Pavlick v. Com.

• Citation: 27 Va.App. 219,497 S.E.2d 920
• Decision Date: 21 April 1998
• Docket Number: No. 2478-95-1,2478-95-1
• Court: Court of Appeals of Virginia
• Parties: Thomas Matthew PAVLICK, Jr. v. COMMONWEALTH of Virginia. Record

Page 920

497 S.E.2d 920

27 Va.App. 219

Thomas Matthew PAVLICK, Jr. v. COMMONWEALTH of Virginia.

Record No. 2478-95-1.

Court of Appeals of Virginia Richmond.

April 21, 1998.

Oldric J. LaBell, Jr. (Martin R. Shelton, Williamsburg, on brief), for appellant.

Daniel J. Munroe, Assistant Attorney General (Richard Cullen, Attorney General; Marla Graff Decker, Assistant Attorney General, on briefs), for appellee.

Present: FITZPATRICK, C.J., and BAKER, BENTON, COLEMAN, WILLIS, ELDER, BRAY, ANNUNZIATA, OVERTON and BUMGARDNER, JJ.

UPON A REHEARING EN BANC

ANNUNZIATA, Judge.

Thomas Matthew Pavlick, Jr. (appellant) appeals from a judgment of the Circuit Court of Gloucester County (trial court) that approved his conviction by a jury for second degree murder of his infant son (the child). Appellant contends the trial court erred (1) in admitting evidence of prior injuries sustained by the child that were not proven to have been caused by appellant, (2) in admitting evidence of the child's prior injuries without a limiting instruction as to the purpose for which that evidence could be considered, (3) in admitting portions of the autopsy report into evidence, which allegedly expressed opinion, (4) in excluding evidence of a statement attributed to Shari Pavlick (Shari), the child's mother and a witness for the Commonwealth, which he asserts would have shown her bias and state of mind or proven that she had made a prior inconsistent statement, and (5) in excluding videotapes showing appellant interacting with the child and appellant's other son.

A panel of this Court reversed, holding that the record contained no evidence from which it would have been reasonably inferred that appellant caused the child's prior rib injuries. Pavlick v. Commonwealth, 25 Va.App. 538, 543-44, 489 S.E.2d 720, 723 (1997). We hold that the record contains evidence from which the jury could reasonably have inferred that appellant caused the child's rib injuries, and we affirm appellant's conviction. Upon familiar principles, we review the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom. Martin v. Commonwealth, 4 Va.App. 438, 443, 358 S.E.2d 415, 418 (1987).

I. Facts

The child was born on June 24, 1994 and died on August 18, 1994, as a result of a head injury due to acceleration/deceleration trauma. Shari had returned to work on August 9, 1994, and appellant took care of the child and his brother while Shari was at work. On August 13, 1994, the child was having respiratory difficulties when Shari returned home from work. She attributed his symptoms to a cold and called a pediatrician. During the first week after Shari returned to work, she also noticed bruises on both sides of the child's jaw. Appellant admitted that he had made the marks with his thumbs.

On August 18, 1994, Shari went to work, leaving the two boys in the sole care of appellant. Appellant called Shari at 2:00 p.m. and told her to come home right away because he had dropped the child. Appellant called 911 and explained that he had "half-way dropped the baby." Rescue squad personnel arrived to find the child in full cardiac arrest. The child was not breathing and had no pulse. The rescue squad personnel administered CPR as they took the child to the hospital.

At the hospital, Dr. Barbara Allyson-Bryan, a pediatrician, continued CPR for about twenty minutes before pronouncing the child dead at 2:48 p.m. Dr. Allyson-Bryan looked into the child's eyes with an ophthalmoscope and observed retinal hemorrhages. Dr. Allyson-Bryan testified that retinal hemorrhages occur only in cases where there has been severe shaking trauma, and they indicate that an infant has been shaken to death. The child had numerous retinal hemorrhages which led Dr. Allyson-Bryan to suspect child abuse. She called the police.

Captain Michael Nicely of the Gloucester Sheriff's Department arrived at the hospital and confronted appellant with the doctor's finding. Nicely asked appellant if he had shaken the child. Appellant denied having shaken the child and told Nicely that he had tripped on a toy and fallen with the child in his arms. Later, at home, appellant told his wife he stepped on toys and tripped and did not know whether he had dropped the child. Appellant was arrested on August 19, 1994. The following day, he called his wife from the jail and admitted that he had shaken the child because he was "fussing."

Both Dr. Allyson-Bryan and Dr. Deborah Kay, the Assistant Chief Medical Examiner who performed an autopsy, testified that the child's injuries resulting in his death were caused by shaking and could not have been caused by any accidental means. Dr. Kay also testified about a separate recent head injury which she estimated could have occurred four to eight days prior to death. Symptoms of this earlier brain injury would have included respiratory problems of the kind Shari noted on August 13, 1994.

