Opinion
Record No. 3152-03-4.
July 12, 2005.
Appeal from the Circuit Court of Stafford County, James W. Haley, Jr., Judge.
Timothy W. Barbrow (Law Offices of Timothy Barbrow, on brief), for appellant.
Kathleen B. Martin, Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.
Present: Judges Elder, Kelsey and McClanahan.
MEMORANDUM OPINION
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
Cynthia Lynn Welch (appellant) appeals from her jury trial conviction for first-degree murder of her infant son, Terrance. On appeal, she contends the trial court erroneously denied her request for appointment of an expert witness in the field of pediatric medicine and that the evidence was insufficient to support her murder conviction. We hold the trial court's refusal of her request for appointment of a second medical expert was not error. Further, we conclude the evidence was sufficient to prove she acted with malice rather than merely with criminal negligence, but we conclude the evidence was insufficient to prove premeditation. Thus, we reverse the conviction for first-degree murder and remand for retrial for an offense no greater than second-degree murder if the Commonwealth be so advised.
Appellant also was convicted for child cruelty and child neglect. Those convictions are not before us in this appeal.
I. A. APPOINTMENT OF A SECOND EXPERT
The Constitution guarantees a criminal defendant "'the basic tools of an adequate defense or appeal.'" Ake v. Oklahoma, 470 U.S. 68, 77, 105 S. Ct. 1087, 1093, 84 L. Ed. 2d 53 (1985) (quoting Britt v. North Carolina, 404 U.S. 226, 227, 92 S. Ct. 431, 433, 30 L. Ed. 2d 400 (1971)). The Supreme Court of Virginia has held that this constitutional principle requires, in some circumstances, that a court appoint a non-psychiatric expert to assist the defendant with his or her defense. Husske v. Commonwealth, 252 Va. 203, 211, 476 S.E.2d 920, 925 (1996).
"Thus, while the Court has not held that a State must purchase for the indigent defendant all the assistance that his wealthier counterpart might buy, see Ross v. Moffitt, 417 U.S. 600, 94 S. Ct. 2437, 41 L.Ed.2d 341 (1974), it has often reaffirmed that fundamental fairness entitles indigent defendants to 'an adequate opportunity to present their claims fairly within the adversary system,' id., at 612, 94 S. Ct. 2437."
Lenz v. Commonwealth, 261 Va. 451, 461, 544 S.E.2d 299, 304-05 (2001) (quoting Ake, 470 U.S. at 77, 105 S. Ct. at 1093).
[A]n indigent defendant who seeks the appointment of an expert witness, at the Commonwealth's expense, must demonstrate that the subject which necessitates the assistance of the expert is "likely to be a significant factor in his defense," and that he will be prejudiced by the lack of expert assistance. An indigent defendant may satisfy this burden by demonstrating that the services of an expert would materially assist him in the preparation of his defense and that denial of such services would result in a fundamentally unfair trial.
Husske, 252 Va. at 211-12, 476 S.E.2d at 925.
The defendant bears the burden of showing a "particularized need" for expert assistance based on the circumstances of the case, and the question of whether a defendant has made that showing rests within the discretion of the trial court. Barnabei v. Commonwealth, 252 Va. 161, 171, 477 S.E.2d 270, 276 (1996) (citing Husske, 252 Va. at 211-12, 476 S.E.2d at 925-26); see Commonwealth v. Sanchez, 268 Va. 161, 166-67, 597 S.E.2d 197, 199-200 (2004) (discussing sufficiency of proffer to establish "particularized need"). Therefore, we will not disturb the decision of the trial court unless it is plainly wrong or without evidence to support it. Naulty v. Commonwealth, 2 Va. App. 523, 527, 346 S.E.2d 540, 542 (1986).
Here, the trial court granted appellant's initial motion for appointment of a particular expert, Dr. Jack Daniel, a forensic pathologist, to review the infant's medical records and determine whether he may have had a medical condition that interfered with his ability to absorb nutrients. Although appellant indicated she might later seek the appointment of an additional expert with a greater level of expertise, the court warned her, "if you are going to use an expert, you have to use Daniel . . . because I don't want to pay another expert to review the same records."
