J-A35033-15

                                 2016 PA Super 46

COMMONWEALTH OF PENNSYLVANIA                 :      IN THE SUPERIOR COURT OF
                                             :            PENNSYLVANIA
             v.                              :
                                             :
SUSAN SCHLEY,                                :
                                             :
                   Appellant                 :          No. 124 WDA 2015

           Appeal from the Judgment of Sentence December 18, 2014
              in the Court of Common Pleas of Allegheny County,
                Criminal Division, No. CP-02-CR-0016445-2013

BEFORE: BENDER, P.J.E., SHOGAN and MUSMANNO, JJ.

OPINION BY MUSMANNO, J.:                         FILED FEBRUARY 19, 2016

        Susan Schley (“Schley”) appeals from the judgment of sentence

imposed following her conviction of endangering the welfare of children

(“EWOC”).1     We vacate the judgment of sentence and remand for further

proceedings.

        Schley and her husband, Charles Schley (“Charles”), are the adoptive

parents (and aunt and uncle) of the complainant, L.S. (“the complainant”).

When the complainant was five years old, she moved into the house of

Schley and Charles (hereinafter “the Schley residence”), located in the

Northside section of the City of Pittsburgh. The complainant resided in the

Schley residence with several of her siblings and cousins, as well as the two

biological children of Schley and Charles.




1
    18 Pa.C.S.A. § 4304(a)(1).
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     The complainant testified that, on a few occasions, while she was a

minor2 and residing at the Schley residence, Charles made her touch his

penis with her hand. According to the complainant, she informed Schley of

these assaults on more than one occasion. The complainant stated that on

each occasion, Schley would then ask Charles if the complainant was telling

the truth about the assaults.   Charles denied all of the accusations, after

which Schley did nothing, and never called the police.        Additionally, the

complainant testified that Schley had said to her that “what happens at the

house doesn’t leave the house.” N.T. (trial), 12/18/14, at 22.

     In October 2013, the Commonwealth charged Schley with EWOC,

graded as a first-degree misdemeanor. Prior to trial, Schley filed a Motion in

limine, seeking to introduce at trial evidence of the complainant’s having

previously made three false sexual assault allegations against non-family

members (hereinafter “the false sexual assault allegations”). The trial court

summarized the false sexual assault allegations as follows:

     [T]he [complainant’s] first [allegation] alleged [that] she had
     been assaulted in a restroom at Oliver High School, which was
     later disproved with the school surveillance videos[,] and [was]
     then recanted by [the complainant]; the second alleged [that the
     complainant] had been dragged into an abandoned home on her
     way home from school and sexually assaulted, which [the
     complainant] later recanted to her counselor and [Schley] during
     a counseling [session]; and the third alleged [that the
     complainant] was assaulted by her roommate at the Circle C
     facility[,] after she had been removed from the [Schley
     residence], which was disproved by the testimony of a third
     roommate[,] and later recanted by [the complainant]. In each

2
  At the time of trial, the complainant was twenty years old. She resided in
the Schley residence until she was seventeen years old.

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        instance[,] the allegations were made against a non-family
        member and did not relate to the abuse which gave rise to the
        instant charges.

Trial Court Opinion, 5/20/15, at 2-3; see also N.T., 12/18/14, at 4 (wherein

the prosecutor stated that “[the complainant] reported [the first alleged

sexual assault at her high school] to [Schley].    [Schley] then went to the

school and met with authorities and [the complainant]. It was disproved by

their investigation[,] and then[,] as a result[, the complainant] refuted the

allegation”).

        Shortly before Schley’s trial, Charles pled guilty to felony EWOC

concerning his sexual assaults of the complainant. See N.T., 12/18/14, at

50.

        On December 18, 2014, Schley’s case proceeded to a non-jury trial.

