J-A23008-16

                                  2016 PA Super 236



COMMONWEALTH OF PENNSYLVANIA                           IN THE SUPERIOR COURT OF
                                                             PENNSYLVANIA
                            Appellee

                       v.

A.R.C.

                            Appellant                     No. 1296 WDA 2015


             Appeal from the Judgment of Sentence April 1, 2015
                In the Court of Common Pleas of Greene County
             Criminal Division at No(s): CP-30-CR-00000032-2014


BEFORE: LAZARUS, J., STABILE, J., and STRASSBURGER, J.*

OPINION BY LAZARUS, J.:                                 FILED NOVEMBER 1, 2016

        A.R.C. appeals from her judgment of sentence,1 entered in the Court

of Common Pleas of Greene County, after being convicted by a jury of

endangering      the   welfare    of    a   child   (EWOC)2   (M-1)   and   recklessly

endangering another person (REAP)3 (M-2), as a result of injuries sustained

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  Although A.R.C. appealed from the order denying, by operation of law, her
post-sentence motions, the appeal properly lies from her underlying
judgment of sentence. Commonwealth v. Chamberlain, 658 A.2d 395
(Pa. Super. 1995) (order denying post-sentence motion acts to finalize
judgment of sentence; thus, appeal is taken from judgment of sentence, not
order denying post-sentence motion).
2
    18 Pa.C.S. § 4304(a)(1).
3
    18 Pa.C.S. § 2705.
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by her two-month-old daughter, M.S. Because the Commonwealth failed to

prove, beyond a reasonable doubt, that A.R.C. engaged in reckless conduct

that placed M.S. in danger of serious bodily injury or that she violated her

parental duty of care to M.S., we vacate the judgment of sentence and

discharge A.R.C..

       The victim, M.S., is the infant daughter of A.R.C and her then-

boyfriend, B.S. A.R.C. and B.S. began dating when A.R.C. was 14 years old

and B.S. was 19 years of age. Prior to M.S.’s birth, B.S. moved into A.R.C.’s

family trailer where she lived with her sister and mother.    M.S. was born on

May 22, 2013, via C-section. Over the first two months of M.S.’s life, A.R.C.

took the infant to all of her regularly-scheduled pediatric well visits. At each

of her doctor visits, M.S. was given a full-body examination which consisted

of, in part, checking the child’s musculoskeletal system.        Doctors never

noted any positive findings or any serious medical issues.4

       A.R.C. returned to work as a hotel housekeeper approximately one

month after M.S. was born.          A.R.C. worked five days a week, which often

included Saturdays. A.R.C. testified that her typical work hours were from 8

to 4. When A.R.C. returned to work, B.S. became M.S.’s primary caretaker.

On the evening of July 29, 2013, M.S. awoke; after changing her diaper,

B.S. left the infant on the bed while he went to the bathroom. When B.S.

____________________________________________


4
 M.S. was diagnosed with thrush and impetigo in her first month of life; she
was successfully treated with antibiotics and a topical cream.



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returned to the bedroom he saw the couple’s dog on the bed near the baby.

In an attempt to push the dog off the bed, B.S. fell on M.S. Due to the force

of B.S. on her body, M.S. cried, which awoke A.R.C.. “Half asleep,”5 A.R.C.

suggested B.S. give the baby a bottle and then went back to sleep.

         When A.R.C. arrived home from work the next evening, B.S. was

applying ice to the baby’s swollen and red leg. As soon as A.R.C.’s mother

arrived home from work, the couple took M.S. to the hospital, where she

was ultimately diagnosed with a newly fractured femur.       Full body x-rays

determined that M.S. had 17 other fractures, including broken ribs and

limbs, which were in some stage of the healing process. Doctors determined

that those other injuries occurred sometime within the last three weeks of

the current hospital visit.

         B.S. initially told hospital personnel and Child and Youth Services’

employees that one of their dogs had jumped on the bed and injured M.S.

Eventually, B.S. admitted to falling on the baby the prior evening, as well as

having dropped the baby out of her infant car seat when she was just weeks

old.     B.S. was charged with REAP, EWOC, simple assault and aggravated

assault.    In a separate proceeding, B.S. pled guilty to REAP, EWOC and

simple assault and was serving a prison sentence at the time of A.R.C.’s

trial.


