J-S52022-18, J-S52023-18

                               2018 PA Super 397

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :         PENNSYLVANIA
                         Appellant        :
             v.                           :
                                          :
                                          :
 PIETRINA CECILIA HOFFMAN                 :
                                          :
                                          :   No. 1984 MDA 2017

            Appeal from the Order Entered November 21, 2017
   In the Court of Common Pleas of Schuylkill County Criminal Division at
                      No(s): CP-54-CR-0000373-2016

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :         PENNSYLVANIA
                                          :
             v.                           :
                                          :
                                          :
 PIETRINA CECILIA HOFFMAN                 :
                                          :
                   Appellant              :   No. 2002 MDA 2017

    Appeal from the Judgment of Sentence Entered November 29, 2017
   In the Court of Common Pleas of Schuylkill County Criminal Division at
                      No(s): CP-54-CR-0000373-2016


BEFORE:   BENDER, P.J.E., McLAUGHLIN, J., and STRASSBURGER*, J.

OPINION BY McLAUGHLIN, J.:                         FILED OCTOBER 31, 2018

     After a jury found Pietrina Cecilia Hoffman guilty of various crimes in the

tragic death of an infant, N.D., the trial court granted her motion for a

judgment of acquittal on the convictions for third-degree murder and

aggravated assault, concluding that the Commonwealth had failed to present

sufficient evidence of malice. The Commonwealth has appealed from the order

entering the judgments of acquittal. Hoffman has also filed an appeal and

challenges her judgment of sentence on various grounds.

____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S52022-18, J-S52023-18



      We now consolidate the two appeals, and for the reasons that follow,

we affirm the trial court in all respects, with one exception. As the court

imposed sentence on Hoffman for two counts of endangering the welfare of a

child, graded as felonies of the third degree, without any evidence establishing

a course of conduct and where the jury was not charged to make such finding,

we vacate the judgment of sentence and remand.

      We derive the following statement of facts from the trial court’s opinion

addressing Hoffman’s post-sentence motion. See Trial Ct. Opinion, filed

11/21/2017, at 10-17. In the afternoon of January 10, 2016, emergency

personnel were dispatched to Hoffman’s residence, where they discovered an

infant, later identified as N.D., lying on the floor, dead. Also present were

Hoffman and another young child, A.W. In her initial statement to police,

Hoffman indicated that she went to sleep with A.W. on a loveseat in her living

room. She said she had put N.D. to sleep on the floor with a blanket because

she wouldn’t sleep in her playpen. According to Hoffman, she woke at 2:00

a.m., noticed that N.D. was purple and cold to the touch, and fell back asleep

until 2:00 p.m., whereupon she called 9-1-1.

      Thereafter, Hoffman gave two statements to police in which certain

details of her story changed. These discrepancies made it difficult for

authorities to establish a timeline of events leading to N.D.’s death. For

example, in her first statement, Hoffman suggested that N.D. was warm at

5:00 a.m., but that she was unsure if N.D. was breathing. In a second

statement, Hoffman indicated that N.D. was both alive and dead at 5:00 a.m.

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Hoffman maintained that if she knew something was wrong, she would have

called 9-1-1. In both of her statements to police, Hoffman indicated that she

had taken numerous sleeping aids over the course of the day preceding N.D.’s

death, including several Soma pills, liquid ZzzQuil, and a morphine pill.

Further, during her second statement, Hoffman openly wondered how she had

suffered a bruise to one leg and if she had fallen off the loveseat onto N.D.

      At trial, the Commonwealth presented expert testimony from the

coroner, who concluded that N.D. died from asphyxiation by smothering

approximately four to 12 hours before emergency personnel arrived. The

coroner also found evidence of abrasions and internal hemorrhaging.

According to the coroner, N.D. suffered an impact, followed by significant

weight and pressure lasting approximately two minutes. The coroner agreed

that the injuries suffered by N.D. could have been caused by a large person

falling off a couch in her sleep or drug-induced stupor onto the child. The

coroner also suggested that N.D. may have survived if resuscitation efforts

had been started immediately.

      The children’s caretaker, Cecelia Gray, testified that Hoffman cared for

the children several days per week and that Hoffman mistakenly believed that

she was A.W.’s grandmother. According to Gray, Hoffman had discussed

adopting the children. On the day preceding N.D.’s death, Hoffman had taken

her for medical treatment because of a cold.