Before trial commenced, the trial court denied Schley’s Motion in limine,

ruling that the defense could not introduce into evidence the false sexual

assault allegations, pursuant to Pennsylvania’s Rape Shield Law (“RSL”).3

        The complainant was Commonwealth’s sole witness at trial.4    Schley

testified in her own defense, maintaining that that complainant never

informed her that Charles had sexually assaulted the complainant.     At the

close of trial, the trial court found Schley guilty of EWOC, and immediately

sentenced her to serve three years of probation.


3
    See 18 Pa.C.S.A. § 3104.
4
 The Commonwealth did not introduce any physical evidence, and presented
no witnesses aside from the complainant.

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      Schley timely filed a Notice of Appeal.        In response, the trial court

ordered her to file a Pa.R.A.P. 1925(b) concise statement of errors

complained of on appeal. Schley timely filed a Concise Statement. The trial

court then issued a Pa.R.A.P. 1925(a) Opinion.

      Schley presents the following questions for our review:

      I. Did the trial court commit reversible error by excluding
         from trial evidence of the [false sexual assault allegations]
         on the basis that such evidence was barred by the R[SL]?

     II. Did the trial court commit reversible error by excluding
         from trial evidence of the [false sexual assault allegations]
         when this information was probative of a number of
         material issues in the case?

    III. Was the evidence insufficient as a matter of law to convict
         [Schley] of endangering the welfare of children when the
         Commonwealth failed to prove beyond a reasonable doubt
         that [] Schley actually was aware that the complainant was
         in circumstances that threatened her physical or
         psychological welfare?

Brief for Appellant at 5 (capitalization omitted).

      We will address Schley’s first two issues simultaneously, as they both

concern the trial court’s denial of her Motion in limine, and its ruling that the

false sexual assault allegations are inadmissible under the RSL.

      When reviewing a trial court’s denial of a motion in limine, this Court

applies   an   evidentiary    abuse    of   discretion    standard   of   review.

Commonwealth v. Orie, 88 A.3d 983, 1022 (Pa. Super. 2014). “An abuse

of discretion will not be found based on a mere error of judgment, but rather

exists where the court has reached a conclusion which overrides or



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misapplies the law, or where the judgment exercised is manifestly

unreasonable, or the result of partiality, prejudice, bias or ill-will.”

Commonwealth v. Alicia, 92 A.3d 753, 760 (Pa. 2014).

      This Court has stated the well-established standard of review for

admission of evidence claims as follows: “[I]n reviewing a challenge to the

admissibility of evidence, we will only reverse a ruling by the trial court upon

a showing that it abused its discretion or committed an error of law. … To

constitute reversible error, an evidentiary ruling must not only be erroneous,

but also harmful or prejudicial to the complaining party.” Commonwealth

v. Lopez, 57 A.3d 74, 81 (Pa. Super. 2012) (citation omitted); see also

Commonwealth v. K.S.F., 102 A.3d 480, 483 (Pa. Super. 2014) (stating

that a trial court’s ruling on the admissibility of evidence of the sexual

history of a sexual abuse complainant will be reversed only where there has

been a clear abuse of discretion).

    The RSL, codified at 18 Pa.C.S.A. § 3104, provides as follows:

    Evidence of specific instances of the alleged victim’s past sexual
    conduct, opinion evidence of the alleged victim’s past sexual
    conduct, and reputation evidence of the alleged victim’s past sexual
    conduct shall not be admissible in prosecutions under this
    chapter[,] except evidence of the alleged victim’s past sexual
    conduct with the defendant where consent of the alleged victim is
    at issue and such evidence is otherwise admissible pursuant to the
    rules of evidence.

Id. § 3104(a).    The RSL was enacted to “prevent a trial from shifting its

focus from the culpability of the accused toward the virtue and chastity of

the victim … [and] to exclude irrelevant and abusive inquiries regarding prior



                                     -5-
J-A35033-15

sexual conduct of sexual assault complainants.”     K.S.F., 102 A.3d at 484

(citations omitted); see also id. at 483-84 (stating that “[e]vidence that

tends to impeach a witness’ credibility is not necessarily inadmissible

because of the R[SL].”).

