Com. v. Windslowe, P. , 158 A.3d 698 ( 2017 )

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2017 PA Super 82COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
PADGE VICTORIA WINDSLOWE :
A/K/A PAGE V. GORDON :
: No. 2126 EDA 2015
Appellant :
Appeal from the Judgment of Sentence June 11, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0005870-2012,
CP-51-CR-0012090-2012
BEFORE: SHOGAN, OTT and STEVENS, P.J.E.*
OPINION BY STEVENS, P.J.E.: FILED MARCH 28, 2017
Appellant Padge Victoria Windslowe (a/k/a Page V. Gordon) appeals
the judgment of sentence entered after a jury convicted Appellant of third-
degree murder, aggravated assault, and possessing instruments of crime.1
Appellant challenges the sufficiency and weight of the evidence, claims the
trial court abused its discretion in admitting certain evidence, and contends
the trial court should have declared a mistrial. We affirm.
Appellant was charged with the murder of Claudia Aderotimi and the
aggravated assault of Sherkeeia King, two women who were hospitalized
after hiring Appellant to perform an illicit cosmetic procedure in which
Appellant injected silicone into their buttocks. To entice the victims,
____________________________________________
*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S. §§ 2502(c), 2702, 907(b), respectively.
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Appellant falsely advertised herself as a medical professional trained to
perform a buttocks enhancement procedure accepted by the medical
community as safe and effective. While King sustained permanent damage
to her lungs, heart, and buttocks, Aderotimi did not survive.
After Appellant’s jury trial commenced on February 19, 2016, the
prosecution presented several days of testimony to develop its case. We
summarize the relevant details of this extensive factual background.
Death of Claudia Aderotimi
The Commonwealth’s case centered on the untimely death of
Aderotimi, a twenty-year old British woman, who was rushed for emergency
care on the eve of February 7, 2011. Aderotimi passed away just hours later
at 1:32 a.m. on February 8, 2011, at Mercy Philadelphia Hospital. Dr.
Fredrick Hellman, Delaware County Chief Medical Examiner, performed
Aderotimi’s autopsy and observed numerous injection sites in her buttocks
that were leaking clear, thick fluid. He discovered silicone in Aderotimi’s
blood, stomach, urine, liver, lung tissue, and brain tissue. As a result, Dr.
Hellman concluded Aderotimi’s cause of death was a pulmonary embolism
caused by silicone injections into the buttocks and opined that her manner of
death was homicide.
The prosecution’s expert in plastic surgery, Dr. Robert Noone, agreed
with the medical examiner’s conclusion that Aderotimi died from a massive
pulmonary embolism, which occurred when the silicone injections entered
Aderotimi’s blood stream, traveled to the lungs, and stopped Aderotimi’s
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heart. Stressing that the injection of silicone is not an acceptable medical
procedure to enlarge a patient’s buttocks, Dr. Noone clarified that there are
only three approved methods of buttocks sculpting; reshaping the buttocks
with the patient’s own tissue; aspirating the patient’s abdomen fat, purifying
the fat, and injecting the fat into the buttocks; or inserting a prefabricated
buttocks implant that is similar to a breast implant. However, Dr. Noone
stressed that these procedures must be performed under anesthesia by
accredited physicians in accredited medical facilities.2
Scheffee Wilson and Theresa Gyamfi testified that they witnessed
Appellant give Aderotimi silicone injections into her buttocks on February 7,
2011, just hours before Aderotimi’s death. By way of background, Wilson
explained that she had met Appellant years earlier in June 2008 when she
sought a “butt enhancement” for herself online by placing her contact
information on a blog called “Topix”; Appellant responded under the names
“Lillian” and “Body by Lillian,” and offered to perform silicone injections.
N.T., 2/19/15, at 204-206. Appellant sent Ms. Wilson a detailed email with
exclusive sale prices, which she asked that Ms. Wilson not share with
____________________________________________
2
Dr. Noone noted a limited exception as Adato Sil-Ol, a silicone product, is
used by ophthalmologists to treat retinal displacement. However, Dr. Noone
emphasized that only a small volume of about ten cubic centimeters (10 cc)
of Adato Sil-Ol is injected into the eye and is aspirated out of the body once
the retina heals. In comparison, Appellant would inject a range of 1000 to
2000 cc silicone into a customer’s buttocks in one session and would again
inject similar volumes in subsequent sessions.
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anyone. She offered several packages of different products with varying
effectiveness in which she promised to inject Ms. Wilson with volumes of
1500 to 2000 cc of silicone product, listing prices ranging from $1,500.00 to
$3,700.00. In the email, Appellant represented that she was a physician’s
assistant with ten years’ experience and guaranteed her results.
After receiving several rounds of injections, Wilson became Appellant’s
“business partner,” finding Appellant customers in exchange for a referral
fee. N.T., 2/19/15, at 224-30. Wilson could not contact Appellant directly;
she would email her and Appellant would call back from a blocked number.
Appellant utilized several email addresses: BodyByLillian@yahoo.com,
buttocksculpture@yahoo.com, and miamiplasticsurgery@yahoo.com. Wilson
indicated that Appellant implied she worked for a plastic surgeon when she
talked about her experience and training. When Appellant was late to inject
someone, she would say that “something happened at the clinic [or] the
doctor’s office.” N.T., 2/19/15, at 217.