____________________________________________


5
    See N.T. Jury Trial, 2/14/15, at 263.



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       The Commonwealth ultimately charged A.R.C. with REAP, EWOC, and

simple assault.      At the close of the Commonwealth’s case, the defense

moved for a directed verdict claiming that there was insufficient evidence to

put the case before the jury. Finding that there “is more than a scintilla of

evidence against [A.R.C.] as a matter of law,” the court denied the defense

motion.      N.T. Jury Trial, 2/14/15, at 233. The jury eventually rendered a

guilty verdict for REAP and EWOC. A.R.C. was sentenced on April 2, 2015,

and ordered to serve a flat sentence of 60 days of incarceration, followed by

a consecutive term of 36 months of County Intermediate Punishment which

includes 30 days of house arrest to an approved address, with GPS

monitoring, followed by 33 months of regular supervision, to include

attending monthly re-entry court proceedings for up to six months.           In

addition, A.R.C. was ordered to serve 300 hours of community service.

       On April 10, 2015, A.R.C. filed timely post-sentence motions6 that

were denied by operation of law on August 17, 2015.           See Pa.R.Crim.P.

720(B)(3)(a).      This timely appeal follows, in which A.R.C. presents the

following issues for our consideration:

       (1)     Whether the evidence at trial was insufficient to establish
               beyond a reasonable doubt the “specific intent” and “actus
____________________________________________


6
  On May 8, 2015, A.R.C. filed a “Motion for Continued Stay of Sentence,”
which the court granted on May 11, 2015. In its order, the trial court stayed
A.R.C.’s sentence “pending the disposition of post-sentence motions and
through all avenues of direct appeal [in the] Superior Court.” Order,
5/11/15.



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           reus” elements of the crimes charged when the undisputed
           evidence established that the Defendant did not cause or
           know about the injury to the child, that she proactively
           took the child to the hospital repeatedly, that doctors did
           not discover apparently existing injuries during repeated
           examination, and that an expert testified there was
           nothing more the Defendant could have done to discover
           that the child was injured.

     (2)   Whether the verdict was against the weight of the
           evidence when, to the exclusion of all of the evidence of
           the proactive efforts of the Defendant, the testimony of an
           expert that over eight of his colleagues did not discover
           the injuries to the child and the Defendant could not have
           done anything more to discover them, and the testimony
           of the perpetrator of the injuries that he lied to the
           Defendant about injuring the child, excessive and undue
           weight was placed on the mere existence of the injuries
           and that the Defendant was the child’s mother.

     (3)   Whether the lower court erred in failing to grant the
           Defendant’s Petition to Strike and thereby relied on
           unverified facts, facts not of record, and information
           inapposite to the testimony at trial in denying the
           Defendant’s Post-Verdict Motions for Judgment of Acquittal
           and for New Trial?

     (4)   Whether the lower court abused its discretion in failing to
           modify the Defendant’s sentence because (1) the court
           failed to rule on the Defendant’s Petition to Strike and
           admitted into the record and relied on unverified facts,
           facts not of record, and information entirely inapposite to
           the testimony at trial in sentencing the Defendant, and (2)
           it admitted an unverified, hearsay letter that was authored
           by a biased individual who was not present for cross-
           examination, did not qualify as a victim impact statement,
           and was replete with inaccurate statements of “facts,”
           opinions and even legal and medical conclusions.

     (5)   Whether the lower court abused its discretion by issuing an
           excessive and unreasonable sentence that was inconsistent
           with the Sentencing Code and contrary to fundamental
           norms of sentencing because it (1) considered only the
           seriousness of the crimes charged to the exclusion of
           statutory guidelines, recommendations of the presentence


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           investigation, mitigating factors, and the specific facts of
           the case, (2) misapplied the law in failing to properly
           identify mitigating factors and relied on inaccurate
           information and unsubstantiated hearsay, and (3) imposed
           conditions which were outside the power and control of the
           Defendant.

     In Commonwealth v. Smith, 956 A.2d 1029 (Pa. Super. 2008) (en

banc), our Court set forth the relevant standard of review for a sufficiency

claim:

     The standard we apply when 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 factfinder to find every element
     of the crime beyond a reasonable doubt. In applying the above
     test, we may not weigh the evidence and substitute our
     judgment for the fact-finder. In addition, we note that the facts
     and circumstances established by the Commonwealth need not
     preclude every possibility of innocence. Any doubts regarding a
     defendant's guilt may be resolved by the factfinder 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
     trier 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. Furthermore, when reviewing a sufficiency
     claim, our Court is required to give the prosecution the benefit of
     all reasonable inferences to be drawn from the evidence.

     However, the inferences must flow from facts and circumstances
     proven in the record, and must be of such volume and quality as
     to overcome the presumption of innocence and satisfy the jury
     of an accused’s guilt beyond a reasonable doubt. The trier of fact
     cannot base a conviction on conjecture and speculation and a
     verdict which is premised on suspicion will fail even under the
     limited scrutiny of appellate review.



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Id. at 1035-36 (citation and internal quotation omitted).

