J-A26040-19

                                   2020 PA Super 110

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    COREY DENT YACHIMOWSKI                     :
                                               :
                       Appellant               :   No. 690 WDA 2019

        Appeal from the Judgment of Sentence Entered March 27, 2019
      In the Court of Common Pleas of Clarion County Criminal Division at
                        No(s): CP-16-CR-0000424-2018


BEFORE: SHOGAN, J., LAZARUS, J., and OLSON, J.

OPINION BY OLSON, J.:                                     FILED MAY 06, 2020

        Appellant, Corey Dent Yachimowski, appeals from the judgment of

sentence entered on March 27, 2019, as made final by the denial of Appellant’s

post-sentence motion on May 1, 2019. We vacate Appellant’s judgment of

sentence and remand for a new trial.

        The Commonwealth charged Appellant and Samantha Marie Woodside

(hereinafter, collectively, “the Defendants”) with endangering the welfare of

their five-year-old daughter, F.Y.1 During the Defendants’ consolidated jury

trial, the following evidence was presented.

        The Commonwealth first presented the testimony of Patricia Crawford.

Ms. Crawford testified that she is a case manager for Family Psychological

Associates and that, in May 2018, both F.Y. and Ms. Woodside were her

clients. N.T. Trial, 2/11/19, at 20-21 and 31. Ms. Crawford testified that, at
____________________________________________


1   18 Pa.C.S.A. § 4304(a)(1).
J-A26040-19



approximately 10:30 a.m. or 10:45 a.m. on the morning of May 17, 2018, she

knocked on the front door of a home shared by the Defendants. Id. at 20-21.

She testified that, after Appellant opened the door and let her in, she watched

Appellant walk back to F.Y.’s bedroom with a portable drill in his hand. Id. at

21-22. She observed two baby gates – stacked one on top of the other –

blocking F.Y.’s doorway and she watched as Appellant used the drill to unscrew

the top baby gate from the two sides of the doorframe to allow F.Y. to leave

her room. Id. at 22, 26-27, and 36. The baby gates were made of plastic,

with a “plastic lattice-work type of stuff in the middle,” which could be seen

through. Id. at 36-37.

         Ms. Crawford testified that, when F.Y. walked up to her, F.Y. was

chewing on either tissue paper or a paper towel.       Id. at 22.   When Ms.

Crawford asked F.Y. why she was chewing on the object, F.Y. “said that she

was hungry.” Id. However, Ms. Crawford testified that, as far as she could

tell, F.Y. was not underfed and was not lacking in proper hygiene.      Id. at

33-34. Further, Ms. Crawford testified that the home was not in disarray. Id.

at 34.

         The Commonwealth next called Clarion County Children and Youth

Services (“CYS”) caseworker Judy Rawson-Myers as a witness. Id. at 40. Ms.

Rawson-Myers testified that she received a report that F.Y. was being confined

in her room by the use of secured baby gates. Id. at 41 and 46. She testified

that, in response to the report, on May 17, 2018, she and two Pennsylvania




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State Troopers arrived at the Defendants’ residence and Ms. Rawson-Myers

spoke with the Defendants. Id. Ms. Rawson-Myers testified:

           I explained to [the Defendants] why I was there. . . . They
           kept looking at each other. They really weren’t talking. I
           asked to see [F.Y.’s] bedroom. I walked back [through] the
           hall. There was still a baby gate in the hall and about . . .
           four-and-a-half feet up the wall along the wooden door
           frame, there was still a screw that was screwed into the right
           side of the door frame. . . .

           Inside of [F.Y.’s] bedroom . . . , there was a potty chair sitting
           on the floor with a box of wipes and a bed.

Id. at 42-43.

         Ms. Rawson-Myers testified that she asked the Defendants why they

were using the baby gates to block F.Y.’s doorway. Id. at 44. The Defendants

“both said that they were doing that to keep [F.Y.] in the room, so [F.Y.] didn’t

get into things whenever they hadn’t gotten out of bed in the morning.” Id.

at 44.