Wilson arranged for Appellant to meet Aderotimi and Gyamfi, two
British women interested in a buttocks enhancement procedure. Wilson
directed Aderotimi and Gyamfi to book a hotel room in Philadelphia in
November 2010. Appellant met the women in their hotel room, injected
each of them with 1800 cc of silicone, closed the injection sites with Krazy
Glue and cotton balls, and instructed them to lie on their stomachs for a few
hours. The women each paid Appellant $1,800.00 cash.
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Aderotimi and Gyamfi returned to Philadelphia for “touch up” injections
and contacted Wilson to meet Appellant at the same hotel on February 7,
2011, the eve of Aderotimi’s death. N.T., 2/26/15, at 74-81. Wilson also
arranged to get a separate hotel room as she had developed a lump in her
buttocks from the silicone injections; Appellant had been trying to fix the
lump by injecting more silicone and attempting to withdraw some of the
silicone she had previously injected.
All four women gathered in the Aderotimi and Gyamfi’s hotel room to
begin the process. At the moment Appellant administered Aderotimi’s final
injection of silicone, Wilson and Gyamfi watched as Aderotimi’s body
“jolted.” N.T., 2/19/15, at 243-45. Aderotimi seemed to recover and
Appellant proceeded to inject Gyamfi and Wilson. Aderotimi began to
complain of chest pains and asserted that it hurt to breathe ever since she
received the last injection. When Aderotimi’s pain brought her to tears,
Appellant placed her hand on Aderotimi’s chest and asked if this pressure
hurt. Aderotimi explained again that she had pain every time she breathed
in. After Appellant instructed Aderotimi to call an ambulance if the pain
worsened, she “made haste” and left the hotel. N.T., 2/19/15, at 247-48.
As Aderotimi’s pain increased and she began gasping for air, Wilson
called 9-1-1. Gyamfi told the emergency personnel that Aderotimi had just
received silicone buttocks injections. Although the paramedics gave
Aderotimi oxygen and transported her to the hospital, Aderotimi died several
hours later. Wilson called Gyamfi to check on Aderotimi and learned of her
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death. Wilson attempted to contact Appellant, who returned her call from a
blocked number. When Wilson told Appellant that Aderotimi had died,
Appellant hung up the phone. Wilson never heard from Appellant again.
Wilson cooperated with the detectives investigating Aderotimi’s death
and gave her account of her involvement with “Lillian.” Although Wilson did
not know Appellant’s real identity, she knew Appellant recorded a rap music
video under the moniker “Black Madam,” which was available on YouTube.
Officers met with the video producers who identified Appellant as Padge-
Victoria Windslowe and indicated that Appellant had two Pennsylvania
addresses: one in Narberth and one in Ardmore.
The investigating officers ran Appellant’s Pennsylvania driver’s license
and confirmed that her 2002 Jaguar was registered at the same address in
Narberth. The officers obtained a search warrant for both addresses, but
Appellant was not present at either location and their eventual searches did
not provide additional information on Appellant’s whereabouts.
Subsequent Injury of Sherkeeia King
While Appellant initially avoided being arrested for Aderotimi’s murder,
she was eventually apprehended in connection with the police investigation
into subsequent allegations of Appellant’s assault of Sherkeeia King. In
January 2011, King had initially met Appellant at a party hosted at the home
of Sharnell Saunders, where several women arranged to get buttocks
enhancement injections. Appellant identified herself as “Lillian,” a registered
nurse in the cosmetology field trained to administer medical-grade silicone
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injections from Thailand. N.T., 2/23/15, at 114-16. Appellant injected the
women with silicone, closed the injection sites with Krazy Glue and cotton
balls, and instructed the women to drink plenty of water and to avoid sitting
for an extended period of time. King paid Appellant $1,000.00 for a “Dixie
cup” of silicone. N.T., 2/23/15, at 117-22.
After receiving these injections, King and Saunders learned of
Aderotimi’s death, which had been linked to illegal silicone buttocks
injections. Saunders then attempted to contact Appellant to see if Appellant
had administered Aderotimi’s injections. Appellant did not return Saunders’s
calls and Appellant’s phone number was eventually disconnected. About a
year after Aderotimi’s death, Saunders heard that Appellant had resurfaced
and was back in business. Saunders obtained Appellant’s new number and
sought to schedule another injection round.
Appellant called back from a blocked number, indicating she was
willing to do injections for a former customer, and asserted she would
explain the circumstances of Aderotimi’s death in person. Appellant
arranged to give silicone injections to both Saunders and King at Saunders’s
Philadelphia home on separate occasions. When questioned by both women
about Aderotimi’s death, Appellant alleged that Aderotimi was high on
cocaine, died of an overdose, and did not follow Appellant’s aftercare
instructions. Both Saunders and King believed Appellant’s explanation and
paid her to perform additional silicone buttocks injections.