      The crime of Endangering the Welfare of Child is defined, in relevant

part, as:

            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 [s]he
            knowingly endangers the welfare of the child by violating a
            duty of care, protection or support.

18 Pa.C.S. § 4304(a)(1) (emphasis added). The crime of endangering the

welfare of a child is a specific intent offense.      The intent element under

section 4304 is a knowing violation of a duty of care. See Commonwealth

v.   Cardwell,      515   A.2d   311,   313   (Pa.   Super.   1986);   see   also

Commonwealth v. Smith, (Pa. Super. 2008) (three-prong standard to

prove knowing element of intent of EWOC: (1) accused must be aware of

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

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

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

lame or meager that actions cannot reasonably be expected to protect

child’s welfare).

      In Cardwell, an EWOC case involving a mother’s failure to protect her

child from another person’s severe abuse, our Court looked to section 302 of

the Crimes Code to conclude that violating a duty of care under the EWOC

statute includes omissions to act, as well as acts. Id. at 314. The Court

stated, “Where there is a duty of care and where there is sufficient evidence

that the parent knows that the action is required to fulfill his or her parental

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duty, than a failure to act may be a knowing failure in the parent’s duty of

care.” Id. See Commonwealth v. Barnhart, 497 A.2d 616, 620-21 (Pa.

Super. 1985) (“A parent is charged with the duty of care and control,

subsistence and education necessary for the child’s physical, mental and

emotional health and morals.”).

       Here, the trial judge justified the jury’s EWOC and REAP verdicts as

follows:

       The Jury did what a Jury is supposed to do. Twelve members of
       our community considered all of the evidence against the
       Defendant, and they considered all of the evidence for the
       Defendant.

       The Jury found the Defendant guilty at Count 1 of Endangering
       the Welfare of Baby [M.], and at Count 2, Recklessly
       Endangering her well-being.

       The Commonwealth never charged the Defendant with actually
       causing the several injuries to Baby [M.]. They charged the
       Defendant with endangering her baby by neglecting her,
       and also being reckless with her.

       No one has to date, including the Defendant, and throughout all
       of the Pre-Trial and tribulations of the dependency or the
       criminal prosecution in this matter, ever disputed the obvious:
       That if an x-ray shows a trained doctor, that a two[-]month[-]old
       baby has 18 broken bones, and there is no accident to explain
       the injuries, that the injuries do quietly and simply, but
       powerfully speak for themselves.

N.T. Sentencing Order, 4/2/15, at 2.7

____________________________________________


7
  We note, with disapproval, that the trial judge chose not to write a
Pa.R.A.P. 1925(a) opinion. Instead, he stated that he “stands by [the
court’s] previously filed opinion and no further additions shall be filed at this
time.” Order, 12/7/15. We find this troubling given that not only did the
(Footnote Continued Next Page)


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      Instantly, there is nothing in the record to prove, beyond a reasonable

doubt, that A.R.C. either recklessly endangered M.S. or acted in such a way

that her neglect endangered M.S.’s welfare. To uphold her duty of parental

care, A.R.C. took M.S. to every scheduled well-check and voluntarily took

M.S. to the doctor when she seemed excessively fussy at 52-days-old. The

doctors told A.R.C. that M.S. was likely suffering from colic, a normal

condition in newborn infants.         A.R.C. complied with the doctors’ treatment

for M.S.’s thrush and impetigo by administering her antibiotics and topical

cream. None of M.S.’s healthcare providers either suspected or discovered

any of the baby’s injuries prior to her July 30th hospital visit where she was

first diagnosed with a broken femur and 17 pre-existing fractures.

      Doctors testified that M.S. was a healthy, thriving baby girl at all of her

visits. Moreover, the evidence showed that A.R.C. had no idea that M.S. had

sustained any injuries prior to her July 30th hospital visit.     N.T. Jury Trial,

1/14/15, at 17 (arresting officer testified that there was no evidence,

testimony or information discovered during investigation to show that, prior

to July 29th, A.R.C. was aware that M.S. had suffered any injury). In fact,

A.R.C. only became aware that M.S.’s leg was swollen and red when she

arrived home from work on the evening of the 30th and saw B.S. applying ice


                       _______________________
(Footnote Continued)

court ask A.R.C. to file a Pa.R.A.P. 1925(b) concise statement of reasons for
appeal, but, additionally, the trial court did not issue any opinion on A.R.C.’s
post-trial motions that were denied by operation of law.



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to the baby’s limb. Id. at 276 (A.R.C. was not “fully awake” when the injury

to M.S.’s leg happened); id. at 263 (“I was shocked, confused, upset in a

way because I did not understand why he was [applying ice to the baby’s leg

and did not know] what happened.”). In fact, A.R.C. testified that when she

left for work on the morning of the 30th, M.S. was sleeping in her bassinette.

