J-S39001-22 
 

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 
 

COMMONWEALTH OF PENNSYLVANIA 

  IN THE SUPERIOR COURT OF 
           PENNSYLVANIA 

             

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v. 

 

 

RIAN 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 

EFORE:  PANELLA, P.J., BENDER, P.J.E., and NICHOLS, J. 

MEMORANDUM BY PANELLA, P.J.: 
 

FILED:  MARCH 17, 2023 

Brian  Leroy  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 

violently shook or struck the head of his four-month-old son, Finnick Wagner 

(“Finnick”), who was brought to the hospital unresponsive and later died. The 

key  dispute  at  trial  pitted  the  expert  testimony  presented  by  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 arising from an infection and a 

blood clotting disorder. 

     

    B

   

 

 

  B

 
 

 

 

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For purposes of this appeal, the following facts are undisputed. Finnick 

was  suffering  from  a  fever  when  his  mother  went  to  work  on  July  6,  2017, 

leaving him in the care of his father, Wagner. Later that day, Wagner called 

Finnick’s mother, quickly telling  her to get home immediately before calling 

911 to report that Finnick was not breathing. Under the direction of the 911 

operator, Wagner began CPR on Finnick. Finnick ultimately died at the local 

hospital. Wayne Ross, M.D., conducted an autopsy and concluded that Finnick 

died as the result of violent shaking or blows to the head. The Commonwealth 

charged  Wagner  with  multiple  crimes  related  to  Finnick’s  death.  A  jury 

ultimately convicted Wagner of third degree murder, aggravated assault, and 

endangering the welfare of Finnick.   

Wagner raises several claims on appeal: the evidence was not sufficient 

for the conviction of third-degree murder and aggravated assault; the verdict 

was against the weight of the evidence; and the trial court erred by permitting 

the  Commonwealth  to  introduce  improper  expert  testimony  in  rebuttal,  an 

inflammatory autopsy photo, and use a previously unpublished 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.1 

 

1 The original memorandum  decision  in  this appeal was  withdrawn with the 
intent to publish. However, upon further consideration, this new memorandum 
decision replaces the original memorandum. 

 

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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. (citation omitted). We, as an appellate 

court, are not to independently weigh the evidence or substitute our judgment 

for that of the jury as fact-finder. See id. The Commonwealth’s burden can 

be satisfied entirely by circumstantial evidence. See id. Finally, it was for the 

jury to resolve any doubts about Wagner’s guilt, so long as the evidence was 

not so weak or inconclusive that no inference can reasonably be drawn from 

the combined circumstances. See 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). 

“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.” 18 Pa.C.S.A. § 2702(a)(1). 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. See 18 Pa.C.S.A. § 302(b)(3). 

Here,  the  Commonwealth  presented  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, 5/24/21, at 154-60, 166-195. He determined 

within a reasonable degree of scientific certainty that Finnick died as a result 

 

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60, 176, 195.  

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-

Another expert witness offered by the Commonwealth, Dr. Lori Frasier, 

M.D., agreed that the brain trauma that caused Finnick’s death was incurred 

from  the  child  being  violently  shaken  and  hitting  his  head  on  a  hard,  blunt 

object  or  a  hard,  blunt  object  hitting  his  head.  See  id.  at  41-43,  88-89. 

Additionally, Finnick’s mother established that Wagner was with Finnick and 

responsible for his care at the time the injuries likely occurred and Finnick was 

found unresponsive. See id. at 58-61.   

Collectively, viewed in the light most favorable to the Commonwealth, 

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. See Nichols, 682 A.2d 185. 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. See Fisher, 80 A.3d 1191. As a result, we conclude 

 

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that the evidence is sufficient to support the convictions of aggravated assault 

and criminal homicide – murder in the third degree. 

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  could  reasonably  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.  See  id.  These  arguments,  however,  are  more  properly  classified  as 

challenges  to  the  weight  of  the  evidence.  There  was  certainly  evidence 

 

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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  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. See Appellant’s Brief at 34-39. “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. See 

Appellant’s  Brief,  at  36-38.  Wagner  relied  on  the  defense  expert  testimony 

offered by Michael Laposata, M.D., Ph.D., which suggested that sepsis due to 

 

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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 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; see also 

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., 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. 
 

 

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Trial Court Opinion, 4/11/22, at 10. 

 

After  our  own  independent  review  of  the  record,  we  cannot  conclude 

that the trial court’s reasoning constitutes an abuse of discretion. See id. The 

trial court’s observation that this was a battle of expert opinion is accurate, as 

is  the  court’s  observation  that  the  jury  performed  its  assigned  duty  and 

resolved the conflict based upon credibility assessments. See Gonzalez, 109 

A.3d 723. Wagner’s second issue merits no relief. 