Appellant later moved the court for appointment of a pediatric specialist and proffered Dr. Daniel's written opinion that "evaluation of this case by an independent pediatric specialist with significant direct professional experience in the clinical diagnosis and management of FTT, failure to thrive, would materially enhance the understanding of this matter." Appellant's counsel said Dr. Daniel had "represented to [him]" that he believed an organic reason existed for the infant's failure to thrive but that, based on his lack of expertise in pediatrics, "he's not comfortable that he's adequate to [render such an opinion]." Absent from Dr. Daniel's report was a statement that he personally was not competent to render an opinion regarding the origin of Terrance's failure to thrive. The trial court determined after examining Dr. Daniel that he was competent to render such an opinion, and Dr. Daniel did, in fact, render such an opinion at trial.
Appellant obtained, at the Commonwealth's expense, expert medical testimony from Dr. Daniel that was adequate to dispute the Commonwealth's theory that Terrance's death resulted from appellant's intentional starvation of him. Thus, here, as inWinston v. Commonwealth, 268 Va. 564, 604 S.E.2d 21 (2004), "[a]lthough not receiving the particular expert [s]he requested, [appellant], in fact, received the services [s]he requested. While the Commonwealth is required to provide adequate expert assistance to indigent defendants in certain circumstances, it is not required to provide them with 'all assistance that a non-indigent defendant may purchase.'" Id. at 581, 604 S.E.2d at 30-31 (quoting Husske, 252 Va. at 211, 476 S.E.2d at 925) (emphases added); see also Hodges v. Commonwealth, 26 Va. App. 43, 54-55, 492 S.E.2d 846, 852 (1997) (holding no error where some experts were provided and ones provided were able to give testimony that defendant claimed he needed from additional expert not provided).
For these reasons, we hold the trial court's denial of appellant's motion for a second expert did not deny appellant "'the basic tools of an adequate defense,'" Ake, 470 U.S. at 77, 105 S. Ct. at 1093 (quoting Britt, 404 U.S. at 227, 92 S. Ct. at 433), and, thus, did not constitute an abuse of discretion.
B. SUFFICIENCY OF EVIDENCE TO PROVE FIRST-DEGREE MURDER
Appellant contends the evidence was insufficient to prove first-degree murder and established manslaughter at most. We hold the evidence, viewed in the light most favorable to the Commonwealth, supported a finding that appellant acted with malice rather than merely with criminal negligence, but we conclude the evidence was insufficient to prove premeditation. Thus, we reverse the conviction for first-degree murder.
When considering the sufficiency of the evidence on appeal in a criminal case, we view the evidence in the light most favorable to the Commonwealth, granting to the evidence all reasonable inferences fairly deducible therefrom. Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975). The credibility of a witness, the weight accorded the testimony, and the inferences to be drawn from proven facts are matters to be determined by the fact finder. Long v. Commonwealth, 8 Va. App. 194, 199, 379 S.E.2d 473, 476 (1989). The conclusions of the fact finder on issues of witness credibility may be disturbed on appeal only if this Court finds that the witness' testimony was "inherently incredible, or so contrary to human experience as to render it unworthy of belief." Fisher v. Commonwealth, 228 Va. 296, 299-300, 321 S.E.2d 202, 204 (1984). "This Court does not substitute its judgment for that of the trier of fact, and the trial court's judgment will not be set aside unless plainly wrong or without evidence to support it." Hunley v. Commonwealth, 30 Va. App. 556, 559, 518 S.E.2d 347, 349 (1999) (citation omitted).
Any element of a crime may be proved by circumstantial evidence, e.g., Servis v. Commonwealth, 6 Va. App. 507, 524, 371 S.E.2d 156, 165 (1988), provided the evidence as a whole "is sufficiently convincing to exclude every reasonable hypothesis except that of guilt," Coleman v. Commonwealth, 226 Va. 31, 53, 307 S.E.2d 864, 876 (1983). "While no single piece of evidence may be sufficient, the 'combined force of many concurrent and related circumstances, each insufficient in itself, may lead a reasonable mind irresistibly to a conclusion.'" Stamper v. Commonwealth, 220 Va. 260, 273, 257 S.E.2d 808, 818 (1979) (quoting Karnes v. Commonwealth, 125 Va. 758, 764, 99 S.E. 562, 564 (1919)).
Code § 18.2-32 provides that "[m]urder . . . by . . . starving, or by any willful, deliberate, and premeditated killing . . . is murder of the first degree. . . ." Killing with malice but without premeditation and deliberation is murder in the second degree. Perricllia v. Commonwealth, 229 Va. 85, 91, 326 S.E.2d 679, 683 (1985). Malice, an essential element of all grades of murder, "is the touchstone by which murder and manslaughter cases are distinguished." Essex v. Commonwealth, 228 Va. 273, 280, 322 S.E.2d 216, 219-20 (1984) (citation omitted).
