J-S77042-18

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,              :   IN THE SUPERIOR COURT OF
                                           :         PENNSYLVANIA
                Appellee                   :
                                           :
        v.                                 :
                                           :
AMBER R. FLOYD,                            :
                                           :
                Appellant                  :    No. 3507 EDA 2016


             Appeal from the Judgment of Sentence October 6, 2016
              in the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0008317-2015

BEFORE:       OTT, J., DUBOW, J. and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.:                   FILED MARCH 07, 2019

     Amber R. Floyd (Appellant) appeals from the judgment of sentence

entered on October 6, 2016, after she was found guilty of endangering the

welfare of a child (EWOC) and recklessly endangering another person (REAP).

We affirm.

     The abovementioned charges arose out of two instances of police finding

Appellant’s then eight-year-old son, C.F., home alone.    The first instance

occurred on March 4, 2015. As summarized by the trial court, on that day at

approximately 7:45 a.m., City of Philadelphia Northeast Detective William

Duboe

     and other law enforcement members arrived at 7811 Bradford
     Street, Apartment A, in Northeast Philadelphia to serve an Arrest
     Warrant upon Appellant’s boyfriend[, Jerry]. The genesis of the
     warrant was Appellant’s report to law enforcement that this
     paramour had assaulted and terrorized her inside the apartment

*Retired Senior Judge assigned to the Superior Court.
J-S77042-18


     they had shared a few days earlier. Upon arrival, and after
     knocking several times on the front door, Detective Duboe
     observed a front curtain move. He announced that the door would
     be kicked if it was not opened. Immediately thereafter he
     observed a little boy open the curtain and peer through it.

            Detective Duboe told this little boy to open the door. The
     child in response stated that he did not know if they were police.
     Amazed with the independence and wisdom of someone so young,
     the Detective promptly showed the child the marked police wagon
     and identification and a copy of the photograph of the person on
     the warrant. The child then permitted the entry of the officers.
     Upon entry, Detective [Duboe] checked the premises. No other
     persons were present.

           Detective Duboe noted that the apartment was dirty and in
     complete disarray with numerous dead and live roaches visible on
     the counters and in the kitchen particularly covering chicken left
     for the child’s lunch uncovered. Trash was strewn throughout the
     premises. The apartment lacked any furniture whatsoever except
     for a mattress box spring that was on the floor of a single
     bedroom. The Detective was aware that Appellant had reported to
     law enforcement as part of her prior complaint that her boyfriend
     had broken the television in their prior altercation.

           Initially this child, who was later identified as Appellant’s
     [son, C.F.,] told law enforcement that “[Appellant] would be right
     back and that she was at work.” After the Detective waited almost
     two hours for some responsible adult to appear, C.F. “blurted out
     that [Appellant] leaves him home by himself all the time.” C.F.
     told Detective Duboe that he was home because he had off from
     school on this regular school day. He showed the Detective while
     waiting for [Appellant] to appear, that he had been reading bus
     schedule[s]. Detective Duboe testified that “[C.F.] said that’s what
     kept him busy all day. So there was no radio, TV or nothing. There
     was about 50 bus schedules on the bed. That’s all he did was read
     them all day. He’s a pretty smart kid because he knew all the bus
     routes.”

            There was no telephone in the apartment and C.F. had no
     cellular phone. C.F. sta[ted] that he did not know any telephone
     number to reach [Appellant]. He did not have any information
     concerning her place of work. After almost two hours into the wait
     time, C.F. provided the officers a telephone number for an “uncle.”

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      When the officer called the number, a male answered and
      acknowledged that he was a relative and stated that he would
      appear. No one arrived.

             After they could wait no longer and after unsuccessfully
      reaching someone within the Philadelphia Department of Human
      Services Child Protection Division, Detective Duboe made the
      decision to take C.F. to Northeast Detectives, feed him and then
      transport him to the Special Victim’s Unit for an interview. During
      this entire period no adult arrived or telephoned police department
      on behalf of C.F.

            Philadelphia Special Victim’s Unit Officer Migyon Wilson
      established that on March 4, 2015 she had interviewed C.F. at
      about 11:00 a.m. She said during the entire period that C.F. was
      in her presence, no adult came to claim [C.F.]. Thereafter, C.F.
      was transported via uniformed police officers to the Center City
      Philadelphia Department of Human Services Child Protection
      Division location.

Trial Court Opinion, 6/28/2018, at 4-6 (citations omitted).