         Following Ms. Rawson-Myers’ testimony, the Commonwealth rested and

Ms. Woodside testified on her own behalf. Id. at 58. Ms. Woodside testified

that she and Appellant installed the baby gates in the doorway to F.Y.’s room

because F.Y. “likes to get up at two or three in the morning and play” while

she and Appellant were asleep.         Id. at 61.    She testified that F.Y.’s play

involved anything from going “to the living room [to] play with her toys” to

“climb[ing] on [a] chair to get the stuff off the top of the fridge” to playing

with the family’s “three cats and two dogs.” Id. at 61 and 63. Ms. Woodside




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testified that, to prevent F.Y.’s nightly wanderings while she and Appellant

were asleep, they “put baby gates up.” Id. at 67.

      As Ms. Woodside testified, they initially started with one gate, which

they screwed into the doorframe.       Id.   However, F.Y. “found a way to

constantly climb over the gate” and the Defendants, therefore, “put a second

[gate] on top.” Id. at 67 and 70. Ms. Woodside testified that the upper gate

was never screwed into the doorframe. Id. at 70.

      Ms. Woodside testified that, in May 2018, she was recovering from a

hysterectomy and had been told to “take it easy” and to get lots of bedrest.

Id. at 60. She testified that, when Ms. Crawford arrived at their house on the

morning of May 17, 2018, Appellant woke her up and went to get F.Y. Ms.

Woodside testified that she did not see Appellant use a drill to retrieve F.Y.

from the room, but she acknowledged that Appellant “could have” done so.

Id. at 76 and 101.    According to Ms. Woodside, Ms. Crawford stayed for

approximately 15 minutes and then left. Id. at 86-87.

      According to Ms. Woodside, later in the day, Ms. Rawson-Myers and two

Pennsylvania State Troopers arrived at their house. Id. at 87. During the

visit, Ms. Rawson-Myers spoke to the Defendants in a “raised” voice and told

them that they could not have the gates blocking F.Y.’s doorway, as it “was a

safety issue in case of fire.” Id. at 89. Ms. Woodside testified that she and

Appellant “didn’t think of that when [they] put the gates up . . . [w]e were

only doing it for [F.Y.’s] safety.” Id. at 89. However, after being told of the

dangers, Ms. Woodside testified that Appellant took the gates down and put

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J-A26040-19



them in their shed. Id. at 91. She testified that they have never used the

gates again. Id. Further, Ms. Woodside reiterated that they employed the

baby gates for one reason: F.Y.’s safety. Id. at 112-113.

      Following Ms. Woodside’s testimony, the trial court permitted the

Commonwealth to reopen its case to present additional evidence. Of note,

Pennsylvania State Trooper John Dubovi testified that, during the lunch

recess, he obtained and served a warrant to search the Defendants’ shed.

Trooper Dubovi testified that he found three baby gates in the shed and that

he observed “at least two drill holes [in] each of the gates,” which were not

made by the manufacturer. Id. at 136.

      At the close of the Defendants’ case, the Defendants’ attorney requested

that the trial court provide the jury with a parental justification instruction,

pursuant to Pennsylvania Suggested Standard Criminal Jury Instruction

9.509(a). See N.T. Trial, 2/11/19, at 123. Instruction 9.509(a) is based upon

18 Pa.C.S.A. § 509(1), which reads:

        The use of force upon or toward the person of another is
        justifiable if:

        (1) The actor is the parent or guardian or other person
        similarly responsible for the general care and supervision of
        a minor or a person acting at the request of such parent,
        guardian or other responsible person and:

            (i) the force is used for the purpose of safeguarding or
            promoting the welfare of the minor, including the
            preventing or punishment of his misconduct; and

            (ii) the force used is not designed to cause or known to
            create a substantial risk of causing death, serious bodily

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J-A26040-19


            injury, disfigurement, extreme pain or mental distress or
            gross degradation.