1. EVIDENCE OF MALICE
Malice may be either express or implied by conduct. Pugh v. Commonwealth, 223 Va. 663, 668, 292 S.E.2d 339, 341 (1982). "Express malice is evidenced when 'one person kills another with a sedate, deliberate mind, and formed design.' Implied malice exists when any purposeful, cruel act is committed by one individual against another without any, or without great provocation. . . ." Id. (quoting M'Whirt's Case, 44 Va. (3 Gratt.) 594, 604 (1846)). Implied malice may be inferred from "conduct likely to cause death or great bodily harm, wilfully or purposefully undertaken." Essex, 228 Va. at 281, 322 S.E.2d at 220.
"[W]hether a defendant acted with malice is generally a question to be decided by the trier of fact." Pugh, 223 Va. at 667, 292 S.E.2d at 341. "In making the determination whether malice exists, the fact-finder must be guided by the quality of the defendant's conduct, its likelihood of causing death or great bodily harm, and whether it was volitional or inadvertent. . . ."Essex, 228 Va. at 282, 322 S.E.2d at 221. If
a killing results from negligence, however gross or culpable, and the killing is contrary to the defendant's intention, malice cannot be implied. In order to elevate the crime to . . . murder, the defendant must be shown to have wilfully or purposefully, rather than negligently, embarked upon a course of wrongful conduct likely to cause death or great bodily harm.
Id. at 280-81, 322 S.E.2d at 220. "[I]f death is the direct consequence of the malicious omission of the performance of a duty, such as of a mother to feed her child, this is a case of murder; but if the omission is not willful, and arose out of neglect only, it is manslaughter." Biddle v. Commonwealth, 206 Va. 14, 20, 141 S.E.2d 710, 714 (1965).
In Biddle, relied upon by appellant, the Supreme Court reversed a conviction for first-degree murder in a case involving failure to feed an infant. Id. at 21, 141 S.E.2d at 715. The defendant in Biddle, a twenty-five-year-old mother of six, told police her husband frequently claimed none of the children was his. Id. at 15-16, 141 S.E.2d at 711-12. She said that she did not feed the infant when she and her husband were not getting along and that "during the period of approximately a month prior to the baby's death, several days elapsed between feedings."Id. at 16, 141 S.E.2d at 712. She said that, because her husband claimed none of the children was his, "she 'figured' he wouldn't care if the baby died." Id. On the infant's death at approximately three months of age, it weighed less than it had at birth, it was dehydrated, and its intestinal tract and stomach were entirely empty. Id. at 19, 141 S.E.2d at 714. The defendant admitted she knew the baby had lost weight but that she had not taken the baby to a doctor. Id. The Court held that the evidence showed the defendant "neglected the baby and was careless and indifferent in the performance of her duties not only to the baby, but to other members of her family as well," and that the evidence failed to "prove beyond a reasonable doubt that [the] defendant willfully or maliciously withheld food and liquids from the baby." Id. at 21, 141 S.E.2d at 715. As a result, it reversed her conviction for first-degree murder. Id.
In appellant's case, as in Biddle, the record is replete with evidence that appellant failed to feed Terrance sufficient quantities of food and sometimes went for a period of days without feeding him. The defendant in Biddle said "she 'figured' [her husband, the baby's father,] wouldn't care if the baby died." Id. at 16, 141 S.E.2d at 712. However, no evidence established the defendant in Biddle knew the infant's death was imminent, and the Supreme Court's reversal of her conviction constituted an implicit conclusion that the proof was insufficient to establish she "willfully or purposefully" engaged in "conduct likely to cause death or great bodily harm," as required to prove implied malice. Essex, 228 Va. at 281, 322 S.E.2d at 220. In appellant's case, in contrast to Biddle, the evidence established (1) that others warned appellant about the precarious state of Terrance's health shortly before he died, (2) that appellant ignored repeated pleas to obtain appropriate medical treatment for Terrance, and (3) that even an inexperienced parent would have known that Terrance was very ill and needed medical attention in the days before his death. Based on this evidence, the trier of fact was entitled to reject appellant's testimony and other evidence that she fed Terrance properly and that she did not act maliciously in failing to properly feed or obtain medical treatment for him. It was also entitled to reject the testimony of her expert, forensic pathologist Jack Daniel, whose opinion that Terrance suffered from an underlying organic disorder was based in large part on the statements of appellant, see Street v. Street, 25 Va. App. 380, 388-89, 488 S.E.2d 665, 668-69 (1997) (en banc) (recognizing trier of fact is entitled to reject expert opinion based "sole[ly]" on information communicated by litigant), and a possible misunderstanding of the statements about Terrance's feeding behavior made by babysitter Gloria Skinner. The remaining evidence, viewed in the light most favorable to the Commonwealth, supported a finding that appellant's behavior, taken as a whole, established at least implied malice and, thus, was sufficient to prove murder rather than manslaughter.
