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Record No. 2478-95-1





John M. Folkes, Judge
Present: Judges Baker, Annunziata and Overton
Argued at Norfolk, Virginia

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

Daniel J. Munroe, Assistant Attorney General (James S. Gilmore,
III, on briefs), for appellee.

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, Justin Pavlick (Justin). Appellant contends
that the trial court erred (1) in admitting evidence of prior
injuries sustained by Justin that were not proven to have been
caused by appellant, (2) in admitting evidence of Justin’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), Justin’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 Justin and appellant’s other son,
Matthew Pavlick (Matthew). 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

Justin 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 boys while Shari was at work. No one
except appellant, Shari, and appellant’s mother, Mildred Cramsey
(Cramsey), was ever alone with Justin. On August 13, 1994,
Justin 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 Justin’s jaw.
Appellant admitted that he had made these 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 Justin. Appellant called 911 and explained that he
had "half?way dropped the baby." Rescue squad
personnel arrived to find Justin in full cardiac arrest. Justin
was not breathing and had no pulse. The rescue squad personnel
administered CPR as they took Justin to the hospital.

At the hospital, Dr. Barbara Allyson-Bryan, a pediatrician,
continued CPR for about twenty minutes before pronouncing Justin
dead at 2:48 p.m. Dr. Allyson-Bryan looked into Justin’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. Justin 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 Justin.
Appellant denied shaking Justin and told Nicely that he had
tripped on a toy and fallen with Justin in his arms. Later, at
home, appellant told his wife he stepped on toys and tripped and
did not know whether he had dropped Justin. Appellant was
arrested on August 19, 1994. The following day, he called his
wife from the jail and admitted that he had shaken Justin because
he was "fussing."

Both Dr. Allyson-Bryan and Dr. Deborah Kay, the Assistant
Chief Medical Examiner who performed an autopsy, testified that
Justin’s injuries resulting in his death were caused by shaking
and could not have been caused by any accidental means. Dr. Kay
estimated that a recent head injury occurred approximately one
week before but 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.
While Justin’s body was still in Dr. Allyson?Bryan’s custody,
she had it x?rayed and observed rib fractures. She opined that
the fractures 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.

II. Prior Injuries

The trial court permitted the Commonwealth to present evidence
of Justin’s prior injuries. Appellant asserts that the evidence
of prior injuries was irrelevant and prejudicial. He argues that
it was reversible error to permit the jury to consider any
evidence of the prior injuries.

The trial court admitted two instances of prior injury. We
first address the head injury that the medical experts concluded
occurred approximately one week prior to Justin’s death. Dr. Kay
performed an autopsy on Justin’s body. Dr. Kay concluded that the
head subdural hematoma occurred approximately one week prior to
Justin’s death and that the injury did not happen accidentally.
Justin was in appellant’s sole care at that time. Appellant
admitted that he had applied force to Justin’s head, and Shari
observed marks on Justin’s face caused by that force.

The admissibility 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), and we cannot say that admission
of the week?old head injury evidence was an abuse of trial court
discretion. It was not error to permit the jury to consider the
week?old head injury evidence.

Next we consider the trial court’s admission of Justin’s two?
to four?week?old rib fractures. Dr. Allyson?Bryan first
discovered this evidence by reviewing x?rays. The fractures were
confirmed by a radiologist and by Dr. Kay’s autopsy. Although the
record reveals that appellant had the opportunity to cause the
rib fractures, at least two other persons had the same
opportunity, Shari and Cramsey. We have reviewed the record and
find no evidence from which it may reasonably be inferred that
appellant was the criminal agent who caused Justin’s rib
fractures. The prosecution merely showed that appellant had the
opportunity to cause the rib fractures, as did others, and that
the rib fractures occurred. Under the circumstances, the evidence
was prejudicial and had no probative value upon the question of
whether a criminal act of appellant caused Justin’s death. See
Smarr v. Commonwealth, 219 Va. 168, 246 S.E.2d 892 (1978).
Therefore, we conclude that the trial court erred when it
permitted the jury to consider the rib?fracture evidence.