      Schley first argues that “the R[SL], by its plain language, does not

apply in a prosecution for endangering the welfare of children[,] and

therefore could not operate to exclude evidence within its purview.” Brief for

Appellant at 16 (citing In re M.K., 636 A.2d 198, 203 (Pa. Super. 1994)

(stating that “[t]he scope of the RSL’s application is limited to criminal

prosecutions relating to sexual offenses.”)). Schley points out that the RSL,

which is contained in Chapter 31 of the Crimes Code,5 expressly provides

that it applies only to “prosecutions under this chapter[.]”6        Brief for

Appellant at 15 (quoting 18 Pa.C.S.A. § 3104(a)) (emphasis added).

According to Schley, the plain meaning of “prosecutions under this chapter”

is clear and unambiguous. See Reply Brief for Appellant at 3 (asserting that

“there is no interpretation of the phrase ‘prosecutions under this chapter’

that would permit this Honorable Court to conclude that it means anything

other than ‘prosecutions under Chapter 31.’”); see also id. (arguing that “if


5
  Chapter 31, 18 Pa.C.S.A. §§ 3101 et seq., concerns “sexual offenses.” The
sole crime for which Schley was prosecuted, EWOC, is not contained within
Chapter 31; rather, it is contained within Chapter 43 of the Crimes Code
(concerning “offenses against the family”).
6
  The Crimes Code, Title 18, is divided into numerous Chapters. The
definitions provision of the Crimes Code, 18 Pa.C.S.A. § 103, does not define
the word “chapter” or the phrase “under this chapter.”

                                 -6-
J-A35033-15

the legislature did not intend for the R[SL] to be limited to offenses arising

out of Chapter 31, it would have said so in the statute.        The salient fact

remains that the legislature did not.”).

       In response, the Commonwealth protests that to interpret the RSL in

the manner that Schley proposes would yield an absurd result. Brief for the

Commonwealth at 11 (citing 1 Pa.C.S.A. § 1922(1) (provision of the

Statutory Construction Act (“SCA”), 1 Pa.C.S.A. § 1901 et seq., providing

that, in ascertaining the intention of the legislature in interpreting a statute,

it is presumed that the legislature did not intend a result that is absurd));

see also Brief for the Commonwealth at 12 (stating that “[t]he absurdity of

the position championed by [Schley] is illustrated best by the example of an

individual alleging that she had been the victim of an attempted rape.         A

defendant charged with attempted rape is prosecuted under 18 Pa.C.S.[A.]

§ 901, which, obviously, is not an offense under Chapter 31.            Thus, if

[Schley’s] argument is accepted, the victim in such a case would not be

protected by the R[SL,]” i.e., if attempted rape was the sole charge against

the defendant).

       Because the question before us centers on the interpretation of the

phrase “under this chapter” within section 3104(a), we must turn to the

SCA.     Pursuant to the SCA, the objective of all interpretation and

construction of statutes is to ascertain and effectuate the intention of the

legislature. 1 Pa.C.S.A. § 1921(a). The SCA requires that a reviewing court

give full meaning and effect to all words of a statute.          Id.   The best

                                   -7-
J-A35033-15

indication    of    this     intent   is   the   plain   language     of    the    statute.

Commonwealth v. Taylor, 104 A.3d 479, 490 (Pa. 2014). If the words of

a statute are clear and unambiguous, we should not look beyond the plain

meaning of the statutory language “under the pretext of pursuing its spirit.”

1 Pa.C.S.A. § 1921(b); see also id. § 1903(a) (providing that “[w]ords and

phrases shall be construed according to rules of grammar and according to

their common and approved usage ….”). “Only in the event of an ambiguity

may we consider other aspects of the statute and the statutory process, and

may we discern the General Assembly’s intent by considering, inter alia, the

various factors listed in the S[CA], Id.[] § 1921(c).”7 Commonwealth v.