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King received her injections on February 19, 2012, at Saunders’s
home. As Appellant injected King with silicone, King felt “funny” and her leg
began to shake. N.T., 2/23/15, at 128. Appellant told King her buttocks
was stretching as she was getting more silicone in this round. After
returning home, King’s temperature reached 109 °F and she began coughing
up blood. King was admitted to the Lankenau Hospital intensive care unit
where she remained on a breathing machine for approximately twenty days.
Dr. Arka Banerjee, King’s supervising physician, testified that CAT scans
showed King sustained heart and lung damage consistent with a silicone
pulmonary embolism, which cannot be treated with surgery or medication.
King was discharged from the hospital with level three heart disease and
was required to use an oxygen tank for three additional weeks. King still
has trouble breathing and cannot sit for an extended period of time.
Saunders assisted homicide detectives in apprehending Appellant by
setting up another appointment with Appellant at her home on February 29,
2012. In advance of this operation, the officers obtained a warrant for
Appellant’s arrest and a search warrant for Saunders’s home. When
Appellant arrived at Saunders’ home on that day, she was placed under
arrest. Officers recovered Appellant’s pink bag, which contained various
items used for illegal silicone injections: rubber gloves, Krazy Glue, markers,
syringes, needles, cotton balls, trash bags, plastic cups, and bottles
containing unknown clear substances.
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The detectives obtained a search warrant for the Nissan Sentra that
Appellant drove to Saunders’s home. Inside the car, the detectives found
credit cards and mail in Appellant’s name and in several of her aliases. The
mail was directed to a home in Chesterbrook, Pennsylvania. Based on this
information, the officers were able to obtain and serve a search warrant on
Appellant’s Chesterbrook home. Officers recovered a packing slip dated
March 29, 2010, and a specification sheet from Neely Industries, Inc. for the
product Xiameter, which is an industrial grade silicone used to manufacture
auto wax, shampoo, lubricant, or damping fluid. In addition, officers
confiscated additional injection supplies, four cell phones, and newspaper
clippings reporting on Aderotimi’s death.
Dr. Adam Lanzarotta of the FDA Forensic Chemistry Center analyzed
the clear liquids found at Appellant’s Chesterbrook home and in her
possession upon her arrest. All of the bottles tested positive for silicone and
two of the bottles were labeled “not for injection via intravenously” and “Rx
only.” N.T., 2/24/15, at 102-108. Special Agent Michael Widenhouse, a
criminal investigator for the FDA, testified that Xiameter is industrial silicone
manufactured by Dow Corning and available through wholesalers like Neely
Industries. Widenhouse explained that the FDA does not regulate Xiameter
because it is not intended for human consumption.
Prior Injury to Melissa Lisath
At trial, the Commonwealth was permitted to introduce evidence that,
prior to her injection of Aderotimi and King, Appellant also caused harm to
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Melissa Lisath with her silicone injections in 2008. Although Appellant was
never charged with the assault of Lisath, the trial court agreed with the
Commonwealth’s assertion that these circumstances were admissible under
Pennsylvania Rule of Evidence 404(b) to show Appellant had knowledge that
silicone injections were unsafe.
Years before meeting Aderotimi and King, Appellant had arranged
online to perform similar injection procedures on Stephanie Matos and her
friend, Melissa Lisath, in August 2008 at a Philadelphia hotel. Appellant
informed the women that her name was “Lillian” and that she was a “nurse
practitioner who worked for a plastic surgeon.” N.T., 2/20/15, at 5-8.
Appellant injected the women with silicone, covered the injection sites with
Krazy Glue and cotton balls, and told them not to sit for twenty-four hours.
Lisath asked Appellant to perform a second round of injections in
September 2008; Lisath paid Appellant $700.00 for 1000 cc of silicone to be
injected in her buttocks and thighs. Lisath testified she felt lightheaded and
short of breath once she received the injections. After returning home to
New York, Lisath woke up in the emergency room, was hospitalized for three
months with a breathing tube, and was in a coma for a portion of that time.
Lisath’s injuries prevented her from being able to work for several years and
she testified that the silicone has created lumps in her buttocks.
After Lisath’s hospitalization, Matos tried unsuccessfully to contact
Appellant, who would not answer Matos’s emails or phone calls. Matos
testified that before Lisath’s injury, Appellant would return her phone calls
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and email messages right away. However, after Lisath was injured, Matos
felt like Appellant had “disappeared.” N.T., 2/18/15, at 25. Matos then
returned to the blog where she found Appellant’s information, warned its
readers of the danger of Appellant’s silicone injections, and shared the
details of Lisath’s injury from the injection. After Matos made these posts,
she noticed that “Body by Lillian” could no longer be found on the blogs.
Appellant’s Testimony
Testifying in her own defense, Appellant indicated she was born Forest
Leon Gordon, changed her name to Padge-Victoria Windslowe in 1992, and
had gender reassignment surgery in 1994. Appellant claimed she was
properly trained to administer silicone injections in 1994 or 1995 from a
nurse named Natasha Rodriguez in her apartment in Washington Heights,
New York; Appellant alleged that Dr. Chim Choke of Thailand taught her how
to mix lidocaine with adrenaline to use for numbing purposes. When the
prosecutor asked if Appellant told her customers that she received “back-
street” training, Appellant claimed “in the transgender world, we don’t
always do things the conventional way [as there] is no path for us to do it.”