Next,  Wagner  claims  Dr.  Ross’s  rebuttal  expert  testimony  strayed 

beyond the bounds of proper rebuttal testimony. See Appellant’s Brief, at 39-

42.  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 

 

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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 

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. 

See Appellant’s Brief, at 43-48. 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).  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 

 

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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.  

The trial court admitted the photograph because it found the photograph 

relevant to an issue that was hotly disputed by the experts. See Trial Court 

Opinion, 4/11/22, at 15. 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. See Spell, 28 A.3d at 1279. 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. See Chester, 587 

A.2d at 1373-74. 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  Dr. 

Ophoven’s  expert  report  to  impugn  Dr.  Ophoven’s  credibility.  During  its 

 

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closing argument, the Commonwealth indicated that it intended to publish the 

conclusion of Dr. Ophoven’s report. See N.T., 5/26/21, at 86. After the trial 

court overruled defense counsel’s request for a sidebar, the Commonwealth 

published the report to the jury and highlighted inconsistencies in the report: 

In that paragraph [Dr. Ophoven] says without investigative 
reports and autopsy photos, it is challenging to come to blah, blah, 
blah.  But  when  we  look  [at]  the  end  of  her  report,  she  lists 
materials that she examined. In those materials she indicated a 
flash drive with autopsy photos, 280 images. 

nother heading, Carlisle Borough Police, and subheadings 
for  incident  report,  initial  report,  comments.  I  don’t  know  what 
she’s  referring  to  by  comments,  but  it’s  under  Carlisle  Borough 
Police, a narrative, again, of some sort. I don’t know what that is, 
what  she  is  referring  to,  but  it  appears  on  the  materials  from 
Carlisle  Borough  Police,  supplemental  reports  all  under  the 
heading Carlisle Borough Police. 

  A

 

So  when  you  are  considering  Dr.  Ophoven’s  accuracy  and 
 
trustworthiness in a matter of such magnitude, consider this level 
of  sloppiness.  Remember,  this  is  a  report  she  generated  [on] 
December 13 of 2020, months and months ago. It’s not as if she 
just generated this report last week. So keep that in mind when 
deciding whether or not to follow the trusted Dr. Ophoven on the 
issue  of  whether  we  can  make  a  conclusion  regarding  one 
explanation that is homicide over another that is natural death. 
 

… 

 
 

 

After the jury was excused, the trial court asked defense counsel to state 

Id., at 88-89. 

her objection: 

[Defense  counsel:]    …  Here’s  the  problem.  The  expert  reports, 
number  one,  they  are  largely  –  I  think  they  can  be  considered 
testimonial in nature. Number 2, exhibits are not supposed to go 
out to the jury that include – that require expertise to understand 
them, and certainly all of these reports do. And number 3, all of 

 

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the reports have within them hearsay, which is properly excluded 
and which did not come in, in this trial. 

HE  COURT:    I’m  not  talking  about  the  entirety  of  the  report, 
because  that’s  not  what  was  shown.  Was  there  any  hearsay 
contained in … the part that was shown to the jury? 

Defense counsel:]  No, but the part that was shown to the jury 
was not put in context with the entire report. The part that was 
shown to the jury was suggested to be either a copy or paste from 
Dr. Ophoven’s report. Now, Dr. Ophoven was not impeached with 
that  or  cross-examined  on  that  point.  And  now,  now  that  issue 
has been raised, it seems likely that the jury will have questions 
about that issue and about the reports in general, and they should 
not go out and that’s why I asked [the prosecutor] before, and I 
should have brought this up ahead of time, but that’s why I asked 
him,  are  you  planning  on  showing  anything  that  has  not  been 
published. I think it just creates a quagmire. 
 

  T

  [

Id., 109-110. The court then overruled Wagner’s objection. See id., at 110. 

 

On  appeal,  Wagner  argues  this  ruling  was  in  error.  His  argument 

alternately frames the issue as either a claim of prosecutorial misconduct, or 

one  of  evidentiary  error.  See  Appellant’s  Brief,  at  50-51.  Because  Wagner 

does not clearly identify the basis of his claim of error, he fails to develop any 

argument  that  entitles  him  to  relief.  To  properly  address  either  version  of 

Wagner’s  argument,  whether  it  is  a  claim  of  evidentiary  error  or  a  claim  of 

prosecutorial misconduct, would require this Court to, in effect, act as counsel 

and  develop  the  argument  beyond  what  Wagner  has  set  forth  in  his  brief. 

These circumstances require that we find Wagner has waived this issue. 

Even  if  not  waived,  we  note  that  under  both  versions  of  Wagner’s 

argument, Wagner is not due relief unless the claimed error caused more than 

de minimis prejudice. See Commonwealth v. Hairston, 84 A.3d 657, 671-

 

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672  (Pa.  2014)  (evaluating  claim  of  improper  admission  of  evidence  for 

harmless error); Commonwealth v. Brown, 134 A.3d 1097, 1106-1107 (Pa. 