Lynn, 114 A.3d 796, 818 (Pa. 2015).                   Finally, the SCA requires penal

provisions of statutes to be strictly construed. 1 Pa.C.S.A. § 1928(b)(1).

      Applying the rules of statutory construction, we conclude that the

phrase “under this chapter” in the RSL is (1) unambiguous; and (2) clear

according to its common usage. See id. § 1903(a); see also 18 Pa.C.S.A.

§ 105 (provision of the Crimes Code stating generally that “[t]he provisions

of this title shall be construed according to the fair import of their terms

….”). We must give effect to the legislature’s inclusion of the language “this

chapter”     in    section    3104    (which     is   part   of   Chapter   31).      See

Commonwealth v. Donahue, 98 A.3d 1223, 1238 (Pa. 2014) (stating that

under the SCA, a statute “must ‘be construed, if possible, to give effect to all


7
  One of the factors listed in section 1921(c) is “[t]he consequences of a
particular interpretation.” 1 Pa.C.S.A. § 1921(c)(6).

                                           -8-
J-A35033-15

its provisions,’ so that no provision is reduced to mere surplusage.”)

(quoting 1 Pa.C.S.A. § 1921(a)).          By using the terminology “prosecutions

under this chapter[,]” the legislature clearly intended to limit the application

of the RSL to prosecutions under Chapter 31. Though we can appreciate the

Commonwealth’s foregoing argument concerning the potential consequences

of this interpretation of the RSL, we are compelled to rule, for purposes of

the instant case, that because the plain language of section 3104 is clear

and unambiguous, we may neither (1) look beyond the plain meaning of the

language under the pretext of pursuing its spirit, 1 Pa.C.S.A. § 1921(b); nor

(2)    consider     the    consequences   of   a   particular   interpretation.   Id.

§     1921(c)(6).         Accordingly, because     the   sole crime for which the

Commonwealth prosecuted Schley, EWOC, is not contained within Chapter

31, the RSL did not apply to her prosecution.

        Schley additionally contends that even if the RSL’s “application is not

limited to prosecutions for sexual offenses under Chapter 31, the RSL still

would not have barred [the false sexual assault allegations] because such

evidence did not concern [the complainant’s] ‘past sexual conduct’ and did

not reflect on her reputation for chastity.”         Brief for Appellant at 17; see




                                       -9-
J-A35033-15

also id. at 18-26.8 We agree.

      In support of her argument, Schley primarily relies upon the

Pennsylvania Supreme Court’s decision in Commonwealth v. Johnson,

638 A.2d 940 (Pa. 1994).        In that case, a mentally handicapped child

accused the defendant of sexually assaulting her. Id. at 941. At trial, the

defendant attempted to introduce evidence that the victim had previously

complained to a friend that another male (one of the Commonwealth’s

witnesses) had sexually harassed her.        Id.   The defendant wanted to

introduce this evidence to argue that the victim was casting blame for the

assault on the defendant at the instigation of the other male, whom she

feared.     Id.   The defendant asserted that this evidence was critical to

undermine the credibility of the victim. Id. at 941-42.

      The Supreme Court in Johnson held that the RSL was not intended to

prohibit the evidence the defendant wished to introduce, as it did not

concern “conduct” of the victim that would reflect upon her reputation for

chastity.   Id. at 942.   More specifically, the Court held that the statutory

word “conduct” in the RSL does not include prior sexual assaults.          Id.