N.T., 2/27/15, at 90. Appellant denied that she ever told her customers she
was a nurse or a medically trained professional.
Appellant offered clients three different silicone products: (1) Adato
Sil-Ol, which she acquired from “Dr. Voo” in Thailand; (2) Silikon 1000,
which she acquired from Natasha Rodriguez; and (3) a product Appellant
called “hydrogel,” which Appellant would make herself by mixing Xiameter
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and saline solution (in a “1/3 to 3/4 ratio”)3 in her kitchen blender. Appellant
used a bottle crimper to make her silicone concoction look like a legitimate
medical product. Under the alias “Hillmont GI,” Appellant purchased over 58
gallons of Xiameter from Neely Industries, Inc.; Appellant believed she
needed to be associated with a medical group to buy this product.
Despite ordering large amounts of Xiameter, Appellant denied
receiving Xiameter packing slips found in her home that stated that Xiameter
was a food grade product “neither tested nor represented as suitable for
medical or pharmaceutical uses, not intended for human injection, not
intended for food use.”4 N.T., 2/27/15, at 64, 76-77. Appellant later
admitted to receiving the slips but “knew what was coming… [and] knew it
was safe.” N.T., 2/27/15, at 148-51. She argued that Natasha Rodriguez
and “Kevin” from Neely Industries assured her Xiameter was non-toxic and
acceptable for humans to eat and drink. N.T., 2/27/15, at 147. In
response, the Commonwealth offered the rebuttal testimony of Kevin
Trawick and David Laakso, employees of Neely Industries, who denied telling
any customer it was safe for humans to ingest Xiameter.
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3
It is mathematically impossible to make a mixture using this ratio; the
addition of these two fractions equals 13/12 or 108%.
4
Derek Crump, the vice-president and general manager of Neely Industries,
testified that Xiameter is designated “food-grade” silicone, as it is often used
as a lubricant on conveyor belts and may have incidental contact with food
product in the food industry.
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Appellant testified that she was aware that silicone should not be
injected into a vein, but felt it was acceptable to inject silicone into fatty
tissue. She admitted to employing the procedure described by the
prosecution’s witnesses: measuring each buttocks with a ruler, marking
injection sites with a Sharpie marker, injecting Lidocaine and adrenaline to
numb the area, injecting silicone, and closing the injection sites with Krazy
Glue and cotton balls. She claimed that everything was sterile because she
used latex gloves, kept her silicone products in water bottles, and dumped
her injection materials into a medical dumpster. Appellant asserted that she
received the silicone injections herself.
Appellant conceded that she injected Aderotimi in November 2010 and
on the eve of Aderotimi’s death on February 7, 2011. Appellant felt that
Aderotimi’s complaint of a “tickle” in her throat and complications from her
final injection were caused by Aderotimi’s consumption of Four Loko, a malt
liquor beverage with caffeine. Appellant denied that Aderotimi complained
of chest pains or trouble breathing. Appellant claimed that after leaving the
hotel, she called Wilson “every hour on the hour” to check on Aderotimi and
learned of her death on the following day. N.T., 2/26/15, at 181.
Appellant felt horrible about the circumstances of Aderotimi’s passing;
she claimed to be so overwhelmed that she had to move to Delaware to live
with her sister. Appellant stayed in Maryland for six to eight weeks and then
moved to her parents’ home in Philadelphia to await the coroner’s report on
Aderotimi’s death as she believed she could “get house arrest by having a
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Philadelphia address.” N.T., 2/26/15, at 187. Appellant then moved to
Upper Darby, then to New Jersey, then to Plymouth Meeting, Pennsylvania,
and then to Chesterbrook, Pennsylvania. Appellant admitted that she used a
counterfeit New York driver’s license in the name of “Victoria Gordon” to
lease the apartment in Chesterbrook. When the landlord’s credit check
revealed Appellant’s name was “Padge,” Appellant told him “Padge” had
stolen her identity. Appellant took out credit cards in several aliases
including Forrest L. Gordon, Forrest Leona G’Ordoni, Forrestleona G’Ordoni,
Padgevic Winslowe, and Padge-Victoria Windslowe. Appellant denied that
she was trying to conceal her whereabouts.
When Appellant injected Sherkeeia King approximately a year after
Aderotimi’s death, Appellant did not fear causing her any injury as she used
less silicone than she was accustomed to giving customers. Appellant
denied responsibility for King’s injuries as well, claiming King told her after
receiving the injections that she was on Percocet. Appellant also admitted
that she continued to sell the hydrogel mixture she made in her kitchen
blender to other individuals performing illegal buttocks injections.
In addition, Appellant admitted that she gave silicone buttocks
injections to Melissa Lisath in 2008, but denied receiving any communication
indicating that Lisath had fell ill subsequent to the injections. She
discovered Lisath’s illness “in some papers” and at trial. N.T., 2/26/15, at
159. While she recalled that she probably received email messages and
phone calls from Matos around the time of Lisath’s injury, she did not
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answer these messages because she did not want to work with Matos any
longer. While Appellant denied reading any bad reviews online from her
customers, she bragged that customers on blogs had deemed her the
“Michaelangelo of body enhancements.” N.T., 2/18/15, at 59.