Terrance was appellant's third child. Appellant admitted that her second child, A., had feeding problems that caused frequent vomiting and failure to gain weight at an appropriate rate. Appellant reported these problems to Dr. Cynthia Horner, A.'s pediatrician, who was also Terrance's pediatrician, and Dr. Horner successfully assisted appellant in changing A.'s formula and improving her weight gain. Appellant admitted she knew that in A.'s case, A.'s weight loss or insufficient weight gain was caused by the throwing up.
Although appellant claimed at trial that she thought Terrance's weight loss and eventual death also stemmed from his throwing up or spitting up, she admitted she never told Dr. Horner that Terrance had any such problems. Dr. Horner testified that if an infant experienced vomiting or reflux of sufficient severity "to create that kind of weight . . . drop-off of the [growth chart] curve [that Terrance had exhibited], it would be so dramatic" that she could not "imagine a parent not bringing it up" "as one of their primary complaints," just as appellant had done in the case of her second child, A. In multiple interviews with Detective Jim Truslow and Child Protective Services (CPS) Investigator Pat Smidt — in which the two repeatedly questioned appellant about Terrance's eating habits, medical conditions, death from malnutrition, and the lack of any food in his digestive tract on autopsy — appellant never told Truslow or Smidt that Terrance had any problems with throwing up or spitting up. To the contrary, appellant said Terrance was "a good burper" and indicated as his only medical problems that he had colic and respiratory difficulties.
Further, the evidence established that when Terrance died, he was severely emaciated and dehydrated and had no food anywhere in his digestive tract. The medical evidence established that even a child with severe reflux or vomiting would keep some food down so that something would be found in his digestive tract. Dr. Marcella Fierro, Virginia's Chief Medical Examiner, opined that "no disease process" would account for the complete "absence of the residua of food" throughout the digestive tract, including in the bowel, and that this absence of food was a clear "indicator of not being fed." Appellant admitted to her cellmate after her arrest that, when Terrance died, "it could have been even a couple of days" since he had been fed. Gloria Skinner fed Terrance about 8:00 p.m. on November 25, 2001, and he died no later than noon on November 27, 2001. During that interim period, Terrance was in appellant's care. Although appellant claimed to have fed him during that period of time, her admissions to her cellmate and the complete absence of food in Terrance's digestive tract permitted the finder of fact to reject her testimony and conclude that she did not, in fact, feed Terrance after she picked him up from Gloria Skinner at 9:30 p.m. on Sunday, November 25, 2001.
Additional evidence permitted a finding that this failure to feed was both repeated and intentional. Drs. John Fernandes, Kent Hymel and Marcella Fierro all opined the evidence established that Terrance's advanced state of malnutrition and ultimate starvation occurred over time and did not result solely from the events of the last few days of his life. Drs. Horner and Hymel also both opined that Terrance's rapid gain of five ounces in the two days between November 6 and 8, 2001 — after Dr. Horner diagnosed Terrance with failure to thrive and gave Terrance's father "very specific instructions" regarding what, when, and how much to feed him — confirmed that Terrance was physiologically capable of gaining weight when fed sufficient quantities and tended to exclude the possibility that his body was experiencing any difficulties absorbing the type of protein contained in the new formula Dr. Horner recommended.