18 Pa.C.S.A. § 509(1).

      The trial court denied the requested instruction, reasoning:

        Well, [Section 509(1)] reads, “the use of force upon or
        toward the person of another is justifiable if. . . .”

        So I think that the issue is whether this putting up the gate .
        . . was the use of force upon or toward the child.

        Another consideration is with regard to the standard charge
        9.509(a). The subcommittee note begins [by] saying Section
        [509] of the Crimes Code sets forth special rules that apply
        when the defendant is charged with using force upon a
        person for whose care the defendant has special
        responsibility. In this case, neither defendant is charged with
        using force. It is not an element of endangering the welfare.
        And I am interpreting the statute with help from the
        subcommittee. Primarily, . . . the defendants did not use
        force upon or toward the child, so I am going to deny the
        request for the charge at 9.509(a).

N.T. Trial, 2/11/19, at 126.

      The jury found both Defendants guilty of endangering the welfare of a

child. Id. at 126 and 183. On March 27, 2019, the trial court sentenced

Appellant to serve a term of nine months to two-years-less-one-day in the

Clarion County Jail and Ms. Woodside to serve a term of three years of

probation for their convictions. N.T. Sentencing, 3/27/19, at 10-11. Following

the denial of the Defendants’ post-sentence motion, the Defendants filed

timely notices of appeal. Appellant raises one claim on appeal:

        Did the trial court err in failing to provide a justification
        defense instruction where [the Defendants] were individuals
        with special responsibility to the victim and [the Defendants’]


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J-A26040-19


        use of force, in the form of confinement, was used for
        purposes of the victim’s protection?

Appellant’s Brief at 4.

      Appellant claims that the trial court erred when it refused to instruct the

jury on the affirmative defense of parental justification. Id. at 9; see also

Commonwealth v. Capitolo, 498 A.2d 806, 809 (Pa. 1985) (holding that

justification defenses are affirmative defenses). As our Supreme Court has

explained:

        When a court instructs the jury, the objective is to explain to
        the jury how it should approach its task and the factors it
        should consider in reaching its verdict. Instructions on
        defenses or theories of prosecution are warranted when there
        is evidence to support such instructions. In examining jury
        instructions, our [standard] of review is to determine whether
        the trial court committed a clear abuse of discretion or an
        error of law controlling the outcome of the case. A charge
        will be found adequate unless the issues are not made clear,
        the jury was misled by the instructions, or there was an
        omission from the charge amounting to a fundamental error.

Commonwealth v. Chambers, 980 A.2d 35, 49-50 (Pa. 2009) (quotations

and citations omitted); see also Commonwealth v. Borgella, 611 A.2d 699,

700 (Pa. 1992) (“[a] defendant is entitled to an instruction on any recognized

defense which has been requested, which has been made an issue in the case,

and for which there exists evidence sufficient for a reasonable jury to find in

his or her favor”) (quotations and citations omitted).

      Appellant’s claim requires that this Court interpret 18 Pa.C.S.A. § 509.

In matters of statutory interpretation, “our standard of review is de novo and

our scope of review is plenary.”     Commonwealth v. Parsons, 166 A.3d



                                      -7-
J-A26040-19



1242, 1246 (Pa. Super. 2017).        We have explained that, in interpreting a

statute:

           We are constrained by the rules of statutory interpretation,
           particularly as found in the Statutory Construction Act. 1
           Pa.C.S.A. §§ 1501–1991. The goal in interpreting any statute
           is to ascertain and effectuate the intention of the General
           Assembly. Our Supreme Court has stated that the plain
           language of a statute is in general the best indication of the
           legislative intent that gave rise to the statute. When the
           language is clear, explicit, and free from any ambiguity, we
           discern intent from the language alone, and not from the
           arguments based on legislative history or “spirit” of the
           statute. We must construe words and phrases in the statute
           according to their common and approved usage. We also
           must construe a statute in such a way as to give effect to all
           its provisions, if possible, thereby avoiding the need to label
           any provision as mere surplusage.