The Commonwealth argues that even if that evidence should have
been excluded, the remaining evidence was so substantial that the
verdict would have been the same and, therefore, the error is
harmless. We disagree. While an error committed in the trial of a
criminal case does not automatically require reversal of an
ensuing conviction, Code ? 8.01?678,
once error is established it is presumed to be prejudicial. Beverly
v. Commonwealth
, 12 Va. App. 160, 163?64, 403 S.E.2d 175,
177 (1991). The burden then shifts to the Commonwealth to show
that the error was non?prejudicial. Id. at 164, 403
S.E.2d at 177. A criminal case will be reversed if the
Commonwealth fails to overcome the presumption of prejudice and
fails to show that the error is harmless beyond a reasonable
doubt. Jones v. Commonwealth, 218 Va. 732, 737, 240 S.E.2d
526, 529 (1978); Beverly, 12 Va. App. at 164, 403 S.E.2d
at 177; Scaggs v. Commonwealth, 5 Va. App. 1, 6, 359
S.E.2d 830, 832 (1987).

Here, the jury found appellant guilty of second degree murder.
To support that verdict, the Commonwealth had to prove that the
act was committed with malice. Perkins v. Commonwealth,
215 Va. 69, 73, 205 S.E.2d 385, 387 (1974). Without the
rib?fracture evidence, we cannot say beyond a reasonable doubt
that the jury would have concluded that appellant killed Justin
with malice when appellant shook him on the date of Justin’s

Code ? 18.2?33
provides that an accidental killing accompanied by some felonious
act, other than those specified in Code ?? 18.2?31 and
18.2?32, will support a second degree murder conviction. In such
case, malice is imputed and raises an accidental homicide to the
level of second degree murder. See Heacock v.
, 228 Va. 397, 403-04, 323 S.E.2d 90, 94 (1984).
The question which remains to be submitted to the fact finder is
whether appellant’s conduct constituted a felonious act which,
under the circumstances shown, would permit malice to be imputed
to appellant. We cannot say beyond a reasonable doubt that the
verdict would not have been of a lesser offense (e.g.,
manslaughter) if the rib?fracture evidence had been excluded.[1] Accordingly, we reverse and
remand this case to the trial court for such further proceedings
as the Commonwealth may be advised.

In the event the Commonwealth elects to proceed further, we
review the other issues appellant raises in this appeal.

III. The Limiting Instruction

Appellant’s failure to proffer a limiting instruction prevents
this Court from determining whether the trial court erred by
"failing" to grant such instruction. We also find no
reason to apply the ends of justice exception. Therefore, that
issue will not be considered in this appeal. See Rule

IV. Admission of the Autopsy Report

Appellant contends that portions of the autopsy report that
disclosed opinions of "other medical personnel" were
erroneously shown to the jury. That issue is raised for the first
time on appeal. To be considered on appeal, an objection must be
timely made to the trial court and the claimed error must be
stated with specificity. See Marlowe v. Commonwealth,
2 Va. App. 619, 621, 347 S.E.2d 167, 168 (1986). Appellant failed
to state an appropriate objection to the autopsy report.
Moreover, the record clearly discloses that the autopsy report
merely confirmed the testimony of the medical authorities. We
also find no reason to apply the ends of justice exception.
Accordingly, we will not consider that issue.

V. Hearsay Evidence

Appellant further asserts that the trial court erred by
refusing to permit him to prove by Cramsey’s testimony that Shari
had made out?of?court statements which would show her bias,
state of mind, and prior inconsistent testimony when testifying
on behalf of the Commonwealth. On cross?examination, Shari was
asked whether she had in effect stated to Cramsey that she had to
"pretty much go along with the authorities now because they
could take Matthew." Shari denied making any statement to
that effect.

Appellant asked Cramsey to "tell the Court and jury
whether you had any conversation [with Shari] regarding Matthew
and Matthew staying with her and so on[.]" Cramsey
responded, "I really don’t know." Counsel for appellant
further attempted to draw information from Cramsey by asking,
"Did you and [Shari] have any conversation about what
[Shari] had to do for the authorities or anything like
that?" The Commonwealth objected that the question called
for hearsay evidence. The trial court advised defense counsel
that he did not understand the question. Counsel responded that
the question was designed to show Shari’s state of mind. Counsel
said, "I think ?? we’re trying to introduce it more, not
to persuade the trier of fact that the statement is true, but
that [Shari's] state of mind was such that [Shari] might then
make a statement that [Shari] might not otherwise make, and
[Shari] has testified in this matter." The trial court
sustained the Commonwealth’s objection. The record fails to show
how Cramsey would have responded to the question.

