dissent">

Dissenting opinion by

Justice ROACH

I agree with the majority’s conclusion that the trial court committed error in allowing Dr. Spevak to testify that a non-abusing parent would be aware that his or her child was being abused. However, after reviewing the trial testimony, I believe that the error was harmless.

It is important to note that the testimony at issue was not elicited by the Commonwealth, nor was it mentioned by the Commonwealth in its closing argument. Although not dispositive in determining harmless error, I believe these facts — that the Commonwealth did not elicit the testimony and that the Commonwealth declined to refer to it in its closing argument — are necessary to place the evidence in its appropriate context.

As stated by the majority, in order to conclude that the Appellant was guilty of complicity to murder, the jury was required to find that Appellant “failed to make a proper effort to prevent Chantal Roach from causing the death of Jordan Mclntire.” A review of the record reveals both that there was an abundance of proof beyond Dr. Spevak’s improper testimony to support the jury’s finding and that the error at issue was harmless:

(1) The two defendants lived in a small apartment — described by one witness as less than half the size of the court room where the trial was held — where they were usually together with their baby.

(2) Francesco Mendoza, an employee of the Bourbon County Health Department who worked with first-time parents testified:

This is dated February 9th, it’s a late entry from that visit on January 18th. “I remembered when I held Jordan I noticed a small bloodshot mark inside of his left eye. When I asked what happened, she said that she didn’t know, that she had taken him to Dr. Stephens and that he had ordered blood work, and that maybe he had something wrong with his blood that caused him to bruise easily. I advised him to get the blood work done ASAP. Jordan seemed scared. As I held him to my chest he relaxed, but when I pulled him away, he started crying again. My visit time was up, so I gave him to mom and she continued to try and console him. When Jordan *701began to cry, Chantal picked him up but he continued to cry after a couple of minutes. We both at the same time said, you want to hold him; let me hold him.” Those were things I remembered after my home visit.

Mendoza also testified that she “felt the desperation in a baby’s cry that [she] had never felt before.”

(3) Cellmate Christy Abney testified that Chantal Roach told her that Jordan’s crying got on her nerves. Abney then testified that Roach explained that Jordan “would cry so much that she would shake him, and that she had shook him up upside down and that he had puked from shaking him.”

(4) Athena Willoughby testified that Roach told her that she took Xanax on a regular basis including “several of them the night before and the day of’ February 7th. Roach also told Willoughby that the Xanax “made her meaner than hell.”

(5) Teresa Edington, Roach’s mother, testified that she had noticed bruises on Jordan. She also testified that when she asked the Appellant about the bruise above Jordan’s eyebrow that the Appellant claimed that Jordan had received the bruise by bumping his head against the bassinet. She also testified that the Appellant explained Jordan’s black eye by claiming that a candle fell off the wall and hit Jordan.

(6) Sabrina Campbell testified that two out of three times that the defendants visited her house that they were under the influence or intoxicated.

(7) Chantal Roach’s aunt, Christy Roach, testified that she became so concerned about Jordan’s bruises that she called social services.

(8) Teresa Feedback, another of Roach’s cellmates, testified that Roach demonstrated to her what she did to Jordan: “She acted like she grabbed him by the ankles, and she popped him like a rug. She shook him like, she’d have him by the ankles and shook. That’s the motion she made.”

(9) Kindra O’Neal testified that on the night of February 6th she was at the defendants’ apartment and that both defendants were smoking marijuana. She also testified that Appellant explained that Jordan’s black eye was caused by Jordan crying so much.

(10) Dr. Burrows, an assistant medical examiner testified that Jordan’s death certificate listed the contributing causes of his death as “inflicted closed head injury and battered baby syndrome.”

(11) Chantal Roach testified that she and the Appellant went to bed at around midnight on February 6th and that they both woke up at 1:45 p.m. the next day. She also testified that the Appellant did not work and that she and Appellant were around each other a fair amount.

(12) Appellant testified that although he was a hard sleeper that he could hear his child cry at night because “[i]t’s different when it’s your child crying.” He also admitted to taking Lorcet, a prescription painkiller, on February 6th.

This evidence establishes the setting and circumstances surrounding the crime, namely that the defendants lived in a small apartment, where they were usually together with their child, where they regularly consumed illicit drugs and alcohol; that people who had contact with the couple over time, rather than single visits, observed a pattern of injuries to the child that indicated ongoing abuse; and that the act of abuse that ultimately led to the child’s death was intense and violent. I believe the evidence was best summarized by the Commonwealth in its closing argument:

We’ve heard denials, ignorance, like they had their blinders on, ear plugs in their ears, and glasses where they couldn’t see. Yet people outside the *702home, who didn’t have the benefit of being there, who had to go to work some days, who didn’t get to be around Ms. Roach and Mr. Melntire all day long, didn’t get to hear the exchanges, the arguments. Didn’t get to see the frustration that either one or both of them were getting when Jordan would get a little fussy.

Were there warning signs that they should have known? Did they need a doctor to tell them? Their own family was telling them. Their own family confronted them, both of them. Something is wrong here, this child is too young to have these bruises.

You’ll have the photos that Chantal Roach’s mother took that showed the burn mark, or what they believed was a burn mark. It shows other bruises. We heard of candles falling off the walls, bruises from bassinets, bruises from pajamas, bruises from rocking, bruises from bouncing, bruises from sucking his thumb, didn’t he hit his head at your houses bruises, crying so hard his eyes turned black bruises, accidentally hitting him with the telephone. He didn’t bruise himself sucking his thumb. Dr. Chesnut got the referral that required a mandatory visit the next day to Dr. Stephens. It was a bruise on the temple and a bruise on the eye. It must have been a magic candle falling off the wall twice. I think that’s the trip that Josh made to the doctor ichen Chantal told Dr. Chesnut it happened rocking him, or bouncing him. She told Dr. Stephens it happened rocking him, when the original statement had been that a candle fell off the wall. They were together then. Did he go, “Now wait a minute, wait a minute, that’s not how that bruise happened. You didn’t do that rocking him, a candle fell off the wall.”? No. After they left the office, “What are you talking about? The candle fell, you didn’t do that rocking, you didn’t do that bouncing.”? He made both trips. They weren’t taking him to the doctor for the bruises. They took him because they had to, there had been a report to Social Services.

Doctors see bruises on this child even when that’s not why he’s taken. He was taken for vomiting. Dr. Biddle pointed out, well, he’s got two linear contusions. I don’t know what excuse was given. I don’t remember an excuse for the hand-print on the leg. I don’t remember the excuse for the one on the shoulder.

No, they didn’t need a doctor to tell them. They knew what was going on inside their own home. There’s people out at the jail that know what was going on inside their own home. It wasn’t hidden from anybody. Drug use on a regular basis, so much so that we refer to taking a pill as eating it. You’re taking a lot of pills when you switch from swallowing or having to take medicine to eating it.

(Emphasis added).

The Commonwealth made an unassailable point in closing. Appellant had told third parties one story of how Jordan’s injuries had occurred and then sat silently while Chantal Roach told the doctor a different story. In addition, the Commonwealth did not need an expert to convince the jury that a non-working spouse who sat around a small apartment all day, each and every day, would have known of the horrific abuse perpetrated against his baby. Based on the evidence at trial, any error that occurred in Dr. Spevak’s testimony was harmless. Thus, I respectfully dissent.

GRAVES and WINTERSHEIMER, JJ., join this dissenting opinion.

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How this case has been treated — in progress