C.B. v. J.B., 65 A.3d 946, 951 (Pa. Super. 2013) (citations, corrections, and

some quotations omitted).

      The Defendants requested that the trial court instruct the jury on the

parental justification defense, pursuant to Pennsylvania Suggested Standard

Criminal Jury Instruction 9.509(a). See N.T. Trial, 2/11/19, at 123. As noted

above, Instruction 9.509(a) is based upon 18 Pa.C.S.A. § 509(1), which

reads:

           The use of force upon or toward the person of another is
           justifiable if:

           (1) The actor is the parent or guardian or other person
           similarly responsible for the general care and supervision of
           a minor or a person acting at the request of such parent,
           guardian or other responsible person and:




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J-A26040-19


              (i) the force is used for the purpose of safeguarding or
              promoting the welfare of the minor, including the
              preventing or punishment of his misconduct; and

              (ii) the force used is not designed to cause or known to
              create a substantial risk of causing death, serious bodily
              injury, disfigurement, extreme pain or mental distress or
              gross degradation.

18 Pa.C.S.A. § 509(1).2

       The trial court denied the requested jury instruction, reasoning that the

statutory defense of parental justification only applies to the use of “force.”

N.T. Trial, 2/11/19, at 126.        According to the trial court, the Defendants’

actions constituted “confinement” and confinement was not “force.” As such,

the trial court held, the statutory defense did not apply to the Defendants’

conduct and the Defendants were not entitled to the requested instruction. 3

Id.    Appellant now claims that the denial of the requested instruction

constituted prejudicial error. We agree with Appellant.

       The parental justification defense found in Section 509(1) attempts to

balance competing interests. Commonwealth v. Ogin, 540 A.2d 549, 554

(Pa. Super. 1988). On the one hand, Section 509(1) furthers the “primary

role of parents in preparing children to assume the obligations and

____________________________________________


218 Pa.C.S.A. § 509(1) is based upon Section 3.08(1) of the Model Penal
Code.

3 The trial court also denied the requested instruction because the crime of
endangering the welfare of a child does not have an explicit statutory element
that requires force. See N.T. Trial, 2/11/19, at 126; see also Trial Court
Opinion, 4/30/19, at 6. However, this reasoning immediately fails, as Section
509(1) has no such requirement.


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J-A26040-19



responsibilities of adults” and society’s “need to ensure that the state through

its criminal justice system does not unduly interfere with the private realm of

family life.”   Id.   However, balanced against those interests is the state’s

“powerful interest in preventing and deterring the battering of children.” Id.

Where applicable, the parental justification defense “defines conduct [that is]

otherwise criminal, [but] which under the circumstances is socially acceptable

and which deserves neither criminal liability nor even censure.”     Wayne R.

LaFave, 2 SUBSTANTIVE CRIMINAL LAW § 9.1(a)(3) (3d ed.) (quotations and

citations omitted).

      The parental justification defense has the following statutory elements:

1) the actor uses “force upon or toward the person of another;” 2) the actor

“is the parent or guardian or other person similarly responsible for the general

care and supervision of a minor or a person acting at the request of such

parent, guardian or other responsible person;” 3) “the force is used for the

purpose of safeguarding or promoting the welfare of the minor, including the

preventing or punishment of his misconduct;” and, 4) “the force used is not

designed to cause or known to create a substantial risk of causing death,

serious bodily injury, disfigurement, extreme pain or mental distress or gross

degradation.” 18 Pa.C.S.A. § 509(1).