At the conclusion of the trial, the jury convicted Appellant of third-
degree murder, aggravated assault, and possessing of instruments of crime.
On June 11, 2015, the trial court sentenced Appellant to an aggregate term
of ten to twenty years imprisonment to be followed by six years probation.
Appellant filed a motion for a new trial, which the trial court subsequently
denied. Appellant filed this timely appeal and complied with the trial court’s
direction to file a concise statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(b).
Appellant raises the following issues for our review:
I. Is [Appellant] entitled to an arrest of judgment on the
charge of Murder in the Third Degree where the evidence
was insufficient to sustain the verdict as the
Commonwealth did not establish malice and hence failed
to prove [Appellant] committed Murder?
II. Is [Appellant] entitled to a new trial on the charge of
Murder in the First Degree5 as the weight of the evidence
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5
It appears that Appellant meant to challenge the weight of the evidence
supporting her third-degree murder conviction. We will overlook this
typographical error as Appellant clearly challenges her third-degree murder
conviction in the analysis section of her brief. Appellant does not challenge
the sufficiency of the evidence supporting her conviction for the aggravated
assault of Sherkeeia King.
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does not support the verdict and where the verdict was
based upon speculation, conjecture, and surmise?
III. Is [Appellant] entitled to a new trial where the Court erred
in granting the Commonwealth’s 404(b) Motion where the
evidence was irrelevant and if determined to be relevant[,]
the relevance was outweighed by unfair prejudice?
IV. Is [Appellant] entitled to a new trial where the Court failed
to declare a mistrial when [Appellant], had a heart attack,
mid-trial and where she was still on cross-examination?
Appellant’s Brief, at 3.
First, Appellant challenges the sufficiency of the evidence supporting
her third-degree murder conviction. Our standard of review is as follows:
As a general matter, our standard of review of sufficiency
claims requires that we evaluate the record in the light most
favorable to the verdict winner giving the prosecution the benefit
of all reasonable inferences to be drawn from the evidence.
Evidence will be deemed sufficient to support the verdict when it
establishes each material element of the crime charged and the
commission thereof by the accused, beyond a reasonable doubt.
Nevertheless, the Commonwealth need not establish guilt to a
mathematical certainty. Any doubt about the defendant's guilt is
to be resolved by the fact finder unless the evidence is so weak
and inconclusive that, as a matter of law, no probability of fact
can be drawn from the combined circumstances.
The Commonwealth may sustain its burden by means of
wholly circumstantial evidence. Accordingly, [t]he fact that the
evidence establishing a defendant's participation in a crime is
circumstantial does not preclude a conviction where the evidence
coupled with the reasonable inferences drawn therefrom
overcomes the presumption of innocence. Significantly, we may
not substitute our judgment for that of the fact finder; thus, so
long as the evidence adduced, accepted in the light most
favorable to the Commonwealth, demonstrates the respective
elements of a defendant's crimes beyond a reasonable doubt,
the appellant's convictions will be upheld.
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Commonwealth v. Tukhi, 149 A.3d 881, 886–87 (Pa.Super. 2016)
(citation omitted).
Pursuant to Section 2502 of the Crimes Code, third-degree murder
encompasses all forms of murder which do not constitute first-degree
murder (intentional killing) or second-degree murder (killing committed
during the perpetration of a felony). 18 Pa.C.S. § 2502. In order to sustain
a conviction for third-degree murder, the Commonwealth need not establish
that the defendant had specific intent to kill or harm the victim, but need
only prove that the defendant killed another individual with malice
aforethought. Commonwealth v. Fisher, 622 Pa. 366, 375, 80 A.3d 1186,
1191 (2013).
Malice is defined as: wickedness of disposition, hardness of
heart, cruelty, recklessness of consequences, and a mind
regardless of social duty, although a particular person may not
be intended to be injured. Malice may be found where the
defendant consciously disregarded an unjustified and extremely
high risk that his actions might cause serious bodily injury.
Malice may be inferred by considering the totality of the
circumstances.
Commonwealth v. Thompson, 106 A.3d 742, 757 (Pa.Super. 2014)
(citation omitted).
Appellant claims her conviction for third-degree murder cannot stand
as she asserts that the Commonwealth failed to prove she acted with malice
in administering the silicone buttocks injections that led to Aderotimi’s
death. Appellant boasts of her “marvelous reputation in her community for
being able to perform the buttocks enhancements with the greatest of care
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and the greatest results” and asserts that in “almost every case, [she did] a
fine job.” Appellant’s Brief, at 19. Appellant argues that she had no way of
knowing the risk involved with the procedure she performed. Her counsel
concedes that while Appellant’s behavior may have been “stupid,” it did not
rise to gross recklessness. Appellant’s Brief, at 19. We disagree.
The Commonwealth presented ample evidence to allow the jury to find
that Appellant consciously disregarded an unjustified and extremely high risk
that her actions might cause serious bodily injury. Without any legitimate
medical training, Appellant performed black market cosmetic procedures by
injecting women directly with silicone. Despite the fact that medical
professionals do not offer direct silicone injection as an acceptable body
shaping procedure, Appellant deemed the injections to be safe after
purportedly learning how to inject silicone from a nurse in her apartment
and how to mix numbing agents from an alleged doctor in Thailand.
