J-A18034-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    WAYLYNN MARIE HOWARD,                      :
                                               :
                       Appellant               :      No. 1281 WDA 2018

         Appeal from the Judgment of Sentence Entered August 1, 2018
              in the Court of Common Pleas of Allegheny County
             Criminal Division at No(s): CP-02-CR-0008615-2017

BEFORE: BOWES, J., NICHOLS, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                         FILED NOVEMBER 19, 2019

        Waylynn Marie Howard (“Howard”) appeals from the judgment of

sentence imposed following her convictions of recklessly endangering another

person (“REAP”) and endangering the welfare of children (“EWOC”). 1          We

affirm in part, and reverse in part.

        Howard and her three-year-old daughter, while passengers in a “car for

hire,”2 were involved in a three-vehicle accident in the southbound lane of

Route 28 in Allegheny County, Pennsylvania.          At the time of the accident,

Howard was sitting in the front passenger seat of the vehicle, and her daughter

was sitting in the passenger side of the backseat.         None of the vehicle’s


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1   18 Pa.C.S.A. §§ 2705, 4804(a)(1).

2It is not clear from the record whether the vehicle in question was a taxi, or
part of a ride-sharing service.
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occupants were wearing seatbelts, and there was no car seat in the vehicle

for Howard’s daughter.

      Following a stipulated bench trial, Howard was convicted of REAP and

EWOC, based on her failure to secure her daughter in a car seat. The trial

court sentenced Howard to one year of probation for the EWOC conviction,

and imposed no further penalty for the REAP conviction. Howard filed a timely

Notice of Appeal, and a court-ordered Pa.R.A.P. 1925(b) Concise Statement

of matters complained of on appeal.

      Howard now raises the following issues for our review:

      I. Was the evidence insufficient to establish, beyond a reasonable
      doubt, that [] Howard knowingly endangered the welfare of her
      daughter?

      II. Was the evidence insufficient to establish, beyond a reasonable
      doubt, that [] Howard recklessly endangered her child, or that she
      placed or may [have] placed the child in danger of death or serious
      bodily injury?

Brief for Appellant at 4 (issues renumbered).

      Howard’s claims challenge the sufficiency of the evidence supporting her

convictions.

      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 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

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      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 finder 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. Talbert, 129 A.3d 536, 542-43 (Pa. Super. 2015)

(citation omitted).

      In her first claim, Howard asserts that there was insufficient evidence to

establish that she knowingly endangered the welfare of her daughter, because

she could not have been practically certain that she would expose her child to

danger in a single unsecured car ride. Brief for Appellant at 17, 19. Howard

argues that she observed no warning signs of reckless driving, and “surely did

not enter the car thinking that an accident would occur.” Id. at 20, 23; see

also id. at 21 (explaining that Howard believed the driver would provide a

safe ride).

      The Crimes Code provides that “[a] parent, guardian or other person

supervising the welfare of a child under 18 years of age … commits [the

offense of EWOC] if [s]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).

To support an EWOC conviction, the Commonwealth must establish that

      the accused: (1) is aware of his or her duty to protect the child;
      (2) is aware that the child is in circumstances that threaten the
      child’s physical or psychological welfare; and (3) has either failed
      to act or has taken actions so lame and meager that such actions


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      cannot reasonably be expected to protect the child’s physical or
      psychological welfare.

Commonwealth v. Foster, 764 A.2d 1076, 1082 (Pa. Super. 2000); see

also Commonwealth v. Lynn, 114 A.3d 796, 823 (Pa. 2015) (stating that

“the offense involves the endangering of the physical and moral welfare of a

child by an act or omission in violation of legal duty[,] even though such legal

duty itself does not carry a criminal sanction.” (citation and quotation marks

omitted)). “The mens rea required for this crime is a knowing violation of a

duty of care.” Commonwealth v. Chapman, 763 A.2d 895, 900 (Pa. Super.

2000) (citation and quotation marks omitted).

      Upon review, we conclude that the evidence supports Howard’s EWOC

conviction. The Commonwealth presented evidence that Howard placed her

three-year-old daughter in the back seat of a vehicle, without any safety

restraints.   Although the “car for hire” did not have an appropriate child

passenger restraint system, see 75 Pa.C.S.A. § 4581(a)(1)(i), Howard also

knowingly failed to fasten her daughter’s seatbelt. Notably, Howard stipulated

during the bench trial that she told the responding police officer that she had

feared that her daughter would fly from the back seat and hit the windshield.

