J-S20005-17



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA


                   v.

JASON VIRGILE

                        Appellant                    No. 2523 EDA 2015


           Appeal from the Judgment of Sentence July 31, 2015
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0000982-2012


BEFORE: BOWES, J., OTT, J., AND FORD ELLIOTT, P.J.E.

MEMORANDUM BY BOWES, J.:                               FILED MAY 22, 2017

     Jason Virgile appeals from the judgment of sentence of eleven-and-

one-half to twenty-three months imprisonment followed by three years

probation that was imposed after a jury convicted him of endangering the

welfare of a child (“EWOC”). We reject his challenges to the sufficiency of

the evidence supporting his conviction and affirm.

     Appellant and his co-defendant Leeann Santiago were convicted of

endangering the welfare of Santiago’s son by a previous relationship, I.V. At

the time of the pertinent events, I.V. was living with his sister, Appellant,

and Santiago. Appellant’s two sons, who were one year old and four years

old, respectively, came twice a month to stay at the home.
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       The   Commonwealth’s    proof    was   as   follows.   Aracely   Thornton,

Santiago’s mother, testified that on May 2, 2011, she was babysitting the

then two-year-old I.V. at her home in Philadelphia. She noticed bruises on

his face between his forehead and his nose and on the front and back of his

ear.   Since the bruising “was in multiple areas,” Ms. Thornton became

alarmed. N.T. Trial, 5/26/15, at 81. She went to the police station to report

the injuries, and, when Santiago retrieved I.V., Ms. Thornton discussed the

injuries with her.   Santiago asked I.V. who inflicted the wounds, and he

responded, “Jason did it.” Id. at 105, 106. Ms. Thornton testified that I.V.

referred to Appellant as Jason and that there was no one else involved in

I.V.’s life, other than Appellant, whose name was Jason. Id. at 107.

       Santiago took I.V. to the hospital, where he was x-rayed, and called

his biological father, Valerie V., who went to the emergency room and

observed bruises on I.V.’s head and ear area. Prior to May 2, 2011, Valerie

had never observed those types of injuries on his son’s face. Valerie asked

I.V. how he was hurt, but never received a “clear response.” Id. at 199.

The next time that Valerie was called to the hospital for I.V. was October 25,

2011. At that time, I.V.’s injuries were much more extensive. Specifically,

the boy’s harm included: a laceration on the top of his head that required

staples, “bruises on the both sides of his head near his ears,” a “mark, like a

patch on his stomach, miscellaneous marks on his thighs, an open sore on




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his leg,” and also a rib fracture. N.T. Trial, 2/27/15, at 51.    I.V. again

refused to tell his father how he sustained the wounds.

     Due to the nature of I.V.’s harm, on October 25, 2011, hospital

personnel immediately suspected that I.V. was the victim of child abuse and

called police. Philadelphia Detective Manuel Gonzalez of the Special Victims

Child Abuse Unit responded.     At the hospital, Detective Gonzalez asked

Santiago what had happened, and she replied that I.V. hit a glass table with

his head.   On October 25, 2011, I.V. was removed from the care of

Appellant and Santiago and taken to Ms. Thornton’s home. On November 4,

2011, Detective Gonzalez interviewed Santiago about the matter.

     Santiago again represented that I.V. hit his head on a glass table while

he was playing with his sister and Appellant’s two sons, but Santiago was

unable to explain how I.V. incurred the remainder of his wounds.         She

informed Detective Gonzalez that I.V. never came home from his day care

center with injuries and stated that she took care of her two children when

they were at home. On November 4, 2011, Philadelphia Detective Edward

Enriquez interviewed Appellant, who indicated that he did not know how I.V.

was hurt.

     Melissa Hampton, who worked in Child Protective Services at the

Philadelphia Department of Human Services, was assigned to investigate the

matter. On October 26, 2011, she went to see I.V. at Ms. Thornton’s home.

Ms. Hampton interviewed the child and asked how he had sustained his

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wounds.      Initially, I.V. merely shrugged.   When asked about the head

laceration, “he said mom did it.” N.T. Trial, 5/26/15, at 53. Ms. Hampton

next interviewed Appellant and Santiago.        Santiago repeated that I.V.

sustained the head injury by hitting “his head on the table” in the dining

room while he was playing with the three other children in her home and

while Santiago was cooking in the kitchen.        Id. at 55.   Santiago also

represented that his facial bruising occurred when “she was pulling a T-shirt

down over his head.” Id. at 56. She indicated that she did not know how

the leg sore was caused but said that it must have been from a fall.