      Appellant testified that during the relevant periods of time she was

employed as a financial analyst at a company located fifteen minutes from her

apartment. N.T., 6/10/2016, at 21. Appellant also confirmed that during the

week prior to the March 4th incident, she had contacted police and obtained a

temporary ex-parte protection from abuse (PFA) order against her former

boyfriend Jerry after a violent altercation which resulted in Jerry breaking most

of the furniture and Appellant’s cellphone. Id. at 22-23, 32-33. Jerry also

stole C.F.’s phone. Id. at 33.




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      Appellant testified that on March 4th she had arranged for her friend Lisa

to travel from the Frankford section of Philadelphia to watch C.F. 1 Id. at 21

Although this was a regular school day, Appellant explained that C.F. was

home because he had been “suspended from school for behavioral issues that

he was having, due to” witnessing the altercation between Appellant and

Jerry. Id. at 22. Appellant testified that she had spoken to Lisa shortly before

she left for work around 7:30 a.m., and Lisa told her that she would be arriving

shortly. Id. at 23-24. Appellant testified that Lisa did not end up showing up

because she had encountered weather-related travel troubles that prevented

her from making it to Appellant’s apartment. Id. at 40.

             Appellant testified that her apartment had been in disarray
      and without furniture because [she was] “trying to get it together”
      after the breakup. Appellant agreed that there was no telephone
      landline in the apartment and that [C.F.] had no phone to call
      anyone if needed while alone. Appellant recalled that she had
      received notice from the Department of Human Services after
      completing her full day at work after 5:00 [p.m.] She remembered
      that [C.F.’s] older cousin had picked [C.F.] up from the
      Department of Humans Services location that day.

Trial Court Opinion, 6/28/2018, at 10 (citation omitted).




1
 Appellant testified that she would often ask Lisa, maternal grandmother or
other relatives to watch C.F. in her absence. Appellant averred Lisa had
previously watched C.F. over a dozen times. Id. at 24, 26-27. Neither Lisa
nor any other family members testified at trial.
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J-S77042-18

      Following this incident, an arrest warrant was issued for Appellant on

May 25, 2015, charging her with EWOC and REAP.2 As further summarized

by the trial court, evidence presented at trial

      demonstrated that Appellant, despite being under the microscope
      of the [DHS] and law enforcement, inexplicably continued to
      dangerously neglect [C.F.] until at least June 15, 201[5]. Special
      Victims Unit Detective Justin Montgomery credibly testified that
      on June 15, 2015 at approximately 3:15 p.m. he had travelled to
      7811 Bradford Street, Apartment A, Philadelphia, PA to serve and
      execute the arrest warrant upon [Appellant.]

             After knocking and determining no one was home, he waited
      in his police vehicle. He then saw C.F. walking alone northbound
      on Bradford Street, approach the apartment, look up and down
      the street and gain entry with a key. Detective Montgomery
      knocked again several times and when C.F. finally opened up the
      apartment [he provided identification] to C.F. and asked if anyone

2 Although it is not entirely clear from the record, it appears from the
transcripts and Appellant’s brief that a Department of Human Services (DHS)
investigation was opened as a result of this incident and as a result, C.F.’s
maternal grandmother received physical and legal custody of C.F. See N.T.,
10/6/2016, at 16 (“At this point there is a stipulation by and between counsel
that if called to testify that Deputy City Solicitor, Angela Yancey would say
that [s]he reviewed the DHS records regarding [C.F.] and determined that no
investigation was open as a result of the incident in this trial, because at the
time, [C.F.] was in the legal custody of his maternal grandmother.”);
Appellant’s Brief at 11 (DHS “was the legal and physical custodian of [C.F.] on
June 15, 2015[]” and had transferred custody to C.F.’s maternal
grandmother). With respect to maternal grandmother,

      Appellant testified that [maternal] grandmother had [] been
      staying with her temporarily in March 2015. Specifically, she
      stated “I originally got the apartment on Bradford Street October
      of 2013. My mom stayed with me in the apartment up until I want
      to say January 2014. After that it was just me and C.F.[] She
      would come by periodically and stay for a few days, leave; stay a
      few days, leave.” She reported that C.F.’s grandmother rented a
      room in a different section of the city.

Trial Court Opinion, 6/28/2018, at 10.
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J-S77042-18


      was home. C.F. was alone and the property appeared empty.
      [Detective Montgomery] called to inform Officer Wilson of his
      findings and waited for additional officers to provide
      transportation of C.F. to the Special Victims Unit.