      Following trial, a jury convicted Hoffman of third-degree murder,

involuntary manslaughter, aggravated assault, two counts of endangering the

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welfare of a child, two counts of recklessly endangering another person, and

person not to possess a firearm.1 After a presentence investigation, the trial

court sentenced Hoffman to an aggregate 17 to 34 years of incarceration.

       Hoffman timely filed a post-sentence motion, asserting (1) the sentence

for endangering the welfare of a child merges with involuntary manslaughter;

(2) imposition of the sentencing enhancement defined at 204 Pa.Code § 303.9

violates the mandates of Apprendi v. New Jersey, 530 U.S. 466 (2000);2

(3) the court erred in permitting the Commonwealth to amend its Information

after presentation of its case in chief; and (4) the Commonwealth failed to

present sufficient evidence of malice as required to establish third-degree

murder     and     aggravated      assault.    Hoffman’s   Post-Sentence   Motion,

08/16/2017. Following briefing by the parties, the trial court granted

judgment of acquittal on Hoffman’s fourth claim and vacated her judgment of

sentence, but denied all other relief. See Order, 11/21/2017. Thereafter, the

court resentenced Hoffman to an aggregate five years and nine months to 12

years of incarceration.

       The Commonwealth timely appealed from the order granting in part

Hoffman’s post-sentence motion and, in its Pa.R.A.P. 1925(b) statement,
____________________________________________


1 See, respectively, 18 Pa.C.S.A. §§ 2502(c), 2504(a), 2702(a)(1),
4304(a)(1), 2705, and 6105.

2 In relevant part, the enhancement adds 24 months to the lower limit of the
standard range of the sentencing guidelines and sets the statutory limit as the
upper limit. 204 Pa.Code § 303.9(k). The enhancement further references the
statutory requirement that “[t]he sentence imposed will be served
consecutively to any other sentence.” Id. (citing 42 Pa.C.S.A. § 9711.1).

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challenged the court’s conclusion that the Commonwealth had failed to

establish malice. Hoffman timely appealed from the judgment of sentence. In

her court-ordered Pa.R.A.P. 1925(b) statement, Hoffman renewed claims first

made in her post-sentence motion that were rejected by the court and further

asserted that the Commonwealth had presented insufficient evidence to

sustain a conviction for recklessly endangering another person as to A.W. In

a responsive statement to the parties’ appeals, the trial court directed this

Court’s attention to its November 21, 2017 opinion. The trial court also

concluded that Hoffman’s sufficiency claim was waived for failing to specify

the elements of reckless endangerment that the Commonwealth failed to

establish. See Trial Ct. Pa.R.A.P. 1925(a) Statement.

                        The Commonwealth’s Appeal

     In its appeal, the Commonwealth asserts the trial court erred when it

determined that the Commonwealth had presented insufficient evidence of

malice necessary to support a conviction for either third-degree murder or

aggravated assault. See Commonwealth’s Br. (as Appellant) at 4. According

to the Commonwealth, viewed in the light most favorable to it as the verdict

winner, the evidence clearly established malice. Id. at 15. In particular, the

Commonwealth asserts that Hoffman’s “decision to return to bed after

believing [N.D.] may be dead was more than likely the result of her self-

induced cocktail of medication.” Id. The Commonwealth maintains that, had

Hoffman sought help immediately, N.D. might have survived. Id. at 19.

Moreover,   according    to   the   Commonwealth,    Hoffman’s    inconsistent

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J-S52022-18, J-S52023-18



statements to police regarding the timeline of events demonstrated a guilty

conscience. Id. at 18. Finally, the Commonwealth suggests that the jury was

free to infer from the coroner’s testimony that the initial force of impact

suffered by N.D. was intentional. Id. at 20.

