J-A29031-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    SEAN J. DICKSON                            :
                                               :
                       Appellant               :   No. 550 WDA 2019

        Appeal from the Judgment of Sentence Entered February 26, 2019
     In the Court of Common Pleas of Armstrong County Criminal Division at
                        No(s): CP-03-CR-0000158-2018


BEFORE: BENDER, P.J.E., KUNSELMAN, J., and PELLEGRINI, J.*

MEMORANDUM BY PELLEGRINI, J.:                          FILED JANUARY 2, 2020

        Sean J. Dickson (Dickson) appeals from the judgment of sentence

imposed in the Court of Common Pleas of Armstrong County (trial court)

following his jury conviction of one count each of possession of a controlled

substance and endangering the welfare of a child (EWOC).1             Dickson

challenges his EWOC conviction on appeal. We are constrained to reverse his

conviction for EWOC.

        On January 3, 2018, police executed a search warrant on the residence

of 432 Reynolds Avenue with the objective of confiscating narcotics. Dickson,

his then-girlfriend, Melonie Johns (Johns), and one female child (Child) were

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*   Retired Senior Judge assigned to the Superior Court.

1   35 P.S. § 780-113(a)(16) and 18 Pa.C.S. § 4304(a)(1).
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present at the time of the search, in a bedroom. Police recovered from that

bedroom a lockbox containing five grams of crack cocaine and drug

paraphernalia (including razor blades and a scale) and a glass skull-shaped

cup on the tip of a dresser containing methamphetamine residue. The lockbox

was locked and the keys were on Dickson’s person.

       On February 26, 2019, the trial court sentenced Dickson to a term of

not less than ten nor more than twenty-four months’ incarceration on the

EWOC offense and no further penalty on the possession of a controlled

substance charge. The grading of the EWOC offense was increased because

of the young age of the Child.2 Dickson filed a post-sentence motion that the

trial court denied. Dickson timely appealed and he and the trial court complied

with Rule 1925. See Pa.R.A.P. 1925(a)-(b).

       Dickson challenges the sufficiency of the evidence supporting his EWOC

conviction.3 We begin by addressing his argument that the Commonwealth

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2See 18 Pa.C.S. § 4304(b)(2), infra (providing for increased grading where
child is under age of six).

3In Commonwealth v. Smith, 206 A.3d 551, 557 (Pa. Super. 2019), appeal
denied, 2019 WL 3886668 (Pa. filed Aug. 19, 2019), we stated:

       The standard we apply in reviewing the sufficiency of the evidence
       is whether viewing all the evidence admitted at trial in the light
       most favorable to the verdict winner, there is sufficient evidence
       to enable the fact-finder to find every element of the crime beyond
       a reasonable doubt. In applying the above test, we may not weigh
       the evidence and substitute our judgment for the fact-finder. In
       addition, we note that the facts and circumstances established by



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failed to meet its burden regarding the intent element of the crime, i.e., that

he knowingly violated a duty of care to the Child, as it is dispositive of our

decision.4 (See Dickson’s Brief, at 13-17).

       The EWOC statute provides, in relevant part, as follows:

       (a) Offense defined.—

             (1) A parent, guardian or other person supervising the
       welfare of a child under 18 years of age, or a person that employs
       or supervises such a person, commits an offense if he knowingly
       endangers the welfare of the child by violating a duty of care,
       protection or support.

18 Pa.C.S. § 4304(a)(1).




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       the Commonwealth need not preclude every possibility of
       innocence. Any doubts regarding a defendant’s guilt may be
       resolved by the fact-finder unless the evidence is so weak and
       inconclusive that as a matter of law no probability of fact may be
       drawn from the combined circumstances. The Commonwealth
       may sustain its burden of proving every element of the crime
       beyond a reasonable doubt by means of wholly circumstantial
       evidence. Moreover, in applying the above test, the entire record
       must be evaluated and all evidence actually received must be
       considered. Finally, the finder of fact [,] while passing upon the
       credibility of witnesses and the weight of the evidence produced
       is free to believe all, part or none of the evidence.

(citation omitted).

4 Dickson also contends that the Commonwealth presented no evidence
showing that he was the parent, legal guardian or person supervising the
welfare of the Child, as required by the statute; it merely established his
cohabitation at the residence. He also contests the increased grading of the
offense because the evidence was insufficient to establish that the Child was
less than six years old.

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      “[T]he [EWOC] statute is protective in nature, and must be construed

to   effectuate   its   broad   purpose    of   sheltering   children   from   harm.”

Commonwealth v. Spanier, 192 A.3d 141, 150 (Pa. Super. 2018), appeal

denied, 203 A.3d 199 (Pa. 2019) (citation omitted). “The common sense of

the community, as well as the sense of decency, propriety and the morality

which most people entertain is sufficient to apply the statute to each particular

case, and to individuate what particular conduct is rendered criminal by it.”

Id. at 151 (citation omitted).

      We are also mindful that “[t]he crime of endangering the welfare of a

child is a specific intent offense.” Commonwealth v. A.R.C., 150 A.3d 53,

57 (Pa. Super. 2016). “The intent element under section 4304 is a knowing

violation of a duty of care.” Id. (citation omitted). The three-prong standard

to establish the knowing element of intent of EWOC is the: “(1) accused must

be aware of duty to protect child; (2) accused must be aware that child is in

circumstances that could threaten child’s physical or psychological welfare;

and (3) accused either must have failed to act, or must have taken action so

lame or meager that actions cannot reasonably be expected to protect child’s

welfare.” Id. (citation omitted).

      At trial, Police Officer Gregory Koprivnak, who participated in executing

the warrant, testified that the lockbox containing the crack cocaine had a lock

on it when he found it, and that police forcibly opened it. (See N.T. Trial,

10/11/18, at 24-25, 28-29). Detective Phillip Young testified that he broke


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the lockbox in order to open it.        (See id. at 63).      Regarding the

methamphetamine residue, the record reflects that it was located on an object

on the top of the dresser and that the small amount was residue and not

weighable. (See id. at 70, 98-101).

     After review of the record, we agree with Dickson’s contention that the

mere possession of controlled substances located in items locked and/or

inaccessible to a child does not, by itself, threaten the child’s physical or

psychological welfare. Because we conclude that the evidence was insufficient

to sustain Dickson’s EWOC conviction, that conviction is reversed.

     However, Dickson does not challenge his possession conviction on which

he was sentenced without further penalty. Guilt without penalty constitutes

a sentence.   See 42 Pa.C.S. § 9721(a)(2); Commonwealth v. Williams,

997 A.2d 1205, 1206 (Pa. Super. 2010). Because our reversal of the EWOC

conviction upsets the trial court’s sentencing scheme, we must remand to the

court for resentencing on the possession of a controlled substance charge.

     Conviction for EWOC reversed.     Case remanded to the trial court for

resentencing on the controlled substance charge. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/2/2020

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