From the x-ray performed at the hospital, Dr. Allyson-Bryan observed the presence of rib fractures, which she opined were not caused by CPR or birth. The autopsy confirmed the x-ray findings. Dr. Kay consulted with a radiologist and determined that the rib fractures were between two and four weeks old.

Testifying for the Commonwealth, Shari stated that no one other than she and appellant had ever been alone with the child, and she denied ever having shaken the child. Testifying in his defense, appellant stated that both of the child's grandmothers had also been alone with the child. Appellant, however, did not testify when the child's grandmothers had allegedly been alone with the child. Other evidence in the case proved that only the appellant's mother, Mildred Cramsey, had visited the child during the time frame in which the rib fractures occurred, and she testified that although she had been alone with the child she had never shaken the child.

II. Prior Injuries

The trial court permitted the Commonwealth to present evidence of the child's prior injuries. Appellant asserts that the evidence of prior injuries was irrelevant and prejudicial. We disagree.

Evidence that shows or tends to show crimes or other bad acts committed by the accused is incompetent and inadmissible for the purpose of proving that the accused committed or likely committed the particular crime charged. Guill v. Commonwealth, --- Va. ----, ----, 495 S.E.2d 489, 491 (1998) (citing cases); Morse v. Commonwealth, 17 Va.App. 627, 631, 440 S.E.2d 145, 148 (1994) (citing Kirkpatrick v. Commonwealth, 211 Va. 269, 272, 176 S.E.2d 802, 805 (1970)). " '[Similar crimes evidence] merely show[s] that [an accused] has the propensity to commit the crime [charged] and this inference has been held error because it reverses his presumption of innocence.' " Id. (quoting Spence v. Commonwealth, 12 Va.App. 1040, 1045, 407 S.E.2d 916, 918 (1991)). There are, however, several exceptions to this rule of exclusion.

Evidence of other offenses is admitted if it shows the conduct and feeling of the accused toward his victim, if it establishes their prior relations, or if it tends to prove any relevant element of the offense charged. Such evidence is permissive in cases where the motive, intent, or knowledge of the accused is involved, or where the evidence is connected with or leads up to the offense for which the accused is on trial.

Kirkpatrick, 211 Va. at 272, 176 S.E.2d at 805.

The admission of evidence is within the broad discretion of the trial court. Blain v. Commonwealth, 7 Va.App. 10, 16, 371 S.E.2d 838, 842 (1988) (citing Coe v. Commonwealth, 231 Va. 83, 87, 340 S.E.2d 820, 823 (1986)). In addressing the admissibility of other crimes evidence the court must balance the probative value of the evidence of the other offenses and determine whether it exceeds the prejudice to the accused. Guill, --- Va. at ----, 495 S.E.2d at 491-92 (citing Lewis v. Commonwealth, 225 Va. 497, 502, 303 S.E.2d 890, 893 (1983)); Parker v. Commonwealth, 14 Va.App. 592, 595, 421 S.E.2d 450, 452 (1992) (citing Sutphin v. Commonwealth, 1 Va.App. 241, 245, 337 S.E.2d 897, 899 (1985)). The court's weighing of these factors is reviewable only for clear abuse of discretion. Wilkins v. Commonwealth, 18 Va.App. 293, 298, 443 S.E.2d 440, 443 (1994) (en banc ) (citing Ferrell v. Commonwealth, 11 Va.App. 380, 390, 399 S.E.2d 614, 620 (1990)).

We address, first, the admission of the evidence of the child's prior head injury. The evidence, viewed in the light most favorable to the Commonwealth, the party prevailing on this issue below, shows that the head injury suffered by the child occurred approximately one week prior to his death. The physician who performed the autopsy on the child concluded that the head subdural hematoma did not occur accidentally. The child was in appellant's sole care at the time the injury was sustained, and he admitted that he had applied force to the child's head. His wife, Shari, observed marks on the child's face. We cannot say the admission of the week-old injury evidence was an abuse of the trial court's exercise of discretion.

Next, we consider the trial court's admission of evidence of the child's rib fractures. We again view the evidence in the light most favorable to the Commonwealth. The record shows that appellant as well as his wife and mother had the opportunity to cause the rib fractures. The evidence of the rib fractures, when considered together with the evidence that appellant caused the fractures, was probative on the issue of malice. Evidence that appellant maliciously caused the rib fractures tended to prove that the child's shaking death at the hand of appellant was not an isolated incident, but, rather, was one of a series of forceful shakings, supporting a finding that the shaking death was committed with malice. Cf. Smarr v. Commonwealth, 219 Va. 168, 170, 246 S.E.2d 892, 893 (1978) (holding that where the Commonwealth presented no evidence...