8
   The Commonwealth does not oppose Schley’s claim in this regard. See
Brief for the Commonwealth at 13 (stating that “the Commonwealth does
not necessarily believe that [Schley] is wrong when she contends that even
if the application of the R[SL] is not limited to prosecutions under Chapter
31, the [false sexual assault allegations] still should not have been deemed
inadmissible by the trial court under [section] 3104 because the evidence
did not concern the [complainant’s] ‘past sexual conduct[.’]”); see also id.
at 14 (stating that evidence of the false sexual assault allegations “would not
constitute past sexual ‘conduct,’ and, thus, the Commonwealth would agree
with [Schley] that, to the extent that [the trial court] ruled that such
evidence was inadmissible under the R[SL], such a ruling was incorrect.”).

                                  - 10 -
J-A35033-15

However, the Court explained that evidence of prior sexual assaults is

admissible only if is relevant and material under the traditional rules of

evidence. Id.9

     Schley contends that, in contrast to Johnson,

     [i]n the instant case, [] Schley sought to admit evidence not that
     the complainant had been a victim of a previous sexual assault,
     but evidence of the complainant’s propensity to fabricate claims
     of sexual assault. It would be even more illogical to conclude
     that the [RSL] intended to prohibit this type of testimony,
     especially when it [related to] … the complainant’s propensity to
     fabricate claims of sexual assault[,] and [such testimony] did not
     concern her “past sexual conduct” or reflect on her reputation for
     chastity.

Brief for Appellant at 19 (emphasis in original).   We agree and determine

that under Johnson, because the false sexual assault allegations did not

concern the complainant’s past sexual conduct, the RSL did not prohibit such

evidence. See Johnson, 638 A.2d at 942.

     However, this determination does not end our inquiry as to the

admissibility of the false sexual assault allegations; we must address

whether the testimony is relevant and material under the rules of evidence.

See id.; see also Pa.R.E. 401 (providing that evidence is relevant where “it

has any tendency to make a fact more or less probable than it would be

without the evidence” and it “is of consequence in determining the action.”).

     Schley argues that, unlike the situation in Johnson, the false sexual

assault allegations were relevant and material, as this evidence was


9
 Ultimately, the Court concluded the testimony proffered by the defendant
was not relevant, and therefore inadmissible. Johnson, 638 A.2d at 943.

                                 - 11 -
J-A35033-15

probative of (1) “an element of the crime [for] which [] Schley was charged

– intent. … Proof beyond a reasonable doubt that [] Schley possessed the

requisite mens rea was necessary to obtain a conviction under the

endangering     the    welfare     of   children   statute,   and    evidence   of    the

complainant’s propensity to fabricate claims of sexual assault bears directly

on   []   Schley’s    state   of   mind     in   responding   to    yet   another    such

allegation[,]”10 Brief for Appellant at 21-22; and (2) the complainant’s lack

of credibility, as her testimony was the only evidence presented by the

Commonwealth. See id. at 24-25. According to Schley,

      evidence of the … [false] sexual assault [allegations] … was
      highly probative of [Schley’s] reasonable belief that the
      complainant’s allegation against [Charles] was just one more in
      a series of fabrications, and [Schley’s] conclusion that the latest
      allegation was similarly untruthful. In other words, the excluded
      evidence was probative of whether [] Schley actually was aware
      that the complainant was in circumstances that could have
      threatened her physical or psychological welfare.

Id. at 23 (emphasis in original) (citing Commonwealth v. Cardwell, 515

A.2d 311, 314 (Pa. Super. 1986) (stating that the crime of EWOC requires a

showing of a knowing violation of a duty of care)).

      The Commonwealth counters that evidence of the false sexual assault

allegations was not relevant and thus properly excluded by the trial court.

See Brief for the Commonwealth at 15-18.               Initially, the Commonwealth

points out that Schley testified, contrary to the complainant’s testimony,


10
   As noted above, concerning two of the false sexual assault allegations, the
complainant had recanted the allegations to Schley, after Schley had
investigated the allegations.