      Procedurally, in her post-sentence motion, Hoffman sought judgment of

acquittal as to third-degree murder and aggravated assault. In so doing,

Hoffman challenged the sufficiency of the evidence presented to establish the

element of malice, required for both crimes. The following standard is well

settled:

      In passing upon a post-verdict motion for judgment of acquittal,
      a trial court is limited to determining the presence or absence of
      that quantum of evidence necessary to establish the elements of
      the crime. To determine the legal sufficiency of evidence
      supporting a jury's verdict of guilty, this Court must view the
      evidence in the light most favorable to the Commonwealth, which
      has won the verdict, and draw all reasonable inferences in its
      favor. We then determine whether the evidence is sufficient to
      permit a jury to determine that each and every element of the
      crimes charged has been established beyond a reasonable doubt.
      It is the function of the jury to pass upon the credibility of the
      witnesses and to determine the weight to be accorded the
      evidence produced. The jury is free to believe all, part or none of
      the evidence introduced at trial. The facts and circumstances
      established by the Commonwealth need not be absolutely
      incompatible with the defendant's innocence, but the question of
      any doubt is for the jury unless the evidence be so weak and
      inconclusive that as a matter of law no probability of fact can be
      drawn from the combined circumstances.




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J-S52022-18, J-S52023-18



Commonwealth v. Feathers, 660 A.2d 90, 94-95 (Pa.Super. 1995)

(formatting modified; internal quotation marks and citations omitted).3

       In   Pennsylvania,      murder     is   a   killing   conducted   with   “malice

aforethought.” Commonwealth v. Packer, 168 A.3d 161, 168 (Pa. 2017)

(citing Commonwealth v. Santos, 876 A.2d 360, 363 (Pa. 2005)). Murder

of the third degree is defined as “[a]ll other kinds of murder,” i.e., in contrast

to those murders committed intentionally (first-degree) or during the

perpetration of a felony (second-degree). 18 Pa.C.S.A. § 2502. In relevant

part, aggravated assault is established where a defendant “attempts to cause

serious bodily injury to another, or causes such injury intentionally, knowingly

or recklessly under circumstances manifesting extreme indifference to the

value of human life.” 18 Pa.C.S.A. § 2702(a)(1). The mens rea required for

both third-degree murder and aggravated assault is malice. Packer, 168 A.3d

at 168 (noting that “only the result of the crimes differ”).

       Our Supreme Court has defined malice as follows:

       [I]t is not malice in its ordinary understanding alone, a particular
       ill-will, a spite or a grudge. Malice is a legal term, implying much
       more. It comprehends not only a particular ill-will, but every case
       where there is 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.


____________________________________________


3  We note that a factfinder’s verdict of acquittal is not subject to further
review. Feathers, 660 A.2d at 94. However, a trial court’s decision
overturning the factfinder’s verdict based upon the sufficiency of the evidence
is subject to appellate review. Id.

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J-S52022-18, J-S52023-18



Id. at 168 (quoting Commonwealth v. Drum, 58 Pa. 9, 15 (1868)). Further,

our Supreme Court has recognized that “ordinary recklessness” is not

sufficient to establish malice.

      Between the recklessness or culpable negligence necessary to
      support the charge of involuntary manslaughter, and the specific
      intent to kill which is a prerequisite of murder of the first degree,
      there is a class of wanton and reckless conduct which manifests
      such an extreme indifference to the value of human life which
      transcends the negligent killing and reaches to the level of malice.

Id. at 168-69 (quoting Commonwealth v. Taylor, 337 A.2d 545, 548

(1975)). “The quintessential example of the level of recklessness required to

constitute malice is a defendant who shoots a gun into a crowd.” Id. at 169.

      As noted by the trial court, “[t]his was a deeply distressing case.” Trial

Ct. Opinion at 18. The court concluded that the Commonwealth had

established that Hoffman was grossly negligent but that it had failed to

establish that Hoffman acted with malice. Id. In particular, the court noted

that the sole theory presented by the Commonwealth, through the coroner’s

testimony, was that Hoffman rolled off a couch onto N.D. while in a drug-

induced stupor. Id. at 19. The court was of the opinion, however, that the

Commonwealth had failed to provide evidence that, by taking the medication,

Hoffman consciously disregarded an extremely high risk that her actions would

result in one of the children’s death. Id. at 20-21; but see, e.g., Packer,

168 A.3d at 170-71 (concluding that defendant’s actions constituted malice

where defendant huffed an illicit drug both immediately prior to and while




                                      -8-
J-S52022-18, J-S52023-18



operating vehicle on public highway, knowing from experience effects were

immediate and debilitating).