Gloria Skinner, who cared for Terrance almost every weekend and on other days, as well, beginning just two weeks after his birth, testified that when Terrance first arrived at her home each time, he would eat "like he was starving to death, but . . . it couldn't . . . all go down," and milk would "drool . . . out of his mouth." Skinner said that, at Terrance's later feedings, after he had been with her for some time, his appetite and drooling "would not be as bad as at the first feeding when he got to [her]." Skinner said that, with the exception of the weekend before his death, Terrance did not vomit while he was with her and that, even with his excessive drooling, he routinely kept down half of what she fed him. Dr. Hymel agreed that if a child was with a caretaker who was not providing the child with food on a regular basis, when placed with a caregiver attempting to feed it on a regular schedule, the child would be hungry, would attempt to eat voraciously, and as a result of taking in too much formula at once, could have formula coming out of its mouth.
Finally, appellant admitted to her cellmate that she and Terrance's father, Terrance Gibson, Sr. (Gibson), used drugs, including ecstasy, "[q]uite frequently," that "they were just always high" and "didn't want to deal with [the baby]," and that the baby would "sometimes" "go" "a couple of days" without being fed. An acquaintance of appellant's, who saw her use drugs in Terrance's presence on about five occasions, said she observed appellant with Terrance at her house "for a period of hours" on those five occasions and never saw appellant feed Terrance.
The evidence supported a finding that by November 8, 2001, appellant knew Terrance's failure to gain weight at an appropriate rate was an issue recognized by his pediatrician, confirming Gloria Skinner's repeated suggestions to appellant that Terrance was not growing or gaining weight, especially when compared to the quantities of food Skinner was feeding him. Dr. Scott Ross, who examined Terrance that day, testified unequivocally that he told appellant Terrance's weight gain was "a reassuring sign" but emphasized that "we need to monitor [him]." Dr. Ross gave appellant specific instructions regarding follow-up for Terrance's respiratory and feeding difficulties. He instructed her to "call if [there was] worsening or no improvement in three to five days" or, if Terrance's condition improved, to return in seven to ten days so that Terrance's growth could be monitored and he could receive required immunizations.
Appellant did not take Terrance to his scheduled follow-up appointment on November 15, claiming she had to work, and she admitted knowing by the evening of November 15 that Gibson also did not take Terrance to that appointment. She later told a nurse in the pediatrician's office that Terrance did not attend his scheduled November 15 appointment because he was "too sick" from his respiratory condition. Although appellant did not work on Monday, November 19, or Monday, November 26, and often worked only in the evenings on the days she did work, the doctor's office had no record that appellant made any attempt to reschedule Terrance's appointment before Terrance died on November 27, 2001, almost three weeks after his last examination and almost two weeks after his scheduled follow-up appointment.
Additional evidence established that Terrance's physical condition continued to deteriorate during this period of time. Gloria Skinner, an experienced mother of nine who had primary physical custody of appellant's second child, A., expressed her concern about Terrance's condition to appellant repeatedly during the last few weeks of his life, but appellant failed to take any action. Skinner was so concerned about Terrance's condition and appellant's failure to take any action that, during the week before Terrance's death, Skinner went to her pastor to sign and have notarized a paper that said "if something happened to the baby that [Skinner] wouldn't be responsible, because [she] had been telling [appellant] to take the baby to the doctor, because there was something wrong with the baby." Skinner said that when she kept Terrance from November 23 to 25, the weekend before his death, he appeared "pale" and "weak," and on Sunday evening shortly before appellant arrived to pick Terrance up, he threw up rather than spit up "all his food." Skinner told appellant Terrance had thrown up all his food, and emphasized to appellant that she thought Terrance was very sick, "that he might not make it until Monday," and that she thought appellant should take Terrance to the hospital immediately. Appellant responded that she did not have to work the next day and would try to schedule an appointment with Terrance's doctor. Skinner reminded appellant that she could take Terrance to the hospital if she was unable to schedule a doctor's appointment.
Skinner tried repeatedly but without success to reach appellant on Monday. At 7:00 p.m., appellant called Skinner and asked if Skinner could baby-sit that evening. When Skinner learned that appellant had not yet obtained any medical treatment for Terrance, she refused to baby-sit and again urged appellant to take him to the hospital. Appellant told Skinner she would do so. Skinner called appellant at about 10:00 p.m. and again urged her to take Terrance to the hospital. Although appellant told Skinner, "[W]e're going [to the hospital] now," the evidence established that she failed to heed Skinner's repeated warnings, took ecstasy instead of going to the hospital, and intentionally failed to feed Terrance, which resulted in his death about twelve hours later.