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J-A35033-15

that the complainant never informed her that Charles had sexually assaulted

the complainant. Id. at 16 (citing N.T., 12/18/14, at 35, 38, 41, 44). The

Commonwealth argues that

      thus, the issue to be decided by [the trial court] was not whether
      [Schley] had a reasonable basis for not taking the
      [complainant’s] accusations [against Charles] seriously but,
      rather, whether or not the [complainant] had told [Schley] at all
      about what Charles [] had done to her. The fact that the
      [complainant] may have previously lied about other people
      having sexually assaulted her – allegations that [Schley] admits
      that she knew about – certainly did not make it more probable
      that [Schley] did not know about the allegations that the
      [complainant] had levied against Charles[].

Brief for the Commonwealth at 16 (emphasis in original, footnote omitted).

      We are unpersuaded by the Commonwealth’s argument. Importantly,

the trial court denied Schley’s Motion in limine, and precluded admission of

the false sexual assault allegations, before the trial commenced.        In this

regard, we are persuaded by Schley’s assertion that “by denying [] Schley’s

[M]otion before trial, the trial court’s decision inherently affected [] Schley’s

overall theory of defense and trial strategy, including, among other things,

her decision whether or not to testify.”      Reply Brief for Appellant at 11

(emphasis in original).

      Accordingly, we conclude that the trial court erred as a matter of law

in ruling that the RSL prohibited Schley from introducing the false sexual




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assault allegations at trial, and such ruling prejudiced Schley.11

      In her final issue, Schley argues that her conviction must be reversed

as being unsupported by sufficient evidence, which claim we review under

the following standard:

      The standard we apply … 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 [that of] 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.

Commonwealth v. Melvin, 103 A.3d 1, 39-40 (Pa. Super. 2014) (citation

omitted); see also Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa.

11
   In so holding, we observe that the trial court’s error was not harmless.
See Lopez, supra (stating that “[t]o constitute reversible error, an
evidentiary ruling must not only be erroneous, but also harmful or prejudicial
to the complaining party.”); see also Commonwealth v. Hairston, 84
A.3d 657, 671-72 (Pa. 2014) (setting forth the standard for harmless error).
Here, because the complainant’s testimony was the only evidence presented
against Schley, it cannot be said that the trial court’s error in precluding
Schley from introducing the false sexual assault allegations did not
contribute to the guilty verdict. See Commonwealth v. Luster, 71 A.3d
1029, 1046 (Pa. Super. 2013) (en banc) (stating that “an error may be
considered harmless only when the Commonwealth proves beyond a
reasonable doubt that the error could not have contributed to the verdict.”)
(citation omitted).

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2000) (stating that the Commonwealth is entitled to all reasonable

inferences arising out of evidence presented).

      The crime of EWOC is defined, in relevant part, as follows: “A parent,

guardian, or other person supervising the welfare of a child under 18 years

of age commits a misdemeanor of the second degree if he [or she]

knowingly endangers the welfare of the child by violating a duty of care,

protection or support.” 18 Pa.C.S.A. § 4304(a)(1) (emphasis added); see

also Commonwealth v. Cardwell, 515 A.2d 311, 314 (Pa. Super. 1986)

(analyzing the section of the Crimes Code that defines kinds of culpability,

18 Pa.C.S.A. § 302(b), and stating that “[i]f a violation of a duty of care can

include an omission, then, a person can act ‘knowingly’ in omitting to act

with respect to that duty.”)).

      Because the crime of EWOC is a specific intent crime, and the
      intent required is the knowing violation of a duty of care, the
      Superior Court has long interpreted the intent element to require
      that: (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. Lynn, 114 A.3d 796, 819 (Pa. 2015) (internal citations

omitted).