Santiago maintained that the mark on his stomach was a result of the boy

scratching himself with a toy.    At the time, Santiago appeared “somewhat

angry, defensive and somewhat nonchalant about the child’s injuries.” Id.

at 57.

         When Ms. Hampton discussed the matter with Appellant, he told her

that I.V. was injured while he was retrieving his children from their mother’s

home.      Appellant represented that, when he returned with his two boys,

Santiago “ran up to him to tell him or show him [I.V.’s] injury, and that he

told her to take the child to the hospital.” Id. at 59. Ms. Hampton noted

the discrepancy in Santiago’s and Appellant’s versions of events in that

Santiago said that Appellant’s two children were present when I.V. lacerated

his head while Appellant stated that the injury in question occurred while he

was retrieving his children from their mother’s home.

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      On October 28, 2011, there was a hearing to determine if I.V. and his

sister should remain in protective care, and Appellant told Ms. Hampton that

he and Santiago were the only adults with “access to [I.V.] in reference to

his injuries.” Id. at 65.

      Doctor Maria McColgan testified as an expert medical witness on behalf

of the Commonwealth.        She saw pictures taken by emergency room

physicians of the injuries that I.V. sustained on May 2, 2011.          He had

“bruises to the right side of his forehead, head, his ear, the bridge of his

nose, under his nose, . . . the side of his face, and his cheek.” Id. at 148.

Dr. McColgan testified to a reasonable degree of medical certainty that the

described wounds were “inflicted injuries and not consistent with accidental

injury.” Id. at 149.

      Dr. McColgan also reviewed the medical records from the October 25,

2011 incident and stated that I.V. had a laceration to his scalp, a healing rib

fracture, “linear scars on the back of his legs,” and bruising around the ears

on both sides of his face and the back of his head. There was no innocent

explanation for all these injuries, particularly the rib fracture. She explained

that bruising to the ear was not typical in either accidental or self-inflicted

injury and was indicative of child abuse.      Dr. McColgan concluded to a

reasonable degree of medical certainty that the multiple wounds suffered by

I.V. on October 25, 2011, was the result of physical abuse. Id. at 154.




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      Based on this evidence, Appellant and Santiago were convicted of

EWOC. This appeal followed imposition of the above-described judgment of

sentence.   Appellant presents one issue for our review: “Did the [jury]

commit error by convicting Appellant of endangering the welfare of a child

where the evidence at trial was insufficient to establish that Appellant

knowingly violated a duty of care to complainant?” Appellant’s brief at 2.

      Before we address this issue, we must resolve a procedural problem.

Appellant was ordered to file a Pa.R.A.P. 1925(b) statement but failed to do

so.   The trial court concluded that there were no issues preserved for

appellate review.   As we outlined in Commonwealth v. Thompson, 39

A.3d 335 (Pa.Super. 2012), in Commonwealth v. Lord, 719 A.2d 306 (Pa.

1998), our Supreme Court held that issues not raised in a court-ordered

Pa.R.A.P. 1925(b) statement are not preserved for review.              Accord

Commonwealth v. Castillo, 888 A.2d 775 (Pa. 2005) (affirming Lord and

holding that all issues are waived where a statement is not filed in a timely

manner).

      After Lord and Castillo, Pa.R.A.P. 1925(b) was amended, and it now

states that if an appellant “in a criminal case was ordered to file a Statement

and failed to do so, such that the appellate court is convinced that counsel

has been per se ineffective, the appellate court shall remand for the filing of

a Statement nunc pro tunc and for the preparation and filing of an opinion

by the judge.” Pa.R.A.P. 1925(c)(3). As this Court in Thompson observed,

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pursuant to this subsection, when a Pa.R.A.P. 1925(b) is not filed or is

untimely filed, counsel will be considered ineffective per se.            See

Commonwealth        v.   Burton,     973   A.2d    428    (Pa.Super.    2009);

Commonwealth v. Scott, 952 A.2d 1190 (Pa.Super. 2008).                 In such

scenarios, the case will be remanded for the filing of the statement nunc pro

tunc and the preparation of a trial court opinion in response to the

statement. Where the court does have the benefit of reviewing an untimely-

filed statement and writes an opinion, we do not remand.          Thompson,

supra.   In Thompson, the appellant’s Pa.R.A.P. 1925(b) statement was

untimely, and the trial court did not have it in time to author a response to

the issues raised. We therefore remanded for the trial court to discuss the

issues presented in the untimely statement.