         The court also rejected the Commonwealth’s contention that Hoffman’s

delay in seeking emergency help caused N.D.’s death and established malice.

Id. at 21 (citing in support Commonwealth v. Barnhart, 497 A.2d 616

(Pa.Super. 1985) (“Conviction for involuntary manslaughter requires proof

that the death was ‘a direct result’ of appellants' failure to seek medical

treatment.”). The court stated that, despite inconsistencies in Hoffman’s

statements to police, no evidence suggested “how long [N.D.] had stopped

breathing before Hoffman became aware that she had stopped.” Id. Indeed,

as noted by the court, the Commonwealth asked the jury to conclude that

N.D. died because Hoffman failed to wake when she fell from the couch. Id.

at 23.

         The trial court addressed the Commonwealth’s consciousness of guilt

argument. As noted by the court, this argument “adds little to the resolution

of the issues.” Id. at 26. Clearly, while the jury was free to conclude that

Hoffman’s statements to police displayed consciousness of guilt, there was no

evidence to suggest the crime for which she felt guilty or that her statements

evinced anything more than a general sense of responsibility for the infant’s

death. Id. (concluding that the statements “say nothing about the distinction

between murder and manslaughter”).

         Finally, the court dismissed the Commonwealth’s belated suggestion

that the jury could have inferred from the evidence that Hoffman intentionally

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J-S52022-18, J-S52023-18



suffocated N.D. Id. at 26-27 (noting that the Commonwealth’s argument is

“completely at odds with [its] decision to withdraw the first[-]degree murder

charge prior to trial”). We, too, reject this suggestion, as the record does not

support such an inference. At no time did the Commonwealth solicit testimony

suggesting that the injuries suffered by N.D. were intentional. To the contrary,

on direct examination and in response to a hypothetical proposed by the

Commonwealth, the coroner testified that N.D. could have suffered the

injuries described when an adult person fell upon the child “while sleeping or

in a drug-induced stupor.” Notes of Testimony (N.T.), 06/27-28/2017, at 68-

69.   Thereafter,   on   cross-examination,   the   coroner   clarified   that   his

designation of the manner of death, here homicide, “does not imply animus

or intent or anything that, [sic] of that nature.” Id. at 79. When asked if N.D.’s

death could have been accidental and presented again with a hypothetical

nearly identical to that posed by the Commonwealth, the coroner agreed that

the injuries suffered by N.D. could have occurred “if someone fell off a couch

approximately one and a half, two feet weighing in excess of 200 pounds in

their sleep onto the child.” Id. at 80.

      For these reasons, following our review of the record, the parties’ briefs,

and the relevant law, we agree with the trial court’s well-reasoned analysis.

Trial Ct. Opinion at 8-27. Thus, as the Commonwealth failed to establish

malice, we affirm the judgment of acquittal as to third-degree murder and

aggravated assault. See Packer, 168 A.3d at 168-69; Feathers, 660 A.2d at

94-95.

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J-S52022-18, J-S52023-18



                             Hoffman’s Appeal

     We now turn to the issues raised on appeal by Hoffman:

     1. [Whether] endangering the welfare of a child [should] merge
     with involuntary manslaughter for sentencing purposes[.]

     2. [Whether] the mandatory sentences set forth in [204 Pa.Code
     § 303.9] adding 24 months to the lower limit of the standard range
     and assigning the statutory limit as the upper limit of the standard
     guideline   sentencing    range     [are]   unconstitutional     and
     [un]enforceable[.]

     3. [Whether] the court err[ed] in allowing the Commonwealth to
     amend the criminal information on the charge of endangering the
     welfare of a child from the specific charge of starvation to a
     general charge after the Commonwealth had rested[.]

     4. [Whether] the Commonwealth fail[ed] to present sufficient
     evidence to sustain the conviction on the charge of recklessly
     endangering another person as [to] the child [A.W.]

Hoffman’s Br. (as Appellant) at 4 (unnecessary capitalization omitted).

     In her first issue, Hoffman asserts that the crime of endangering the

welfare of children merges with involuntary manslaughter for sentencing

purposes. Id. at 9 (citing in support Commonwealth v. Martir, 712 A.2d

327 (Pa.Super. 1998); Commonwealth v. Bird, 597 A.2d 1169 (Pa.Super.