Appellant asserted that she did not need formal training or a professional
degree to perform body enhancement procedures, implying that transsexual
individuals should not be required to follow conventional ways of learning.
Unbeknownst to her clients, Appellant’s injections largely consisted of
Xiameter 200, an industrial-grade silicone which is used in auto wax and
damping fluid as a lubricant; Appellant received large quantities of this
product shipped in non-sterile metal tins. Appellant then concocted her own
product she deemed “hydrogel” by mixing the Xiameter with saline in her
kitchen blender; Appellant repackaged the hydrogel with a bottle crimper to
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disguise the substance’s true origin from her customers. Appellant chose to
ignore the clear warnings provided with the Xiameter that indicated that this
product was unsafe for human consumption. When questioned about the
warnings, Appellant lied that Neely Industries employees told her it was safe
for humans to eat the silicone; Neely Industries customer service
representatives adamantly denied this claim.
Appellant then persuaded her clients to rely on her “expertise” by
falsely representing herself as a medical professional with the proper
education and training to perform a medically-acceptable cosmetic
procedure. Not only did Appellant lie about her credentials and the safety of
this procedure, but she imitated medical protocol to appear legitimate; she
wore gloves and scrubs, cleaned the injection site with alcohol before
administering her non-sterile industrial silicone concoction, and instructed
the clients with fake post-procedure protocols. Her instructions to drink
water and avoid sitting for an extended period of time do not decrease the
risk of the foreign substance hitting the client’s bloodstream and entering
the client’s major organs, as silicone cannot be metabolized.
Appellant demonstrated a consciousness of guilt in developing an
intricate scheme to obscure her identity. She never gave her clients her real
name or any details of her personal life, but identified herself as “Lillian.”
She avoided giving her actual contact information, would not have direct
communication with her clients, used several cell phones with blocked
numbers and email addresses such as miamiplasticsurgery@yahoo.com.
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After her injection sessions, Appellant carefully packed up all her injections
supplies and took them with her. Appellant actively concealed her identity
and whereabouts by changing her address six times in the year following
Aderotimi’s death, using fake names and identification to obtain credit cards
and lease her Chesterbrook apartment, and cutting off all communication
with clients that could link her to the illegal injections.
Appellant’s complete disregard for the harm she caused her clients
showed her hardness of heart. Once Aderotimi started to complain of chest
pain and shortness of breath immediately after the injections, Appellant
feigned medical skill by simulating the actions of a doctor in examining a
patient by putting her hand on Aderotimi’s chest. Appellant showed no
concern for Aderotimi’s well-being and felt no duty to call for emergency
care or remain with her struggling client; instead, she recommended
Aderotimi wait to see if her condition worsened before seeking medical care.
This gave Appellant the opportunity to rush to pack up her injection supplies
and leave the hotel as quickly as she could. When Appellant was informed
of Aderotimi’s death, Appellant immediately hung up the phone and closed
all lines of communication with the witnesses to Aderotimi’s death.
Appellant’s recklessness is also demonstrated by her decision to
continue to perform silicone injections despite her knowledge that she likely
caused Aderotimi’s death and Lisath’s injuries. When questioned about the
circumstances of Aderotimi’s death, Appellant lied to her customers and
blamed the fatal result on Aderotimi’s alleged cocaine overdose on the day
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prior to her injection. Appellant disregarded the risk of her procedure and
convinced King that it was safe to undergo additional injections, causing
King a silicone embolism that damaged her heart, lungs, and buttocks.
While Appellant claims she had no knowledge that her silicone
injections could cause death or serious bodily injury, the Commonwealth
presented evidence to allow the jury to make an inference to the contrary.
In addition to the fact that she recklessly injected clients with industrial
grade silicone and ignored the product’s clear warnings that it was not to be
ingested by humans, Appellant’s behavior suggested that she was aware
that her silicone injections had caused serious bodily injury to Melissa Lisath
years earlier in 2008. Before Lisath’s injury, Appellant typically had regular
communication with Stephanie Matos, the woman who referred Lisath for
injections; as soon as Lisath was hospitalized and entered a coma, Appellant
suddenly ceased all communication with Matos and took her business, “Body
by Lillian” off the blogs where Matos has discovered her. Matos testified that
it was if Appellant had “disappeared.” N.T., 2/18/15, at 25.
We are not persuaded by Appellant’s reliance on the decision in
Commonwealth v. Ludwig, 583 Pa. 6, 874 A.2d 623 (2005) in which our
Supreme Court affirmed the trial court’s grant of the defendant’s habeas
corpus petition as it found the Commonwealth failed to establish a prima
facia case of malice to support a conviction under 18 Pa.C.S. § 2506 (“Drug
delivery resulting in death”). In Ludwig, the nineteen-year-old defendant
sold Ecstasy pills to two juvenile girls and their eighteen-year-old friend at
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the girls’ request. The Supreme Court reasoned that the prosecution failed
to show that the defendant’s action in selling illegal drugs on its own did not
demonstrate the requisite “wickedness of disposition, hardness of heart,
cruelty, recklessness of consequences and a mind regardless of social duty
such as to demonstrate an extreme indifference to human life” needed to
prove the mental state of malice. Ludwig, 583 Pa. at 25, 874 A.2d at 634.