If shown to be relevant to the case, out?of?court utterances
are admissible to show the state of mind of the declarant. United
Constr. Workers v. Laburnum Constr. Corp.
, 194 Va. 872, 876,
75 S.E.2d 694, 709 (1953), aff’d 347 U.S. 656 (1954).
However, appellant has not shown by this record that Cramsey was
prepared to offer testimony relevant to an issue presented by the
trial. Moreover, he failed to avail himself of the opportunity
offered by the trial judge to permit Cramsey to testify to
"what she observed about [Shari]." The admissibility of
evidence is a matter to be determined by the trial judge. Evans?Smith
v. Commonwealth
, 5 Va. App. 188, 196, 361 S.E.2d 436, 441
(1987); see also Gottlieb v. Commonwealth, 126 Va.
807, 812, 101 S.E. 872, 874 (1920). On this record, we cannot say
that the trial court was plainly wrong or abused its discretion
in its ruling on this issue.

VI. The Videotapes

The admissibility of evidence is within the broad discretion
of the trial court, and a ruling will not be disturbed on appeal
in the absence of an abuse of discretion. James v.
, 18 Va. App. 746, 753, 446 S.E.2d 900, 904
(1994). The trial court viewed the videotapes during a pre?trial
motion and found them inadmissible in this case. We find no abuse
of discretion in the trial court’s ruling based upon the purpose
for which appellant offered the videotapes.

For the reasons stated, the judgment of the trial court is
reversed and this case is remanded to the trial court for such
further action as the Commonwealth may be advised.

Reversed and remanded.


Annunziata, J., concurring in part, and dissenting in part.

I believe that the trial court properly admitted the evidence
of the rib fractures that the child suffered two to four weeks
prior to his death. I respectfully dissent from the majority’s
holding to the contrary. With that exception, I concur in the
majority opinion.

The evidence in this case established that appellant shook his
seven-week-old child to death. Expert testimony established that
the retinal hemorrhaging and subdural hematoma suffered by the
child concomitant with his death pointed to a single cause of
death??an intentional and forceful shaking. The evidence of
opportunity pointed to a single criminal agent??appellant.
These facts having been established, the issue is whether
appellant is guilty of second degree murder or manslaughter. The
determinative factor is whether appellant acted with malice.

In addition to the evidence showing that appellant shook his
child to death, the Commonwealth presented evidence which showed
that appellant had forcefully shaken his child one week prior to
his death, causing a prior subdural hematoma. The Commonwealth
also presented evidence which showed that the child’s ribs had
been fractured approximately two to four weeks prior to his
death. One of the Commonwealth’s medical experts testified that
the rib fractures resulted from the child having been squeezed
with excessive force, and that evidence led the medical expert to
conclude that the child had been previously shaken. Indeed, the
Commonwealth’s experts diagnosed the child as having suffered
Shaken Baby Syndrome, a condition exhibiting the triad of
injuries the child had suffered in the month leading up to his

Testifying for the Commonwealth, the child’s mother 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, in addition to
him and his wife, both of the child’s grandmothers had been alone
with the child. Appellant’s testimony, however, did not establish
when the child’s grandmothers had allegedly been alone with the
child. Other evidence in the case showed that the paternal
grandmother’s visit coincided with the time frame during which
the rib fractures occurred. However, the paternal grandmother
testified that, while she had been alone with the child, she had
never shaken the child. The evidence showed that the timing of
the maternal grandmother’s visit did not coincide with the time
frame during which the rib fractures occurred.
The Commonwealth relied on the child’s prior injuries–his
week-old subdural hematoma and his rib fractures–to support its
theory of the case, viz., that the fatal shaking was not
an isolated incident but, rather, one of a series of forceful
shakings committed by appellant. The Commonwealth argued to the
jury that such a pattern pointed to a single conclusion, viz.,
that appellant acted with malice when he committed the fatal

The relevance of the rib fractures to the Commonwealth’s
theory of the case was dependent on proof that appellant
inflicted the rib fractures.[3] Had the Commonwealth presented
no evidence linking appellant to the rib fractures, then the
evidence of the rib fractures would, manifestly, have had no
probative value to the Commonwealth’s theory of the case. See
Smarr v. Commonwealth, 219 Va. 168, 170, 246 S.E.2d 892,
893 (1978).

Contrary to appellant’s contention, however, the determination
whether the rib-fracture evidence was of probative value to the
Commonwealth’s case was not contingent upon the Commonwealth
proving, or the trial court finding, by a particular standard of
proof that appellant did, in fact, inflict the rib fractures.
Rather, as the majority opinion correctly states, the
Commonwealth was required only to present evidence from which the
trier of fact could "reasonably . . . infer[]" that
appellant inflicted the rib fractures. See also Floyd
v. Commonwealth
, 219 Va. 575, 583, 249 S.E.2d 171, 175 (1978)
(record must contain evidence from which conditional fact may
"reasonably be inferred" by trier of fact); Huddleston
v. United States
, 485 U.S. 681, 689-90 (1988)
("[S]imilar act evidence is relevant only if the jury can
reasonably conclude that . . . the defendant was the actor. . . .
[T]he trial court neither weighs credibility nor makes a finding
that the Government has proved [that] conditional fact by a
preponderance of the evidence. The court simply examines all the
evidence in the case and decides whether the jury could
reasonably find the conditional fact . . . by a preponderance of
the evidence.").