1991)). An assertion that crimes should merge for sentencing purposes raises

a question of law, subject to our de novo review. Commonwealth v.

Martinez, 153 A.3d 1025, 1031 (Pa.Super. 2016).

     This claim is without merit. As the trial court noted, see Trial Ct. Opinion

at 3, Hoffman cites case law that predates the enactment of 42 Pa.C.S.A. §




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9765 (adopted December, 9, 2002; effective 60 days thereafter), which

provides:

      No crimes shall merge for sentencing purposes unless the crimes
      arise from a single criminal act and all of the statutory elements
      of one offense are included in the statutory elements of the other
      offense. Where crimes merge for sentencing purposes, the court
      may sentence the defendant only on the higher graded offense.

42 Pa.C.S.A. § 9765. Involuntary manslaughter is defined as follows:

      A person is guilty of involuntary manslaughter when as a direct
      result of the doing of an unlawful act in a reckless or grossly
      negligent manner, or the doing of a lawful act in a reckless or
      grossly negligent manner, he causes the death of another person.

18 Pa.C.S.A. § 2504(a). In relevant part, endangering the welfare of children

is defined as follows:

      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.A. § 4304(a)(1). There is no commonality in the elements to these

crimes. Accordingly, we discern no error in the court’s decision denying

Hoffman relief on this claim. 42 Pa.C.S.A. § 9765.

      Next, Hoffman asserts that the sentencing enhancement set forth in 204

Pa.Code § 303.9(k) is unconstitutional. Hoffman’s Br. (as Appellant) at 9. This

claim is moot. The enhancement is applicable when the defendant is guilty of

third-degree murder of a victim younger than age 13. 204 Pa.Code § 303.9(k).

In relevant part, the enhancement adds 24 months to the lower limit of the


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J-S52022-18, J-S52023-18



standard range of the sentencing guidelines and sets the statutory limit as the

upper    limit.   Id.   The   enhancement      further   references   the   statutory

requirement that “[t]he sentence imposed will be served consecutively to any

other sentence.” Id. (citing 42 Pa.C.S.A. § 9711.1). As we have affirmed the

trial court’s decision granting Hoffman judgment of acquittal on the charge of

murder in the third degree, we do not review this claim.

        Third, Hoffman asserts the court erred in permitting the Commonwealth

to amend the Information to remove language from the count charging

endangering the welfare of children as to A.W. See Hoffman’s Br. (as

Appellant) at 11. As described by Hoffman, the Information at first specifically

alleged that Hoffman was starving A.W. Id. Following the Commonwealth’s

case in chief, during which it presented no evidence of starvation, the trial

court granted the Commonwealth leave to amend to remove the allegation of

starvation, leaving “general language of endangerment without any specifics.”

Id. According to Hoffman, this amendment was prejudicial because it “added

a charge based on facts unknown” to her. Id. at 14.

        This claim is without merit. A criminal information is a formal statement

charging the commission of an offense. See Pa.R.Crim.P. 103. Its purpose “is

to apprise the defendant of the charges . . . so that [the defendant] may have

a fair opportunity to prepare a defense.” Commonwealth v. Brown, 727

A.2d 541, 543 (Pa. 1999). The Commonwealth may amend an information,

provided the defendant incurs no prejudice.




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J-S52022-18, J-S52023-18


     The court may allow an information to be amended, provided that
     the information as amended does not charge offenses arising from
     a different set of events and that the amended charges are not so
     materially different from the original charge that the defendant
     would be unfairly prejudiced. Upon amendment, the court may
     grant such postponement of trial or other relief as is necessary in
     the interests of justice.

Pa.R.Crim.P. 564; see Commonwealth v. Sinclair, 897 A.2d 1218, 1221

(Pa.Super. 2006). Relevant factors to consider when evaluating whether a

defendant has been prejudiced by an amendment include:

     (1) whether the amendment changes the factual scenario
     supporting the charges; (2) whether the amendment adds new
     facts previously unknown to the defendant; (3) whether the entire
     factual scenario was developed during a preliminary hearing; (4)
     whether the description of the charges changed with the
     amendment; (5) whether a change in defense strategy was
     necessitated by the amendment; and (6) whether the timing of
     the Commonwealth's request for amendment allowed for ample
     notice and preparation.