      Here, Schley argues that the Commonwealth failed to establish the

intent element of EWOC for the following reasons:

      The evidence in the present case, when taken in the light most
      favorable to the Commonwealth as the verdict winner,
      established that the complainant told [] Schley of [Charles’s]

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      inappropriate conduct that that [] Schley confronted [Charles]
      about said allegations, which [Charles] denied.           …    The
      Commonwealth presented no evidence that [] Schley personally
      observed sexual abuse of the complainant at the hands of []
      Schley; for example, by walking in on such abuse. Moreover,
      the evidence failed to establish that [] Schley had any reason to
      even suspect [that sexual] abuse [by Charles] was occurring,
      independent of the complainant’s allegations.          [] Schley’s
      decision to not report the complainant’s allegations to authorities
      clearly indicated that she chose to credit [Charles’s] version of
      events over the complainant’s. And while [Schley’s] decision
      may have been a mistake in judgment that “potentially”
      endangered the complainant, the evidence does not establish as
      a matter of law that [] Schley knew [that] she placed the
      complainant in circumstances that threatened her physical or
      psychological welfare.

Brief for Appellant at 33-34 (emphasis and paragraph break omitted).        In

support of her claim, Schley relies primarily upon Commonwealth v.

Miller, 600 A.2d 988 (Pa. Super. 1992), which, Schley contends, is

analogous to the instant case. See Brief for Appellant at 31-32, 34.

      In Miller, this Court reversed the defendant/mother’s conviction for

EWOC, where her infant child had died in a residential fire, on the basis that

the evidence was insufficient to establish that the defendant “knowingly”

allowed the child to sleep unattended while defendant and the child’s father

went out “clubbing,” after the father had falsely assured the defendant that

the child would be watched by a tenant in the apartment building. Miller,

600 A.2d at 991 (holding that “we cannot find as a matter of law that [the

defendant] was aware that she had placed her child in circumstances that

threatened the child’s physical or psychological welfare or that her failure to

check on the alleged babysitting arrangements was unreasonable ….”).



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      Concerning the applicability of Miller to the instant case, the

Commonwealth counters that

      [although it] agrees with [Schley] that where the evidence
      suggests that a defendant believes that the welfare of a child in
      her care is not endangered, the defendant is not guilty of
      endangering the welfare of that child, even if that belief turns
      out to be incorrect[,] [Schley’s] sufficiency claim fails here
      because the evidence did, in fact, show that she believed that
      the [complainant] had been sexually abused by [Charles].

Brief for the Commonwealth at 21-22. We agree.

      The evidence, viewed in the light most favorable to the Commonwealth

as the verdict winner, established that Schley knew about Charles’s sexual

assaults of the complainant,12 but encouraged the complainant to not report

the assaults to the authorities.    The complainant testified that Schley, in

response to the complainant’s bringing these assaults to Schley’s attention,

had stated to the complainant, “what happens at the house doesn’t leave the

house.” N.T., 12/18/14, at 22. Moreover, when the complainant was asked

why she had never reported these assaults to personnel at her school, she

replied that “we wasn’t [sic] allowed to talk about it.” Id. The trial court, as

the fact-finder, was free to draw a reasonable inference from this evidence



12
   Although Schley testified, contrary to the complainant’s testimony, that
the complainant never informed Schley of any sexual assaults, the trial
court, as the fact-finder, ostensibly found the complainant to be more
credible. See Commonwealth v. Hall, 830 A.2d 537, 542 (Pa. 2003)
(stating that “[i]n instances where there is conflicting testimony, it is for the
[fact-finder] to determine the weight to be given the testimony.”) (citation
omitted). We may not re-weigh the evidence or substitute our judgment for
that of the fact-finder on matters of credibility. See Melvin, 103 A.3d at
39-40.

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that Schley knew that the assaults occurred, but that she had pressured the

complainant to not report them.

      Accordingly, while we conclude that the Commonwealth presented

sufficient evidence to establish all of the elements of EWOC, in light of the

trial court’s above-mentioned error in prohibiting admission of the false

sexual assault allegations into evidence, we vacate Schley’s judgment of

sentence and remand for a new trial, wherein Schley may introduce such

evidence at trial.

      Judgment       of   sentence   vacated.   Case   remanded   for   further

proceedings consistent with this Opinion. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/19/2016




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