      It is undisputed that the Defendants are the parents of F.Y. and that

F.Y. is a minor. Further, there is sufficient evidence for a reasonable jury to

find that the Defendants acted “for the purpose of safeguarding or promoting

the welfare of the minor” and that their actions were “not designed to cause

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J-A26040-19



or known to create a substantial risk of causing death, serious bodily injury,

disfigurement, extreme pain or mental distress or gross degradation.” To be

sure, Ms. Woodside testified that she and Appellant utilized the baby gates for

F.Y.’s safety, as F.Y. continuously wandered around at night and they were

afraid F.Y. would injure herself during these nighttime excursions. Second,

Ms. Woodside testified that she and Appellant did not think of the dangers to

which F.Y. was exposed in the event of fire. Finally, the Defendants’ actions

were not so far-afield that it must be said, as a matter of law, that their actions

were “designed to cause or known to create a substantial risk of causing death,

serious bodily injury, disfigurement, extreme pain or mental distress or gross

degradation.”4      Therefore, the only question in this case is whether the

Defendants’ actions constituted the “use of force upon or toward” F.Y. We

conclude that the Defendants satisfied this element and that they were, thus,

entitled to a parental justification defense jury instruction.

       The Crimes Code does not specifically define the term “force.” See 18

Pa.C.S.A. § 501. Nevertheless, as our Supreme Court has noted:

         Webster's New Collegiate Dictionary defines “force” not only
         as “strength or energy exerted or brought to bear; to do
         violence,” but also to “compel by physical, moral or
         intellectual means,” and “violence, compulsion or constraint
         exerted upon or against a person or thing.” Synonyms
         offered are “compel, coerce, constrain, oblige,” which
         synonyms have the: “shared meaning element: to make
____________________________________________


4 In our view, whether the Defendants’ actions were “designed to cause or
known to create a substantial risk of causing death, serious bodily injury,
disfigurement, extreme pain or mental distress or gross degradation” are
questions properly reserved for resolution by the jury.

                                          - 11 -
J-A26040-19


        someone or something yield. Force, the general term,
        implies an overcoming of resistance by the exertion of
        strength, weight, power, stress, or duress.”

Commonwealth v. Rhodes, 510 A.2d 1217, 1225 (Pa. 1986).

      The Defendants’ actions, in and of themselves, did not constitute the

“use of force upon” F.Y.    By simply having F.Y. go to her room and then

installing the baby gates, the Defendants did not use or apply force directly

upon F.Y.’s person. Nevertheless, we conclude that, under the plain language

of the statute, the Defendants’ actions could constitute the “use of force . . .

toward” F.Y.    Certainly, the evidence demonstrates that the Defendants

either screwed-in or otherwise installed the baby gates in F.Y.’s doorway in

order to create a physical barricade that prevented F.Y. from leaving her room.

Although, left alone, the baby gates constituted a passive force that physically

prevented F.Y. from leaving her room, the baby gates were, nevertheless, a

force that was directed towards F.Y. – the secured gates acted as a

physical barrier that prevented F.Y. from leaving her room. Further, although

there is no evidence that F.Y. attempted to shake, push through, or otherwise

interact with the baby gates to leave the room, we note that, if F.Y. did

attempt to break through the barrier, the Defendants’ actions would constitute

the use of force upon F.Y. – just as much as if the Defendants were to

physically place themselves behind F.Y.’s doorway to prevent her from exiting

her bedroom. Therefore, we conclude that, under the plain language of the

statute, a reasonable jury could find that the Defendants’ actions constituted




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J-A26040-19



the use of force toward F.Y. Respectfully, the trial court’s contrary conclusion

effectively rendered the words “or toward” in § 509(1) surplusage.

       Our conclusion is further bolstered by the legislature’s use of the word

“force” in Chapter Five of the Crimes Code.        Chapter Five of the Crimes Code

concerns justification defenses. See 18 Pa.C.S.A. §§ 501-510. Again, the

Crimes Code does not specifically define the term “force.” However, Section

501 defines the term “unlawful force” in the following manner:

         “Unlawful force.” Force, including confinement, which
         is employed without the consent of the person against whom
         it is directed and the employment of which constitutes an
         offense or actionable tort or would constitute such offense or
         tort except for a defense (such as the absence of intent,
         negligence, or mental capacity; duress; youth; or diplomatic
         status) not amounting to a privilege to use the force. Assent
         constitutes consent, within the meaning of this section,
         whether or not it otherwise is legally effective, except assent
         to the infliction of death or serious bodily injury.