Commonwealth v. Mentzer, 18 A.3d 1200, 1203 (Pa.Super. 2011).

     Here, as the trial court noted, the information initially alleged that

Hoffman failed to provide A.W. adequate care, both “putting the child at risk

and resulting in the beginning stages of starvation.” Information, 06/02/2017,

at 1 (emphasis added); see Trial Ct. Opinion at 7. The removal of the

allegation relating to starvation did not prejudice Hoffman. We agree with the

trial court that Hoffman was well aware that the Commonwealth was alleging

that she had failed to provide proper care for A.W. due to the medication she

had taken, as the Commonwealth presented the factual predicate for this




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allegation during Hoffman’s preliminary hearing. Id.4 Finally, as the trial court

noted, in response to the Commonwealth’s amendment, Hoffman sought no

recess or continuance to adjust her strategy, nor has she suggested the

manner in which her strategy was forced to change. Id. at 7-8. Thus, based

upon these considerations, we agree that Hoffman incurred no prejudice when

the Commonwealth amended the Information. See Mentzer, 18 A.3d at

1203.

        Next,   Hoffman     challenges     the   grading   of   both   convictions   for

endangering the welfare of children as felonies of the third degree. See

Hoffman’s Br. (as Appellant) at 12-13.5 She raises this issue for the first time

in this case in her brief to this Court. Generally, issues not raised with the trial

court are waived. See Commonwealth v. Rossetti, 863 A.2d 1185, 1193

(Pa.Super. 2004); Pa.R.A.P. 302(a). However, “[a] claim that the court

improperly graded an offense for sentencing purposes implicates the legality

of a sentence.” Commonwealth v. Pantalion, 957 A.2d 1267, 1271

(Pa.Super. 2008). “[A] challenge to the legality of sentence is never waived

and may be the subject of inquiry by the appellate court sua sponte.”

Rossetti, 863 A.2d at 1193. She thus did not waive this issue. Our standard


____________________________________________


4No transcript of a preliminary hearing appears in the certified record, but
Hoffman does not challenge the court’s assertion. See generally Hoffman’s
Br. (as Appellant).

5 The Commonwealth has offered no counter-argument to Hoffman’s
challenge. See generally, Commonwealth’s Br. (as Appellee).

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of review is de novo, and the scope of our review is plenary. Commonwealth

v. Felder, 75 A.3d 513, 515 (Pa.Super. 2013).

       From the time of Hoffman’s criminal conduct and the filing of charges

through the date of her trial and conviction, child endangerment was defined

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.

          (2) A person commits an offense if the person, in an official
          capacity, prevents or interferes with the making of a report
          of suspected child abuse under 23 Pa.C.S. Ch. 63 (relating
          to child protective services).

          (3) As used in this subsection, the term “person supervising
          the welfare of a child” means a person other than a parent
          or guardian that provides care, education, training or control
          of a child.

       (b) Grading.--An offense under this section constitutes a
       misdemeanor of the first degree. However, where there is a course
       of conduct of endangering the welfare of a child, the offense
       constitutes a felony of the third degree.

18 Pa.C.S.A. § 4304 (eff. 01/29/2007 to 08/27/2017).6

____________________________________________


6 In contrast, the current statutory language has redefined the grading of
this offense:

       (b) Grading.--

       (1) Except as provided under paragraph (2), the following apply:



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       Here, as noted by Hoffman, “no course of conduct was charged after

removing starvation from the criminal information[,] and the jury was not

charged to determine a course of conduct.” Hoffman’s Br. (as Appellant) at

13. Thus, according to Hoffman, “the convictions can rise no higher than a

misdemeanor of the first degree.” Id. We agree.

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

addressed this issue. In that case, Popow was charged with various offenses

including endangering the welfare of a child, following an altercation between

him, his ex-girlfriend, and others. Id. at 15. At one point during the

altercation, Popow picked up his four-year-old daughter, and when his ex-

girlfriend and others tried to retrieve the child from him, Popow fell down a

____________________________________________


          (i) An offense under this section constitutes a misdemeanor
          of the first degree.