See N.T., 8/1/18, at 11.    Howard was therefore aware that her failure to

properly restrain her daughter could cause harm in the event of an accident.

Additionally, we reject Howard’s apparent assumption that, in order to satisfy

the culpability requirement prescribed by 18 Pa.C.S.A. § 4304(a)(1), Howard

would have had to be “practically certain” that a car accident would occur in

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order to endanger her daughter’s welfare.             An EWOC conviction does not

require that the child be in imminent threat of physical harm; rather, it “only

requires proof of circumstances that could threaten the child’s physical or

psychological welfare.” Commonwealth v. Martir, 712 A.2d 327, 330 (Pa.

Super. 1998) (emphasis added). Thus, Howard is not entitled to relief on this

claim.

       In her second claim, Howard argues that there was insufficient evidence

to sustain her conviction of REAP. Brief for Appellant at 9. Howard admits

that her failure to restrain her daughter was “not best practice,” but contends

that her failure was not criminal. Id. at 10. Specifically, Howard claims that

being a passenger in a car does not, alone, present a substantial risk of an

accident. Id. at 9-10. Howard asserts that the “routine accident” was not

foreseeable, so her failure to secure her daughter in a car seat did not rise to

the level of criminal recklessness.            Id. at 10, 13.   Additionally, Howard

points out that she was not driving the vehicle, 3 and argues that the driver

was not driving unsafely or recklessly. Id. at 12-13.




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3As the Commonwealth acknowledges in its brief, see Commonwealth’s Brief
at 6, because Howard was not driving the vehicle, she could not be charged
under the Motor Vehicle Code provision requiring the use of safety restraints.
See 75 Pa.C.S.A. § 4581(a)(1)(i) (stating that “any person who is operating
a passenger car … and who transports a child under four years of age
anywhere in the motor vehicle … shall fasten such child securely in a child
passenger restraint system….” (emphasis added)).

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      A person commits the crime of REAP if she “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. Section 302 of the Crimes Code,

concerning culpability requirements, defines criminal recklessness as follows:

      A person acts recklessly with respect to a material element of an
      offense when [s]he consciously disregards a substantial and
      unjustifiable risk that the material element exists or will result
      from his conduct. The risk must be of such a nature and degree
      that, considering the nature and intent of the actor’s conduct and
      the circumstances known to [her], its disregard involves a gross
      deviation from the standard of conduct that a reasonable person
      would observe in the actor’s situation.

Id. § 302(b)(3). Additionally, “[o]ur law defines serious bodily injury which

creates a substantial risk of death or which causes serious, permanent

disfigurement or protracted loss or impairment of the function of any bodily

member or organ.” Commonwealth v. Klein, 795 A.2d 424, 427 (Pa. Super.

2002) (citation and internal quotation marks omitted).

      Upon review, we conclude that the evidence does not support Howard’s

REAP conviction. This Court is cognizant of the dangers that could result from

a parent’s failure to utilize proper child passenger restraints for their children.

However, while Howard’s actions (or lack thereof) were, as she admits, a

serious mistake in judgment, we cannot conclude that they rose to the level

of criminal recklessness.    See generally Commonwealth v. Wyatt, 203

A.3d 1115, 1119-20 (Pa. Super. 2019) (concluding that evidence was

insufficient to establish criminal recklessness following automobile accident,

where    the   Commonwealth’s      accident    reconstruction   report   did   not

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conclusively establish that appellant was driving while distracted, and there

was no other evidence of erratic driving); Commonwealth v. Hutchins, 42

A.3d 302, 311 (Pa. Super. 2012) (stating that “driving under the influence of

intoxicating substances does not create legal recklessness per se but must be

accompanied with other tangible indicia of unsafe driving to a degree that

creates a substantial risk of injury which is consciously disregarded.” (quoting

Commonwealth v. Mastromatteo, 719 A.2d 1081, 1083 (Pa. Super.

1998)). Accordingly, we reverse Howard’s conviction for REAP.4

       Judgment of sentence affirmed in part, and reversed in part.

       Judge Bowes joins the memorandum.

       Judge Nichols files a concurring and dissenting memorandum.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/19/2019




____________________________________________


4Because Howard received no additional penalty for her REAP conviction, we
decline to remand this matter to the trial court for resentencing.

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