N.T. Jury Trial, 1/14/15, at 262, 277.

         Additionally, both B.S. and A.R.C.’s mother testified that they never

saw A.R.C. mistreat the baby, nor did A.R.C. know that the baby had fallen

out of the car seat when she was only a few weeks old.        Id. at 94, 259.

A.R.C. testified that she had never observed B.S. lose his temper with M.S.,

injure M.S. or place her in any risk of danger.     Id. at 275-76.   She also

testified that she was not aware of anyone else who ever injured or placed

M.S. in risk of danger. Id. at 276. Finally, A.R.C. testified that she never

left M.S. in the care of someone incompetent to care for her daughter. Id.

         Jeffrey Lancaster, M.D., the attending physician on duty when M.S.

was admitted to the hospital for her broken femur, testified:     “Outside of

normal maternal instinct, which [A.R.C.] appears to have exhibited when she

says my baby is irritable, I don’t think there is really much else with these

injures that she could have done.” Id. at 161. Moreover, A.R.C.’s mother,

who lived in the same small trailer with the couple and M.S., testified that

the baby was generally pleasant, only waking to feed a couple times at

night.     Even on the evening of the 29th when M.S.’s leg was fractured,

A.R.C.’s mother and A.R.C. testified that the baby’s cry was no different than

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any other night when she would wake to feed.        Cf. Commonwealth v.

Cottam, 616 A.2d 988 (Pa. Super. 1992) (where defendants’-parents’ son

died of starvation and malnutrition, appellants convicted of EWOC for

violating duty of care where father told officers he had not made right

decision, had let situation go too far, should have gone for help, mother did

not want children to spend money on food, parents told children if they went

to neighbors to beg for food they would be taken away from them, and they

were aware that son’s arm had gone numb a few weeks prior to death and

did nothing about it).

      Under such circumstances, we find that the Commonwealth did not

prove beyond a reasonable doubt that A.R.C. was aware that M.S. was

placed under circumstances that could threaten her physical welfare or that

she failed to act to protect M.S.’s welfare.    Smith, supra.     Therefore,

A.R.C.’s EWOC conviction is infirm and must be vacated.

      The crime of REAP is defined as:

      A person commits a misdemeanor of the second degree if [s]he
      recklessly engages in conduct which places or may place another
      person in danger of death or serious bodily injury.

18 Pa.C.S. § 2705.       The mens rea required for the crime of REAP,

“recklessly,” is defined as a conscious disregard of a known risk of death or

great bodily harm to another person. Commonwealth v. Chapman, 763

A.2d 895 (Pa. Super. 2000).     Acts of commission or omission by parents

towards their children may create a substantial risk of death or great bodily

injury. Cottam, 616 A.2d at 993.


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      Similar to the dearth of evidence to prove EWOC, the Commonwealth

also failed to produce sufficient evidence to show that A.R.C. recklessly

endangered M.S. A.R.C. neither knew nor should have known that M.S. had

suffered 18 fractures prior to being told the results of the hospital’s July 30th

x-ray examination. A.R.C. took M.S. to all of her well checks throughout the

relevant time period, brought M.S. to the doctor’s office when she was

concerned that she was overly fussy, and performed the usual parental

duties as the mother of a newborn (baths, feedings, diaper changes,

administering prescribed medications, etc).        Plainly stated, there is no

evidence in the record to show that A.R.C. consciously disregarded a known

risk of great bodily harm to M.S.      Cf. Cottam, supra (where defendant-

parents were under mistaken belief that only prayer would aid their dying,

malnourished son, mens rea element of REAP still proven; appellants knew

son was near death, and did not seek aid).        Doctors testified that all 18

injuries were sustained after A.R.C. went back to work, post-birth, and when

M.S. was primarily cared for by B.S.. N.T. Jury Trial, 1/14/15, at 221, 245.

      The trial court correctly noted that this is an unusual case in that no

one has been able to account for how M.S. sustained 17 of her 18

undisputed, non-accidental fractures. However, just because those injuries

were not traceable to a specific person or event, criminal liability is not

automatically imputed to a parent.     The Commonwealth is still required to

prove, beyond a reasonable doubt, the elements of REAP and EWOC. The

Commonwealth failed to sustain its burden of proof in the instant case.

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       Judgment of sentence vacated.           Defendant discharged.   Jurisdiction

relinquished.8

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/1/2016




____________________________________________


8
 Because we vacate and remand for discharge on sufficiency grounds, we
need not address A.R.C.’s remaining issues on appeal.



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