J-S48001-16



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                           Appellee

                    v.

LACEY ANN BOOTS

                           Appellant                     No. 297 WDA 2015


          Appeal from the Judgment of Sentence January 22, 2015
            In the Court of Common Pleas of Allegheny County
            Criminal Division at No(s): CP-02-CR-0005335-2014


BEFORE: BOWES, DUBOW AND MUSMANNO, JJ.

MEMORANDUM BY BOWES, J:                                   FILED JUNE 24, 2016

      Lacey Ann Boots appeals from the judgment of sentence of one year

probation that was imposed after she was convicted at a nonjury trial of

endangering the welfare of a child (“EWOC”) and leaving a child unattended

in a vehicle. We affirm.

      The trial evidence was as follows.          Sometime between 11:15 and

11:30 p.m. on January 19, 2014, Katie McKrell arrived at her residence on

Penn Street, Natrona Heights.         She observed the car owned by Appellant,

her neighbor, parked nearby.          Approximately one hour later, after hearing

crying outside, Ms. McKrell left her home and discovered a toddler, who was

between two and three years old, strapped inside Appellant’s vehicle. The

boy was unsuccessfully attempting to extricate himself from an adult seat
J-S48001-16



belt, and also was crying and shivering. Ms. McKrell took the child inside her

home and covered him with a blanket.

      Ms. McKrell’s boyfriend knocked on Appellant’s door, and, since there

was no response, Ms. McKrell contacted police. At 1:20 a.m. on January 20,

2014, Harrison Township Police Officer Scott Falkner responded to the call.

Officer Falkner testified that the toddler was crying and shivering and that

the temperature that night was around thirty degrees Fahrenheit.

      Officer Falkner proceeded to Appellant’s home. He was allowed inside,

where about five other children were present. Appellant told Officer Falkner

that she had instructed her eight-year-old child to bring the toddler inside

from the vehicle and that she believed that her directive was followed.

Emergency medical personnel responded to the scene. The boy had a body

temperature that was below normal and appeared frightened.           He was

transported to a hospital for treatment.

      At trial, Appellant maintained that her statement to Officer Falkner

that she thought her eight-year-old child brought the toddler inside

established that she did not knowingly leave her child in the car. The trial

court rejected the proffered defense, convicted Appellant of EWOC and

leaving a child unattended in a vehicle, and sentenced her to one year

probation. This timely appeal followed.

      On appeal, Appellant raises a challenge to the sufficiency of the

evidence supporting her EWOC conviction.        She questions whether “the

                                    -2-
J-S48001-16



evidence [was] sufficient to establish that Ms. Boots knowingly left her child

in the vehicle as she thought her oldest child had taken the child inside?”

Appellant’s Brief at 4.   The applicable standard of review of this claim is well

settled:

             The standard we apply in 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 fact-finder to find every element of the
      crime beyond a reasonable doubt. In applying the above test, we
      may not weigh the evidence and substitute our judgment for
      [that of] the fact-finder. In addition, we note that the facts and
      circumstances established by the Commonwealth need not
      preclude every possibility of innocence. Any doubts regarding a
      defendant's guilt may be resolved by the fact-finder unless the
      evidence is so weak and inconclusive that as a matter of law no
      probability of fact may be drawn from the combined
      circumstances. The Commonwealth may sustain its burden of
      proving every element of the crime beyond a reasonable doubt by
      means of wholly circumstantial evidence. Moreover, in applying
      the above test, the entire record must be evaluated and all
      evidence actually received must be considered. Finally, the 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.

Commonwealth v. Irvin, 134 A.3d 67, 75-76 (Pa.Super. 2016) (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) (emphasis added).       In this case, Appellant challenges that the



                                      -3-
J-S48001-16



Commonwealth established the intent element, i.e., that she knowingly

endangered her child’s care. She posits that, at the time of the incident, she

thought that he had been brought inside rather than left in the cold.

      Our Supreme Court has noted that, while the crime in question is a

specific intent crime, the “EWOC statute is 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 not only when a

person takes an affirmative action that endangers a child, but also when a

person who has a duty to protect a child commits an act of omission that

endangers the victim’s welfare.    Id.; Commonwealth v. Cardwell, 515

A.2d 311, 315 (Pa.Super 1986) (quoting in part 18 Pa.C.S § 4304) (“a

parent's duty to protect his or her child requires affirmative performance to

prevent harm and that failure to act may mean that the parent ‘knowingly

endangers the welfare of the child.’”). In Lynn, the Supreme Court adopted

the intent element as mandating that

      (1) the accused is aware of his/her duty to protect the child; (2)
      the accused is aware that the child is in circumstances that could
      threaten the child's physical or psychological welfare; and (3)
      the accused has either failed to act or has taken action so lame
      or meager that such actions cannot reasonably be expected to
      protect the child's welfare.

Lynn, supra at 819.

      Appellant herein does not deny that she had a duty to protect her child

and that he was in circumstances that threatened his welfare since he was



                                    -4-
J-S48001-16



alone in a car for close to two hours in below-freezing temperatures. She

avers that she took an action, instructing her older child to remove him from

the car, to protect the boy and argues that, due to her reliance upon the

older child’s compliance with her instruction, she sought to protect his

welfare.

      Appellant analogizes her case to that of Commonwealth v. Miller,

600 A.2d 988 (Pa.Super. 1992), wherein we reversed a conviction for EWOC.

The defendant in Miller was the mother of a young child who was left

unattended for hours. She had been informed by her child’s father that the

child was being cared for by a neighbor, and left the child believing that

proper adult care was being provided. Based upon the fact that the mother

thought the father was truthful in his representations that the neighbor was

watching the baby, we concluded that she did not knowingly leave the child

unattended and, therefore, did not endanger the welfare of the child. This

Court in Miller ruled that parental mistakes are not sufficient to support

liability for EWOC.

      The facts herein are significantly different from those examined in

Miller.    Mother told an eight-year-old child, not another adult, to bring in

the toddler. She did not check on whether the eight-year-old followed her

directive.   Most significantly, she was inside her home for over an hour

without viewing the toddler.       Under these circumstances, she cannot

plausibly profess to have been unaware that the eight-year-old had ignored

                                     -5-
J-S48001-16



her instruction to bring the victim inside from the freezing weather.

Therefore, viewing all of the evidence in the light most favorable to the

Commonwealth, as the verdict winner, we conclude that there was sufficient

proof to demonstrate beyond a reasonable doubt that Appellant knowingly

left her son in a situation that endangered him.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/24/2016




                                    -6-
