by CPR. Additionally, D.B.'s disclosures regarding the abuse he sustained by Appellant were consistent with his injuries. (Id. at 36-39).

Concerning Appellant's claim that the court erred in denying him a competency hearing for D.B., Appellant bore the burden of establishing "some evidence" of taint to warrant a hearing. Here, D.B. made his disclosure regarding abuse to a Department of Human Services ("DHS") caseworker while he was living at his maternal grandmother's home and was no longer living with Appellant, which helped explain D.B.'s belated disclosure. The fact that Appellant was seeking sole custody of another child he shared with Ms. Bunrout did not, on its own, support a hostile motive on Ms. Bunrout's part to coach D.B. Under the circumstances, Appellant did not satisfy his burden to warrant a taint hearing. (Id. at 39-42).

With respect to Appellant's challenge to application of the Tender Years exception to the hearsay rule, although D.B. provided differing statements in 2018 and 2019, this is attributable to a change in his circumstances, as D.B. was no longer living with Appellant when he disclosed the abuse. D.B.'s 2019 disclosure to his mother was consistent with his 2019 disclosure to a forensic interviewer. D.B. had no motive to fabricate an abuse allegation against Appellant, who D.B. considered his father. The court listened to the credible testimony of Ms. Bunrout, the DHS caseworker to whom D.B. disclosed, and D.B.'s in camera testimony. Ultimately, the court decided the content and circumstances of D.B.'s statements provided a sufficient indicia of reliability to satisfy the Tender Years exception. (Id. at 42-48).

Regarding Appellant's claim that the court should have declared a mistrial, Appellant complains that D.B. disclosed an additional fact during his trial testimony-stating that he had "passed out" from Appellant's prior abuse-that was not previously shared with Appellant. Nevertheless, any discovery violation here did not impact Appellant's cross-examination of the Commonwealth's expert, Dr. Christian, concerning the mechanics of strangulation. Further, the testimony of passing out was within the context of what was being described in all materials previously provided to the defense, even though the exact words "passed out" had not been used before. (Id. at 48-52).

Concerning the court's denial of Appellant's continuance request, Appellant's expert pediatric pathologist initially indicated that she would be available for trial. Prior to trial, however, the pathologist said she had a "health" issue, and she no longer wished to participate. The court denied Appellant's request for a continuance because the pathologist who performed the autopsy was testifying, and Appellant could cross-examine this witness about the cause of death. The court emphasized that the person who performed the autopsy was in the best position to testify about K.B.'s cause of death. Additionally, a continuance would have prejudiced the Commonwealth, where one of the Commonwealth's expert...