          (ii) If the actor engaged in a course of conduct of
          endangering the welfare of a child, the offense constitutes a
          felony of the third degree.

          (iii) If, in the commission of the offense under subsection
          (a)(1), the actor created a substantial risk of death or
          serious bodily injury, the offense constitutes a felony of the
          third degree.

          (iv) If the actor’s conduct under subsection (a)(1) created a
          substantial risk of death or serious bodily injury and was
          part of a course of conduct, the offense constitutes a felony
          of the second degree.

       (2) The grading of an offense under this section shall be increased
       one grade if, at the time of the commission of the offense, the
       child was under six years of age.

18 Pa.C.S.A. § 4304(b) (eff. 08/28/2017).

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flight of stairs while holding the child. Id. Popow was convicted and sentenced

on the endangerment charge graded as a felony. Id. On appeal, he challenged

the legality of his sentence, asserting (1) neither the information nor the

evidence made out a course of conduct that would raise the charge from a

misdemeanor to a felony and (2) the jury was not instructed to make a finding

on course of conduct. Id. We agreed, concluding that “in order to be graded

as a third-degree felony, the Commonwealth must allege in the information

and present evidence at trial of the additional factor of ‘course of conduct,’

and the jury must be instructed on such.” Id. at 18. We thus remanded for

resentencing. Id. at 18.

      Here, neither of the child endangerment counts alleged a course of

conduct. Count Five alleged conduct as to N.D.:

      COUNT 5: ENDANGERING WELFARE OF CHILD – (FELONY 3)

      Being a guardian or other person supervising the welfare of a child
      under 18 years of age, namely, [N.D.], age (14) months old, did
      knowingly endanger the welfare of said child by violating a duty
      of care, protection or support by failing to provide adequate care
      to said young child resulting in her death, all of which constitutes
      Endangering Welfare of Children—As Guardian, in violation of
      Section 4304(a)(1) of the Pennsylvania Crimes Code, Act of
      December 6, 1972, as amended, [18 Pa.C.S. Section 4304(a)(1)].

Information, 06/02/2017, at 1 (bold-type removed; otherwise verbatim).

Following its amendment, the Commonwealth alleged the following conduct

as to A.W.:

      COUNT 6: ENDANGERING WELFARE OF CHILD – (FELONY 3)




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J-S52022-18, J-S52023-18


       Being a guardian or other person supervising the welfare of a child
       under 18 years of age, namely, a (2) year old juvenile, did
       knowingly endanger the welfare of said child by violating a duty
       of care, protection or support by failing to provide adequate care
       to said young child putting the child at risk, all of which constitutes
       Endangering Welfare of Children—As Guardian, in violation of
       Section 4304(a)(1) of the Pennsylvania Crimes Code, Act of
       December 6, 1972, as amended, [18 Pa.C.S. Section 4304(a)(1)].

Id.

       Further, the Commonwealth acknowledged that there was no evidence

of starvation (as to either child), nor did it present other evidence in support

of a course of conduct finding. To the contrary, in support of the

endangerment charges, the Commonwealth referenced the medication

consumed by Hoffman. See N.T. at 211, 237.7 Finally, the Commonwealth did

not request, and the trial court did not instruct the jury on course of conduct.

See id. at 215, 253-54.

       For these reasons, the trial court erred when it sentenced Hoffman for

two counts of endangering the welfare of children graded as felonies of the

____________________________________________


7 The Commonwealth also referenced coffee grounds found on the floor. N.T.
at 211, 237. In a statement given to police, Hoffman stated that she had made
coffee at 5:00 a.m., but went back to sleep, and when she awoke at 2:00
p.m., she discovered coffee grounds on the floor. See id. at 192-93. The
coroner testified that he found coffee grounds in N.D.’s stomach (further
opining that they were ingested well prior and unrelated to the asphyxiation
event), and the resulting level of caffeine in N.D.’s blood was well below any
toxic range. Id. at 62-63, 74-78, 80-81. While the jury was free to infer that
the coffee grounds were hazardous to the children, the presence of coffee
grounds does not transform Hoffman’s conduct during the early morning hours
of January 10, 2016, into a course of conduct. See Popow, 844 A.2d at 17
(“[T]he 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.”)