Consistent with Skinner's testimony about her repeated warnings to appellant was the testimony of Dr. Hymel, who said that Terrance's advanced state of malnutrition prior to his death would have been "[e]xtremely obvious." Dr. Hymel opined "[t]here was absolutely no doubt in [his] mind that the average even inexperienced parent should have known that this child was gravely ill" "in the last few days" "preceding his death."
The fact that Dr. Ross emphasized to appellant on November 8, 2001, the need to monitor Terrance's weight, coupled with Skinner's repeated warnings to appellant in the days before Terrance's death that he needed immediate medical treatment, the obviousness of Terrance's deteriorating physical condition, and appellant's failure to feed Terrance for a period of days immediately prior to his death, supported factual findings that appellant acted with malice. Thus, the evidence proved Terrance's death was "the direct consequence of the malicious omission of the performance of a duty, such as a mother to feed her child,"Biddle, 206 Va. at 20, 141 S.E.2d at 714, and supported a conviction for murder.
2. EVIDENCE OF PREMEDITATION
"In Virginia, every unlawful homicide is presumed to be murder of the second degree." Pugh, 223 Va. at 667, 292 S.E.2d at 341. "[W]hether premeditation and deliberation exist, so as to elevate a homicide to first degree murder, is in the province of the [trier of fact]." Epperly v. Commonwealth, 224 Va. 214, 232, 294 S.E.2d 882, 892 (1982).
To premeditate means to adopt a specific intent to kill, and that is what distinguishes first and second degree murder. The intent to kill must come into existence at some time before the killing; it need not exist for any particular length of time. . . . "It is the will and purpose to kill, not necessarily the interval of time, which determine the grade of the offense."
Smith v. Commonwealth, 220 Va. 696, 700-01, 261 S.E.2d 550, 553 (1980) (quoting Akers v. Commonwealth, 216 Va. 40, 48, 216 S.E.2d 28, 33 (1975)). Circumstantial factors that the fact finder may consider in deciding whether the evidence is sufficient to prove premeditation and a specific intent to kill include: (1) the brutality of an attack; (2) the disparity in size and strength between the accused and the victim; (3) the concealment of the victim's body; and (4) the defendant's lack of remorse and efforts to avoid detection. Epperly, 224 Va. at 232, 294 S.E.2d at 892. Proof by circumstantial evidence "is not sufficient . . . if it engenders only a suspicion or even a probability of guilt. Conviction cannot rest upon conjecture."Littlejohn v. Commonwealth, 24 Va. App. 401, 414, 482 S.E.2d 853, 859 (1997).
Here, the record established that appellant's failing to feed and obtain medical treatment for Terrance was willful conduct that was likely to cause death or great bodily harm and actually did so, permitting a finding of implied malice. See Essex, 228 Va. at 281, 322 S.E.2d at 220. However, the evidence failed to establish that appellant adopted a specific intent to kill Terrance at some time before his death, as required to prove first-degree murder. See Smith, 220 Va. at 700, 261 S.E.2d at 553. Neither appellant's actions nor her statements permitted a finding of premeditation. At about 7:00 p.m. on Monday, November 26, 2001, the evening before Terrance's death, appellant asked Gloria Skinner to baby-sit Terrance, behavior inconsistent with a specific intent to kill. After Terrance's death, appellant told her cellmate she and Gibson planned to explain the absence of food in Terrance's digestive tract by saying it resulted from an inherited disorder related to Gibson's diabetes, but no evidence established that appellant and Gibson had formulated this plan before the baby's death. Finally, appellant made no attempt to conceal the infant's body and called for emergency assistance. Although emergency personnel testified, based on the presence of lividity, that the infant had been dead for a few hours before they responded to the scene, appellant testified she believed the infant was asleep and that she called 911 immediately after discovering he was blue in the face. Although the trier of fact was entitled to reject appellant's testimony, this rejection did not provide substantive evidence that she knew the infant was in distress and failed to call police because she had adopted a specific intent to kill. The evidence, viewed in the light most favorable to the Commonwealth, and all reasonable inferences therefrom do not support a finding of premeditation beyond a reasonable doubt.
II.
For these reasons, we hold the trial court's refusal of appellant's request for appointment of a second medical expert was not error. Further, we conclude the evidence was sufficient to prove she acted with malice rather than merely with criminal negligence, but we conclude the evidence was insufficient to prove premeditation. Thus, we reverse the conviction for first-degree murder and remand for retrial for an offense no greater than second-degree murder if the Commonwealth be so advised.
Reversed and remanded.