This case can be easily distinguished from Ludwig. Appellant
deceived her customers into believing she was a medical professional trained
to perform an acceptable and safe buttocks enhancement procedure at a
discounted price. She misled women by claiming her homemade concoction
of non-sterile industrial silicone was a medical-grade substance suitable for
human injection and blatantly ignored written warnings that silicone should
not be ingested by humans. Appellant’s cruelty is demonstrated in her
abandonment of Aderotimi as she experienced severe chest pain and trouble
breathing after receiving injections; Appellant recklessly told Aderotimi to
wait to seek medical care while she fled the hotel. In continuing to brag
that she was able to produce great results, Appellant disregards her
causation of severe injury to King and Lisath and the death of Aderotimi; she
minimalizes the fact that she injected numerous women with large amounts
of silicone, a harmful substance which cannot be removed from the body.
Appellant demonstrated an extreme indifference to human life by continuing
to induce women to obtain silicone injections despite her knowledge that she
likely caused Lisath’s injuries and Aderotimi’s death.
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Viewing the totality of the circumstances, we find the Commonwealth
presented ample evidence that Appellant acted with malice as she
demonstrated a “wickedness of disposition, hardness of heart, cruelty,
recklessness of consequences and a mind regardless of social duty such as
to demonstrate an extreme indifference to human life.” Ludwig, supra.
On repeated occasions, Appellant consciously disregarded an unjustified and
extremely high risk that her actions might cause serious bodily injury.
Accordingly, we conclude that the jury’s decision to convict Appellant of
third-degree murder is supported by sufficient evidence.
Second, Appellant challenges the weight of the evidence supporting
her third-degree murder conviction. When reviewing a challenge to the
weight of the evidence, our standard of review is as follows:
The essence of appellate review for a weight claim appears to lie
in ensuring that the trial court’s decision has record support.
Where the record adequately supports the trial court, the trial
court has acted within the limits of its discretion.
A motion for a new trial based on a claim that the verdict is
against the weight of the evidence is addressed to the discretion
of the trial court. A new trial should not be granted because of a
mere conflict in the testimony or because the judge on the same
facts would have arrived at a different conclusion. Rather, the
role of the trial judge is to determine that notwithstanding all the
facts, certain facts are so clearly of greater weight that to ignore
them or to give them equal weight with all the facts is to deny
justice.
An appellate court’s standard of review when presented with a
weight of the evidence claim is distinct from the standard of
review applied by the trial court. Appellate review of a weight
claim is a review of the exercise of discretion, not of the
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underlying question of whether the verdict is against the weight
of the evidence.
Commonwealth v. Mucci, 43 A.3d 399, 410–11 (Pa.Super. 2016),
(quoting Commonwealth v. Clay, 619 Pa. 423, 64 A.3d 1049, 1054–55
(2013)). To successfully challenge the weight of the evidence, a defendant
must prove the evidence is “so tenuous, vague and uncertain that the
verdict shocks the conscience of the court.” Mucci, 43 A.3d at 411 (quoting
Commonwealth v. Sullivan, 820 A.2d 795, 806 (Pa.Super. 2003)).
Appellant repeats arguments she set forth in her challenge to the
sufficiency claim, claiming the Commonwealth did not prove Appellant knew
that her injections could cause serious bodily injury or death. We need not
reiterate our discussion of the sufficiency of the evidence as set forth above.
To the extent that Appellant argues that she “believed in her heart that she
was trying to help young women look better,” she is merely asking us to
credit her account of the facts and reweigh the evidence in her favor. We
will not substitute our judgment for that of the factfinder, as the jury
“is free to believe all, none or some of the evidence and to determine the
credibility of the witnesses.” Commonwealth v. Talbert, 129 A.3d 536,
545 (Pa.Super. 2015). We conclude that the trial court properly exercised
its discretion in denying Appellant’s motion for a new trial based on the
weight of the evidence.
Third, Appellant claims the trial court erred in allowing the admission
of prior bad act evidence showing Appellant’s injections had also caused
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Melissa Lisath to become seriously ill. In reviewing a trial court’s discretion
in evidentiary issues, our standard of review is as follows:
[q]uestions regarding the admission of evidence are left to the
sound discretion of the trial court, and we, as an appellate court,
will not disturb the trial court's rulings regarding the admissibility
of evidence absent an abuse of that discretion. An abuse of
discretion is not merely an error of judgment; rather, discretion
is abused when the law is overridden or misapplied, or the
judgment exercised is manifestly unreasonable, or the result of
partiality, prejudice, bias, or ill-will, as shown by the evidence or
the record....
Commonwealth v. Richard, 150 A.3d 504, 512 (Pa.Super. 2016) (citation
omitted).
Our Supreme Court has set forth the circumstances in which a
defendant’s prior bad acts are admissible at trial:
Generally, evidence of prior bad acts or unrelated criminal
activity is inadmissible to show that a defendant acted in
conformity with those past acts or to show criminal propensity.