            While waiting for the arrival of someone on [C.F.’s] behalf,
      C.F. asked if he could retrieve his backpack and money left on the
      counter for his dinner. He told the Detective that [Appellant] was
      at work and would be right back. The physical condition of the
      apartment appeared to be cluttered. There [were] limited items of
      furniture including a television. Numerous plates of old food and
      drinks [were] scattered about the kitchen and dining room. When
      asked about the living conditions, Detective Montgomery
      responded “I would consider the living conditions livable, but not
      suitable for a child that age just due to the older food stuff left
      around in different stages of decomposition.” Officer Wilson who
      had interviewed C.F. in March also reported that she had
      interviewed C.F. again in the early evening of June 15, 2015 at
      the Special Victims Unit. C.F. was fed his dinner by law
      enforcement while waiting for someone to collect him.

                                        ***

              [Appellant] acknowledged that [] C.F. had been attending
      school at the time and that she had prearranged for two cousins
      to be with him while she was at work. She claimed a belief that at
      the time of arrival of the police officers those cousins had been at
      a nearby WaWa getting [C.F.] food. This was directly in contrast
      to the evidence that money for C.F.’s food was on the counter at
      the time of the Detective’s arrival and that C.F. had asked to bring
      it with him to Special Victim’s Unit to buy food for himself. On that
      date in June[,] Appellant stated that she had received a call from
      the Special Victim’s Unit about 5:00 p.m. on her way home from
      work.

Id. at 7-8, 10 (citations omitted). With respect to these incidents, C.F., now

ten years old, contradicted his previous statements made to police and

testified that each time police had encountered C.F. home alone, family

members or friends were responsible for taking care of him. N.T., 6/10/2016,

at 20-24, 32-33.

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J-S77042-18


            C.F. admitted also that his belief, that other people that he
      had believed were responsible for his care including his cousins,
      his grandmother, or friends of his mother, was based upon the
      information that [Appellant] had told him after her arrest. V.F.’s
      prior written, signed and adopted previous inconsistent statement
      were introduced into evidence via direct and cross-examination of
      C.F. and subsequently through the interviewer Officer Wilson.
      These previous statements firmly corroborated the sad truth that
      [C.F.] had been dangerously left to his own devices for an
      extended period of time and was quite used to [Appellant’s]
      pattern of behavior.

Trial Court Opinion, 6/28/2018, at 6 (citations omitted).

      No additional charges were filed based upon this incident, but in the

criminal information, the Commonwealth listed both March 4, 2015, and June

16, 2015, as the offense dates to support the EWOC charge.

      Following a non-jury trial, Appellant was found guilty on both charges.

On October 6, 2016, after waiving a pre-sentence investigation, Appellant was

sentenced to an aggregate term of four years’ reporting probation. Appellant

timely filed a notice of appeal on November 4, 2016.3 On appeal, Appellant

challenges the sufficiency of the evidence to sustain her EWOC conviction.

Appellant’s Brief at 7.

      We begin our review of Appellant’s claim mindful of the following.

      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

3
  Both Appellant and the trial court complied with Pa.R.A.P. 1925. According
to the trial court, the transcripts in this case were not completed until May
2018, accounting for the lengthy delay between when Appellant filed her
notice of appeal and when the trial court authored an opinion pursuant to
Pa.R.A.P. 1925(a). Trial Court Opinion, 6/28/2018, at 3.
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J-S77042-18


     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 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.

     Further, in viewing the evidence in the light most favorable to the
     Commonwealth as the verdict winner, the court must give the
     prosecution the benefit of all reasonable inferences to be drawn
     from the evidence.

Commonwealth v. Harden, 103 A.3d 107, 111 (Pa. Super. 2014) (internal

quotation marks and citations omitted).

     [T]o support a conviction under the EWOC statute, the
     Commonwealth must establish each of the following elements: (1)
     the accused is aware of his/her duty to protect the child; (2) the
     accused is aware that the child is in circumstances that could
     threaten the child’s physical or psychological welfare; and (3) the
     accused has either failed to act or has taken action so lame or
     meager that such actions cannot reasonably be expected to
     protect the child’s welfare.

Commonwealth v. Wallace, 817 A.2d 485, 490–91 (Pa. Super. 2002)

(internal quotation marks omitted). Furthermore, EWOC “constitutes a felony

of the third degree” if the accused “engaged in a course of conduct” which

continued to endanger the welfare of the child. 18 Pa.C.S. § 4304(b)(1)(ii).