I disagree with the majority’s conclusion that the record
contains "no evidence from which it may reasonably be
inferred that appellant was the criminal agent who caused [the
child's] rib fractures." I believe that this case is easily
distinguished from Smarr, upon which the majority relies.
In Smarr, the Commonwealth "merely showed that the
[prior] injuries had occurred, and nothing more." 219
Va. at 170, 246 S.E.2d at 893 (emphasis added). In the present
case, to the contrary, evidence was admitted from which the jury
could reasonably infer, once it determined the credibility of the
testimony, that appellant inflicted the child’s rib injuries. The
record established that while the child’s mother and the child’s
paternal grandmother were the only individuals, other than
appellant, who had been alone with the child during the time
frame in which the rib fractures were inflicted, both testified
that they had never shaken the child. In my view, given this
evidence, and leaving the issue of credibility to the jury, as
the trial court was required to do, see Huddleston,
485 U.S. at 690?91, the jury reasonably could have concluded
that appellant inflicted the child’s rib fractures.

To be sure, admissibility of the rib-fracture evidence still
depended on its probative value outweighing the prejudice to
appellant. See Woodfin, 236 Va. at 95, 372 S.E.2d
at 381. My view of the balance to be struck is at odds with that
of the majority, which finds the rib?fracture evidence to be of
no probative value. I disagree. The evidence of the rib
fractures, when considered together with evidence linking the
fractures to appellant, was probative on the issue of malice. The
rib?fracture evidence tended to show, as the Commonwealth
argued, that the shaking death of the child at the hand of
appellant was not an isolated incident, suggestive, perhaps, of a
non?malicious outburst, but, rather, that the shaking death was
one of a series of forceful shakings, supporting a finding that
the shaking death was committed with malice. I further believe
that the rib?fracture evidence was probative, see Woodfin,
236 Va. at 95, 372 S.E.2d at 381, and that it was not outweighed
by any improper prejudicial effect; indeed, I find nothing in the
record to indicate that it provided an improper basis for the
jury’s decision. The only prejudice suffered by appellant was
that the admission of the rib?fracture evidence made it more
likely that he would be convicted. See Stockton v.
, 227 Va. 124, 143, 314 S.E.2d 371, 383 (1984).
Such prejudice, of course, does not justify the exclusion of the
evidence. Id.

Accordingly, I would uphold the trial court’s admission of the
rib?fracture evidence and affirm appellant’s conviction.




[1] We note, however, that without
the rib?fracture evidence, the remaining evidence is sufficient
to support a homicide guilty verdict.

[2] Indeed, the Commonwealth even
suggested to the jury that the evidence of the fatal shaking
alone might support a manslaughter verdict. The Commonwealth’s
theory of the case, that appellant had acted with malice, was
clearly premised on the evidence of the child’s prior injuries.

I find nothing to support the apparent view of the majority
that the Commonwealth was proceeding under a theory of second
degree felony homicide. See Code ? 18.2-33. The
Commonwealth did not attempt to prove that the fatal shaking was
itself a felony from which the required element of malice could
have been imputed to appellant. And, indeed, the jury was never
instructed on second degree felony homicide.

[3] Evidence
is relevant if it has "any tendency to establish a fact
which is properly at issue." Wise v. Commonwealth, 6
Va. App. 178, 187, 367 S.E.2d 197, 202-03 (1988); see
C. Friend, The Law of Evidence in Virginia
? 11-1 (4th ed.
1993) ("evidence is relevant if it tends to establish the
proposition for which it is offered. If it has any
probative value, however slight–i.e., if it has any tendency
whatsoever to prove or disprove the point upon which it is
introduced–it is relevant"). Although generally
inadmissible, evidence tending to show an accused committed other
bad acts at other times is admissible "`if it tends to prove
any relevant element of the offense charged,’" so long as
its "`legitimate probative value outweighs the incidental
prejudice to the accused.’" Woodfin v. Commonwealth,
236 Va. 89, 95, 372 S.E.2d 377, 380-81 (1988) (citations

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