Pa.R.E. 404(b)(1). However, evidence of prior bad acts may be
admissible when offered to prove some other relevant fact, such
as motive, opportunity, intent, preparation, plan, knowledge,
identity, and absence of mistake or accident. Pa.R.E. 404(b)(2).
In determining whether evidence of other prior bad acts is
admissible, the trial court is obliged to balance the probative
value of such evidence against its prejudicial impact.
Commonwealth v. Powell, 598 Pa. 224, 956 A.2d 406, 419
(2008).
Commonwealth v. Sherwood, 603 Pa. 92, 982 A.2d 483, 497 (2009).
Appellant claims the trial court’s admission of this evidence was
“manifestly unreasonable primarily because there simply was a lack of
connection between Miss Lisath’s injuries and the mental state of
[Appellant]” at the time of Aderotimi’s death. Appellant’s Brief, at 27. We
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agree with the trial court’s finding that evidence that Lisath was hospitalized
with serious injuries after receiving Appellant’s injections in 2008 was
relevant to refute Appellant’s claim that she had no knowledge that her
silicone injections could cause serious bodily harm before she administered
the injections that caused Aderotimi’s death in 2011.
While the admission of evidence of Appellant’s prior injury to Lisath
was prejudicial to the defense, we must ask whether the admission of these
circumstances was unfairly prejudicial. See Pa.R.E. 404(b)(2) (stating that
prior bad act evidence is “admissible only if the probative value of the
evidence outweighs its potential for unfair prejudice”); Commonwealth v.
Dillon, 592 Pa. 351, 367, 925 A.2d 131, 141 (2007) (stating that
“[e]vidence will not be prohibited merely because it is harmful to the
defendant”).
The probative value of the admission of evidence of Appellant’s prior
injury to Lisath outweighed the potential for unfair prejudice. This evidence
had great probative value to assist the Commonwealth in establishing
Appellant’s state of mind, or more specifically, that Appellant caused
Aderotimi’s death with malice aforethought. Moreover, the trial court’s
cautionary instruction ameliorated any prejudicial effect of the evidence.
The trial court advised the jury of the limited purpose for which the evidence
was introduced and prohibited them from using this evidence to conclude
Appellant acted in conformity with these acts or to show criminal propensity.
We presume that a jury follows a trial court’s instructions. Commonwealth
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v. Hairston, 624 Pa. 143, 160, 84 A.3d 657, 666 (2014) (finding the trial
court’s cautionary instruction minimized the likelihood that the prior bad act
evidence would inflame the jury or cause it to convict the defendant on an
improper basis). Thus, we conclude that the trial court did not abuse its
discretion in admitting this evidence.
Lastly, Appellant argues that the trial court erred in failing to grant a
mistrial alleging that the trial court improperly allowed Appellant to continue
to testify after she had been hospitalized for a “heart attack or a heart
related incident several days earlier.” Appellant’s Brief, at 27. Our review of
a trial court’s denial of a motion for a mistrial is limited to determining
whether the trial court abused its discretion. Commonwealth v. Faurelus,
147 A.3d 905, 914 (Pa.Super. 2016).
Appellant’s trial began on February 19, 2015, after which Appellant
testified on her own behalf on February 26-27, 2015. Before the prosecution
had finished its cross-examination of Appellant, the trial court was informed
on March 2, 2015, that Appellant had been hospitalized for complaints of
chest pains. Shortly thereafter, Appellant’s treating physician informed the
trial court that Appellant had undergone a minor procedure, would be
treated with medication, and would be able to proceed with her testimony at
trial upon being discharged from the hospital.
On March 6, 2015, the parties reconvened before the trial court.
Counsel expressed some concern for Appellant’s health and her ability to
withstand cross-examination, but also emphasized his concern that he would
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be liable for any harm Appellant sustained from the stress of testifying. The
prosecutor shared that he was nearly finished with cross-examining
Appellant and confirmed that he would need only fifteen more minutes of
testimony. After a short colloquy by the trial court, Appellant admitted that
she was feeling well enough to continue cross-examination. The trial court
assured Appellant that she could ask for a break if she was not feeling well.
The prosecutor then continued with a brief period of cross-examination
during which Appellant did not complain of any difficulty.
Based on these facts, we agree with the trial court’s conclusion that a
mistrial was not warranted. Appellant’s counsel offered no medical evidence
that would suggest that Appellant could not proceed with her testimony; in
fact, Appellant’s treating physician reported that Appellant suffered no
damage and could return to the witness stand upon her discharge from the
hospital. Appellant agreed to continue with cross-examination as she told
the trial court that she “felt better.” N.T. 3/6/15, at 23. Appellant then
finished a brief portion of cross-examination, never reporting any problem or
asking for a break. Moreover, Appellant does not attempt to argue that her
choice to continue with her testimony resulted in any prejudice.
Accordingly, we conclude that the trial court properly exercised its discretion
in denying Appellant’s motion for a mistrial.
For the foregoing reasons, we affirm Appellant’s judgment of sentence.
Affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/28/2017
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