                                    -8-
J-S77042-18

      Appellant avers the Commonwealth failed to present sufficient evidence

that she had engaged in a continuing course of conduct to support a felony

grading of EWOC.4     Appellant’s Brief at 10.    Specifically, while Appellant

concedes there was sufficient evidence to support a finding of EWOC regarding

the March 4, 2015 incident, Appellant contends that because DHS became the

legal and physical custodian of C.F., who then transferred custody to maternal

grandmother prior to the June 15, 2015 incident, Appellant did not have legal

or physical custody of C.F. and as such, did not owe a duty of care to C.F. Id.

at 11. Therefore, Appellant argues, she could not have been found to have

endangered the welfare of a C.F. in June 2015, and without this second

incident of child endangerment, the Commonwealth could not have proven

that Appellant engaged in a continuing course of conduct to support a third-

degree felony conviction. Id. at 12-13.

      “Although the EWOC statute does not define ‘course of conduct,’ the

phrase is clearly used in that context to differentiate the penalties for single




4Additionally, Appellant contends the Commonwealth failed to prove Appellant
was aware of: (1) her duty of care to C.F., and (2) that the circumstances
surrounding the June 2015 incident posed a threat to C.F. and endangered his
well-being. Appellant’s Brief at 12-13. Upon our review of the record, we find
these claims waived for Appellant’s failure to preserve properly these
arguments in her 1925(b) statement. See Pa.R.A.P. 302(a) (“Issues not
raised in the lower court are waived and cannot be raised for the first time on
appeal.”). See also Commonwealth v. Poncala, 915 A.2d 97, 100 (Pa.
Super. 2006) (“[A]s a general rule, the failure to raise an issue in an ordered
Rule 1925(b) statement results in the waiver of that issue on appeal.”).

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J-S77042-18

and multiple endangering acts.” Commonwealth v. Kelly, 102 A.3d 1025,

1031 (Pa. Super. 2014)

      “Course of conduct” is defined in multiple instances elsewhere in
      the Crimes Code and, in each of those instances, “course of
      conduct” implies more than one act over time. See 18 Pa.C.S. §
      2709(f) (defining “[c]ourse of conduct” as used in the statute
      defining the offense of harassment as “[a] pattern of actions
      composed of more than one act over a period of time, however
      short, evidencing a continuity of conduct”); 18 Pa.C.S. § 2709.1(f)
      (defining “[c]ourse of conduct” as used in the stalking statute as
      “[a] pattern of actions composed of more than one act over a
      period of time, however short, evidencing a continuity of
      conduct”). Although recognizing that the harassment and stalking
      statutes provide a statutory definition for the phrase, this Court
      has “explained that ‘[c]ourse of conduct by its very nature
      requires a showing of a repetitive pattern of behavior.’”

Id. at 1030–31 (some citations omitted). “Particularly with this offense, the

logical interpretation of the legislative language in subsection (b) is that it is

designed to punish a parent who over days, weeks, or months, abuses his

children, such as repeatedly beating them or depriving them of food.”

Commonwealth v. Popow, 844 A.2d 13, 17 (Pa. Super. 2004).

      In its 1925(a) opinion, the trial court offered the following analysis,

concluding that even without the second incident, the Commonwealth satisfied

the course-of-conduct element.

             In the instant matter, competent evidence had been
      introduced by the Commonwealth [] to prove beyond a reasonable
      doubt that Appellant had knowingly engaged in course of conduct
      that had endangered [C.F.] by repeatedly violating her duty as his
      biological parent during extended periods in March of 2015 as well
      as in June of 2015.

             It was undisputed that Appellant was the biological mother
      of [C.F.] and that as his mother she had owed a duty of care to

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J-S77042-18


     him. The testimony from all persons including Appellant
     established that Appellant and C.F. lived on their own in the
     apartment and more importantly that Appellant had assumed
     natural parental responsibility for her son. The fact that there was
     an Order entered at some unknown date granting C.F.’s maternal
     grandmother physical custodial rights or responsibilities did not
     minimize or absolve Appellant from her duties in any manner.

            It was plainly apparent from C.F.’s independent behavior
     within the deplorable conditions observed by Detective [] Duboe
     coupled with C.F.’s recorded statements, that [C.F.] had been left
     alone for long and multiple lengths of time by [Appellant] to fend
     for himself well before March 4, 2015 at approximately 7:45 a.m.
     when law enforcement members arrived at 7811 Bradford Street,
     Apartment A, in Northeast Philadelphia to serve an arrest warrant.
     It was plainly apparent that C.F. had already grown accustomed
     to being left alone to cook and care for himself long before the
     first arrival of law enforcement at his door. C.F.’s [] survival skills
     demonstrated that he had already been dangerously thrown into
     the ocean of life with only his wits as his life vest at far too young
     of an age.