Super. 2016) (“Prosecutorial misconduct is evaluated under a harmless error 

standard.” (citation omitted)). 

The harmless error doctrine, as adopted in Pennsylvania, reflects 
the reality that the accused is entitled to a fair trial, not a perfect 
trial. … Harmless error  exists if the record demonstrates either: 
(1) the error did not prejudice the defendant or the prejudice was 
de minimis; or (2) the erroneously admitted evidence was merely 
cumulative  of  other  untainted  evidence  which  was  substantially 
similar to the erroneously admitted evidence; or (3) the properly 
admitted  and  uncontradicted  evidence  of  guilty  was  so 
overwhelming  and  the  prejudicial  effect  of  the  error  was  so 
insignificant  by  comparison  that  the  error  could  not  have 
contributed to the verdict. 

airston, 84 A.3d ay 671-672.  

Here,  Wagner  concedes  the  evidence  was  used  for  the  purpose  of 

impeaching Dr. Ophoven’s credibility. See Appellant’s Brief, at 52. We cannot 

conclude  that  the publication of portions of  Dr. Ophoven’s expert report for 

the  first  time  during  closing  arguments  necessarily  caused  more  than  de 

minimis prejudice to Wagner. As the trial court noted, this trial boiled down to 

a dispute among experts. Both sides vigorously impeached the credibility of 

the  opposing  experts.  For  example,  Dr.  Ophoven  opined  that  retinal  slides 

provided by Dr. Ross showed tissue that was “in little pieces which is not ideal 

for making a determination.” N.T., 5/25/21, at 82. As a result, she declared 

the slides “not at all diagnostic.” Id., at 83. Further, Dr. Ophoven opined that 

Dr. Ross had not performed a proper analysis of Finnick’s spine. See id., at 

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  H

 

 

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88.  When  asked  about  Dr.  Ross’s  opinion  that  Finnick  was  suffering  from  a 

viral infection as opposed to an E. Coli infection, Dr. Ophoven disagreed and 

quipped, “I’d like his crystal ball.” Id., at 96.  

Defense  counsel  argued  that  Dr.  Ross’s  “suspicion  [was]  grounded  in 

only a partial knowledge of the facts and an  inflexibility and hubris…”. N.T., 

5/26/21, at 69. Counsel highlighted that Dr. Ross informed the police that this 

was a homicide case only one hour after he began his autopsy of Finnick. See 

id., at 72. Counsel argued that Dr. Ross was biased due to his desire to defend 

his methodology and professionalism. See id., at 74. 

In rebuttal, Dr. Ross labeled Dr. Ophoven’s criticism of the retinal slides 

as “invalid and unscientific.” N.T., 5/26/21, at 21. In fact, Dr. Ross repeatedly 

referred to Dr. Ophoven’s critiques as invalid, unscientific, or haphazard. See 

id., at 21-22; 38; 39. Further, the Commonwealth argued, without objection, 

that Dr. Ophoven was “a non-neuro pathologist who hasn’t done an autopsy 

since 2009, hasn’t seen a child patient since sometime in the ‘70s, …. Hasn’t 

seen a child patient, she disagrees [with Dr. Ross,] she knows better.” Id., at 

93.  

 

The  jury  was  tasked  with  choosing  between  experts  who  vehemently 

disagreed  with  the  substance  of  the  other’s  expert  testimony.  And  both 

experts  explicitly  attacked  the  methodology  and  professionalism  of  the 

opposing expert. Defense counsel and the prosecutor both extensively cross-

examined  each  expert  to  contrast  their  methodologies  and  expert  opinions. 

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Under these specific circumstances we cannot conclude that the prosecutor’s 

action in publishing and highlighting a portion of Dr. Ophoven’s report to focus 

on  what  may  have  been  a  typographical  error  prejudiced  Wagner  in  any 

meaningful way. Accordingly, Wagner’s fifth issue on appeal merits no relief.    

Lastly, Wagner argues the court abused discretion by sentencing him to 

an aggregate term of twenty to forty years in a state correctional facility. See 

Appellant’s Brief, at 53-60. 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) (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) 

 

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omitted)).  

statement  to  determine  whether  a  substantial  question  exists.”  (citation 

“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).   

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 

204  Pa.  Code  §  303.16(a).  However,  as  Wagner  concedes,  the  trial  court 

properly considered the minimum sentence to be at least 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  204  Pa.  Code  §  303.16(a).  The  statutory  maximum 

 

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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 

As we conclude none of Wagner’s issues on appeal merit relief, we affirm 

sentenced.”). 

the judgment of sentence. 

Judgment of sentence affirmed. 

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udgment Entered. 

oseph D. Seletyn, Esq. 
Prothonotary 

ate: 03/17/2023 

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