      In the present case, Appellant did not file a statement, and the trial

court did not address the question of the sufficiency of the evidence

supporting the EWOC conviction. However, it is established that, “Whether

sufficient evidence exists to support the verdict is a question of law; our

standard of review is de novo and our scope of review is plenary.”

Commonwealth v. Sunealitis, 153 A.3d 414, 419 (Pa.Super. 2016)

(citation omitted). In light of our standard and scope of review, we do not

find it necessary to remand for preparation of a trial court opinion. We can

review the record evidence and decide, as a matter of law, if it was sufficient

to establish that Appellant committed the crime of EWOC.

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      In addressing the merits of Appellant’s sufficiency challenge, we

observe that:

      In reviewing the sufficiency of the evidence, we must determine
      whether the evidence admitted at trial, and all reasonable
      inferences drawn from that evidence, when viewed in the light
      most favorable to the Commonwealth as verdict winner, was
      sufficient to enable the fact finder to conclude that the
      Commonwealth established all of the elements of the offense
      beyond a reasonable doubt. The Commonwealth may sustain its
      burden by means of wholly circumstantial evidence. Further, the
      trier of fact is free to believe all, part, or none of the evidence.

Commonwealth v. Sunealitis, supra at 419 (citation omitted).

      The offense of EWOC is defined, in pertinent part, as follows: "(1) A

parent, guardian or other person supervising the welfare of a child

under 18 years of age . . . commits an offense if he knowingly endangers

the welfare of the child by violating a duty of care, protection or support.”

18 Pa.C.S. § 4304(a)(1) (emphases added).             In this case, Appellant

challenges that the Commonwealth established the intent element, i.e., that

he knowingly endangered Santiago’s child’s care. He also claims that he did

not have a duty of care toward I.V..

      We conclude that intent was established herein. On May 2, 2011, I.V.

sustained multiple bruising on his face and head, and Dr. McColgan testified

that that harm was intentionally inflicted rather than accidentally sustained.

The Commonwealth’s proof also was that I.V. told his grandmother that

Appellant inflicted those wounds. Our Supreme Court has noted that, while

the crime in question is a specific intent crime, the “EWOC statute is

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necessarily drawn broadly to capture conduct that endangers the welfare of

a child.” Commonwealth v. Lynn, 114 A.3d 796, 819 (Pa. 2015). EWOC

is committed when an adult takes an affirmative action that endangers a

child by injuring the victim. Commonwealth v. Passarelli, 789 A.2d 708,

716 (Pa.Super. 2001), aff'd per curiam, 825 A.2d 628 (Pa. 2003) (holding

that   evidence   was    sufficient   to    support   EWOC   conviction   where

Commonwealth presented expert witness who opined that injuries sustained

by child were intentionally inflicted and not the result of an accident). The

Commonwealth’s proof was that Appellant undertook an affirmative action

that endangered I.V.’s welfare by inflicting injuries to his face and the side of

his head on May 2, 2011.

       We note that Appellant attempts to deflect our attention from the May

2, 2011 incident by suggesting that this case solely involved the October 25,

2011 injuries.    We discount this effort as the Commonwealth’s evidence

clearly pertained to both May 2, 2011, and October 25, 2011.                 Ms.

Thornton’s testimony solely related to the May 2, 2011 harm, and she

testified that I.V. told her that Appellant had caused the bruising on his face.

The Commonwealth presented specific proof from Dr. McColgan relating to

the May 2, 2011 bruising, and that expert witness reported that the harm in

question was intentionally inflicted.      Thus, we conclude that the evidence

was sufficient to establish the intent element of EWOC.




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        We also reject Appellant’s position that he owed no duty of care to

I.V..   Section 4304 specifically states that anyone who is supervising a

child’s welfare is guilty of the offense.     In Lynn, our High Court observed

that a person supervising the welfare of a child is anyone who has a duty to

either care for, protect, or support a child and that definition includes

someone who has been entrusted with the care of a child or exercises a

supervisory role in connection with the child. Appellant was an adult in the

home occupied by I.V. and was involved in his supervision when I.V. was in

that home.     Thus, Appellant owed a duty of care to the child within the

meaning of § 4304 where he inflicted the multiple bruises to I.V.’s head and

face on May 2, 2011.

        Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/22/2017




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