           Appellant’s testimony revealed that she knowingly left her
     son alone in February and March without any means to reach out
     for help via telephone immediately after this child demonstrated
     that he had been emotionally and severely traumatized by the
     violence he had witnessed between Appellant and her boyfriend.
     Instead of obtaining some form of help for [C.F.], she left him in
     the same insect ridden, filthy apartment that she had reported
     had been ransacked by the boyfriend just the week before the
     appearance of the officers. [Appellant] unconscionably left her
     [C.F.] vulnerable to the same man from whom she had expressed
     fear of future violence and reprisal. As early as March of 2015, the
     continuing course of conduct as the statutory element that raised
     the offense of [EWOC] to a third degree felony already been firmly
     established with the evidence gleaned from events on March 4,
     2015.

           The return of law enforcement on June 15, 2015 however
     exposed the sad truth that Appellant had not significantly altered
     her ongoing and harmful neglect of her son. Once again [C.F.] was
     observed acting independently of any adult supervision or care.
     He had walked home alone from school armed only with the locks
     to the apartment. Money was left for him to pay for and cook his

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J-S77042-18


      own meals and singularly occupy his free time. The conditions as
      reported by law enforcement in the apartment, although slightly
      improved, was still in disarray and not suitable as a child’s
      residence. C.F.’s responses echoed Appellant’s lies to cover her
      abdication of her parental responsibilities.

             Just as an extraction needle reflects what had been flowing
      in a person’s veins, each observation of each testifying officer from
      both periods of time proved beyond a reasonable [doubt,] the
      continuing course of Appellant’s abhorrent conduct. Moreover,
      Appellant’s attempts to disguise her dangerous neglect by filling
      [C.F.’s] brain with false memories illuminated her consciousness
      of guilt. Appellant knowingly and continually deprived [C.F.] of a
      naturally developed childhood. Sufficient evidence supported the
      guilty verdicts for each charge as graded.

Trial Court Opinion, 6/28/2018, at 12-14.

      Upon our review of the record, we conclude Detective Duboe’s

observations in March 2015 of C.F. alone in an apartment with deplorable

conditions,5 coupled with the Detective’s testimony that C.F. had disclosed to

Detective Duboe that Appellant frequently left him alone, if believed by the

finder of fact, was sufficient to establish that Appellant engaged in a continuing

course of conduct that endangered the welfare of C.F.

      Additionally, we find the June 2015 incident to be further evidence of

Appellant’s continuing conduct.     In concluding as such, we disagree with

Appellant’s argument that because she did not have legal or physical custody

of C.F., she did not owe a duty of care to him, a necessary element under the

EWOC statute. This Court has held that a duty of care is not limited solely to


5
 As noted supra, Appellant concedes there was sufficient evidence to support
a finding of EWOC regarding the March 4, 2015 incident. Appellant’s Brief at
11.
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parents or guardians with custodial rights. See Commonwealth v. Kellam,

719 A.2d 792, 796 (Pa. Super. 1998) (“In this age where children reside in

increasingly complex family situations, we fail to understand why criminal

liability should be strictly limited to biological or adoptive parents. In the

instant case, appellant resided with the victim and her mother, exercised a

great deal of control over the mother, and voluntarily assumed parental

responsibilities with regard to the child. We therefore hold that whenever a

person is placed in control and supervision of a child, that person has assumed

such a status relationship to the child so as to impose a duty to act.”).

      Here, the evidence established that while Appellant did not have legal

or physical custodial rights to C.F. at the time of the June 2015 incident,

Appellant and C.F. were living together and maternal grandmother, who had

custody of C.F., only stayed at the apartment periodically. Appellant, through

her own testimony, acknowledged that she was aware when C.F. was going

to be home alone during certain hours and testified that she had arranged for

C.F. to be cared for by friends and other family members when she was at

work. Although it is clear the trial court did not credit Appellant’s version of

events with respect to setting up care for C.F. in her absence, Appellant’s

testimony firmly established that she assumed the parental responsibility of

C.F. and was aware of and had a duty to, care for C.F. during the relevant

period of time.




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J-S77042-18

      Because we find Appellant owed a duty of care to C.F. in June 2015, the

evidence and testimony at trial concerning both the March 4, 2015 and June

15, 2015 incidents were sufficient to establish a continuing course of conduct,

warranting a third-degree felony grading. As such, we affirm the judgment of

sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/7/19




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