18 Pa.C.S.A. § 501 (emphasis added).5

       For our purposes, it is noteworthy that the legislature defined “unlawful

force” as “force, including confinement.”          This is because the adjective

“unlawful” does not change the fundamental nature of the term “force” –

which, our legislature has declared, “includ[es] confinement.”      Viewed in this

manner, we conclude that the definition of the term “unlawful force” as “force,




____________________________________________


5 The definition of “unlawful force” in Section 501 derives from Section 3.11
of the Model Penal Code.


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J-A26040-19



including confinement,” is evidence that the legislature intended to include

“confinement” in the definition of “force.”

       Further evidence of the legislature’s intent to include “confinement” in

the definition of “force” is found throughout Chapter Five of the Crimes Code.

Specifically, in 18 Pa.C.S.A. § 505 (use of force in self-protection), 18

Pa.C.S.A. § 507 (use of force for the protection of property), and 18 Pa.C.S.A.

§ 508 (use of force in law enforcement), the legislature included a subsection

titled “use of confinement as protective force.”6 Section 505(c) reads:7

         (c) Use of confinement as protective force.--The
         justification afforded by this section extends to the use of
         confinement as protective force only if the actor takes all
         reasonable measures to terminate the confinement as soon
         as he knows that he safely can, unless the person confined
         has been arrested on a charge of crime.

18 Pa.C.S.A. § 505(c).

       As is true with the definition of “unlawful force,” the subsections dealing

with “use of confinement as protective force” are evidence that the legislature

intended “confinement” to constitute “force.”      To be sure, the subsections

expressly declare that confinement is a type of force.




____________________________________________


6 Sections 505, 507, and 508 of the Crimes Code derive from Sections 3.04,
3.06, and 3.07, respectively, of the Model Penal Code.

7 As is relevant to this appeal, the three subsections dealing with “use of
confinement as protective force” are fundamentally identical. Therefore, we
have only quoted one of the three subsections.


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J-A26040-19



      We observe that Section 509 has no separate subsection dealing with

“use of confinement as protective force.”     However, this does not indicate

that the term “force,” in Section 509, excludes confinement.       As we have

explained above, Section 509 refers to “force upon or toward,” thus implying

a concept of force that is either presently applied or presently deployed for

future or conditional application. Moreover, as Appellant cogently notes, the

justification sections that include a subsection on “use of confinement as

protective force” involve emergencies and include the subsection to

expressly limit the duration of any confinement to the emergency.

See Appellant’s Brief at 13; 18 Pa.C.S.A. § 505(c) (“The justification afforded

by this section extends to the use of confinement as protective force only if

the actor takes all reasonable measures to terminate the confinement

as soon as he knows that he safely can”) (emphasis added). The parental

justification defense, however, is based upon the special responsibility of the

parent to the child.   Thus, it would simply not make sense for a similar

subsection to exist in the context of the parental justification defense, as the

parental justification defense is not limited to the context of an emergency –

and, as such, any confinement provision could not be so expressly limited in

duration.

      Therefore, we conclude that, under the plain language of Section

509(1), the Defendants’ actions in confining F.Y. to her room through the use

of secured baby gates could constitute the “use of force . . . toward” F.Y. Our

conclusion is supported by the manner in which the legislature uses the term

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“force” throughout Chapter Five of the Crimes Code. As such, we conclude

that the trial court erred when it refused the Defendants’ requested parental

justification jury instruction. Moreover, we conclude that the failure to instruct

the jury on this total defense clearly prejudiced the Defendants.        We thus

vacate Appellant’s judgment of sentence and remand for a new trial.

      Judgment of sentence vacated.           Case remanded for a new trial.

Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/6/2020




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