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J-S52022-18, J-S52023-18



third degree. We therefore vacate the judgment of sentence imposed for these

crimes and remand for resentencing with consideration of the Sentencing

Guidelines for these crimes graded as misdemeanors of the first degree.

Popow, 844 A.2d at 18. Moreover, as the court ordered Hoffman to serve

these sentences consecutively to those imposed for involuntary manslaughter

and the firearm offense, see N.T. Resentencing, 11/29/2017, at 12, our ruling

may upset the court’s sentencing scheme. Accordingly, we remand for

resentencing on all counts. See, e.g., Commonwealth v. Serrano, 61 A.3d

279, 287-88 (Pa.Super. 2013).

      Finally, in her fourth issue, Hoffman contends that the Commonwealth

failed to present sufficient evidence to sustain the conviction on the charge of

recklessly endangering another person as to A.W. See Hoffman’s Br. (as

Appellant) at 14.

      As noted by the trial court, Hoffman’s Rule 1925(b) Statement “failed to

specify the element or elements which the Commonwealth failed to prove.”

Trial Ct. Pa.R.A.P. 1925(a) Statement at 2 (advocating waiver of this issue);

see also Hoffman’s Pa.R.A.P. 1925(b) Statement at 1 ¶ 4.

      [W]hen challenging the sufficiency of the evidence on appeal, the
      [a]ppellant's [Pa.R.A.P.] 1925 statement must specify the
      element or elements upon which the evidence was insufficient in
      order to preserve the issue for appeal. Such specificity is of
      particular importance in cases where, as here, the [a]ppellant was
      convicted of multiple crimes each of which contains numerous
      elements that the Commonwealth must prove beyond a
      reasonable doubt.




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J-S52022-18, J-S52023-18



Commonwealth v. Gibbs, 981 A.2d 274, 281 (Pa.Super. 2009) (internal

quotation marks and citations omitted). Accordingly, we deem this issue

waived. Id.; see also Commonwealth v. Williams, 959 A.2d 1252

(Pa.Super. 2008).8

       Based on the foregoing analysis, we affirm the order of court entered

November 21, 2017, granting Hoffman judgment of acquittal on the charge of

third-degree murder and aggravated assault. Regarding Hoffman’s appeal, we

further affirm the trial court, concluding that (1) Hoffman’s merger claim is

without merit; (2) her sentencing claim related to 204 Pa.Code § 303.9 is

moot; (3) her allegation that the amendment to the Information was

prejudicial is meritless; and (4) her sufficiency claim regarding the charge of

recklessly endangering another person is waived and, further, without merit.

____________________________________________


8 Absent waiver, we briefly note that “[a] person commits a misdemeanor of
the second degree if he recklessly engages in conduct which places or may
place another person in danger of death or serious bodily injury.” 18 Pa.C.S.A.
§ 2705. Viewed in the light most favorable to the Commonwealth, the
evidence established that Hoffman consumed various sleep-aid medications in
sufficient quantity that she was unable to care for a two-year-old toddler. In
fact, in a drug-induced stupor, Hoffman failed to wake when she rolled off a
couch onto an infant, thus causing the infant’s death. In light of this evidence,
the jury was free to conclude that Hoffman engaged in reckless conduct that
placed or may have placed A.W. in danger of death or serious bodily injury.

This conclusion is not inconsistent with our determination that the evidence
did not establish third-degree murder or aggravated assault. The mens rea
standard for those charges is different than that applicable to reckless
endangerment of another person. Compare Packer, 168 A.3d at 168
(discussing malice), with Commonwealth v. Cottam, 616 A.2d 988, 1004
(Pa.Super. 1992) (“The mens rea required for [reckless endangerment of
another person] is a conscious disregard of a known risk of death or great
bodily harm to another person.”).

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J-S52022-18, J-S52023-18



Nevertheless, we conclude that the trial court imposed an illegal sentence

when it sentenced Hoffman to two counts of endangering the welfare of

children, graded as felonies of the third degree. Accordingly, we vacate the

judgment of sentence and remand for resentencing.

     Appeals consolidated; order affirmed; judgment of sentence vacated;

case remanded for resentencing; jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/31/2018




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