J-S53023-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT
                                                     OF PENNSYLVANIA
                             Appellee

                        v.

    FARUQ ROBINSON

                             Appellant               No. 3377 EDA 2017


      Appeal from the Judgment of Sentence Entered September 15, 2017
              In the Court of Common Pleas of Philadelphia County
               Criminal Division at No.: CP-51-CR-0004473-2013;
              CP-51-CR-0004877-2013; CP-51-CR-0004834-2013;
           CP-51-CR-0004879-2013; and CP-51-CR-0004878-2013


BEFORE: OLSON, STABILE, and NICHOLS, JJ.

MEMORANDUM BY STABILE, J.:                      FILED DECEMBER 31, 2019

        Appellant Faruq Robinson appeals from the September 15, 2017

judgments of sentence entered in the Court of Common Pleas of Philadelphia

County (“trial court”), following his jury convictions for involuntary deviate

sexual intercourse (“IDSI”) with a complainant who is less than 16 years of

age, unlawful contact with minors, corruption of minors, and four counts of

endangering the welfare of children (“EWOC”). 1     Upon careful review, we

affirm.




____________________________________________


1   18 Pa.C.S.A. §§ 3123(a)(7), 6318, 6301(a), 4304(a)(1), respectively.
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        The facts and procedural history of this case are undisputed. 2 As a

result of sexually abusing his niece and physically abusing his four daughters,

Appellant was charged, inter alia, with the foregoing crimes. On July 11, 2016,

Appellant filed a pretrial motion seeking to suppress “any and all statements”

he made to law enforcement. Suppression Motion, 7/11/16 (unpaginated).

In support, Appellant asserted that the police questioned him without his

consent or without obtaining from him a waiver of his right against self-

incrimination. As a result, Appellant argued that “any statements obtained

from [him] were neither knowing, voluntary or authentic.” Id. at ¶ 4.

        On May 22, 2017, the trial court conducted an evidentiary hearing on

Appellant’s suppression motion. At the hearing, the Commonwealth offered

the testimony of Special Agent Robert Walker of the United States Secret

Service. Agent Walker testified that Appellant was not under arrest at the

time of the interview. N.T. Hearing, 5/22/17 at 14. Agent Walker further

testified that he read Appellant his Miranda3 rights prior to the interview. Id.

at 15. Counsel for the Commonwealth rested, believing that Agent Walker’s

testimony was sufficient to establish Appellant’s waiver of his right against

self-incrimination.      The trial court disagreed and granted Appellant’s

suppression motion. The Commonwealth immediately attempted to reopen

the hearing but was denied on the condition that it may do so if it provided

____________________________________________


2Unless otherwise specified, these facts come from the trial court’s October
23, 2018 opinion filed pursuant to Pa.R.A.P. 1925(a).
3   Miranda v. Arizona, 384 U.S. 436 (1966).

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case law to the trial court showing that the testimony of Agent Walker was

sufficient to show a waiver of Miranda rights.                 That evening, the

Commonwealth filed a written motion to reopen the suppression hearing,

asserting that reopening was in the interest of justice. The following morning,

prior to the start of trial, the trial court conducted a hearing on the

Commonwealth’s motion at which counsel for the Commonwealth stated:

      this is a case where the allegation is [Appellant] walked into
      special victims after having requested to give a statement and to
      undergo a polygraph examination, was given the polygraph
      examination, was given his Miranda warnings and waived his
      Miranda warnings and at the conclusion said, ‘I licked this child’s
      vagina.

N.T. Hearing, 5/23/17 at 8. Based on this explanation, the trial court found

that there were questions surrounding Appellant’s custodial status at the time

of the polygraph test. Further, the court found that there was an assertion

that Appellant made a confession to the sexual assault of a child. Thus, the

trial court, in its discretion, found that it was in the interest of justice to allow

the reopening of the suppression hearing to hear supplemental testimony.

      At the supplemental hearing, the Commonwealth once again introduced

the testimony of Agent Walker, who testified that Appellant arrived for the

polygraph test on his own volition, without handcuffs or any type of restraints,

and was not placed in restraints of any kind throughout the test. Id. at 18-

19. Moreover, Agent Walker’s testimony indicated that Appellant was offered

breaks or cessation of the test at Appellant’s request.         Agent Walker also

detailed his demonstration of Appellant’s Miranda rights to him and



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Appellant’s voluntary waiver of those rights prior to the test. The trial court

thus determined that the polygraph test performed by Agent Walker “did not

amount to a custodial interrogation.” Trial Court Opinion, 10/23/18 at 13.

The court found that “there is no evidence on the record to suggest that

[Appellant] was in custody during this interview because his freedom was in

no way restricted during the course of the polygraph test and thus Miranda

warning were not necessary.” Id. at 13-14.

      A jury trial was conducted on May 23, 2017 at which the Commonwealth

called to the stand Appellant’s niece, his four daughters and Agent Walker,

among others. His niece, C.M. (“Victim 1”), testified that, on December 31,

2008, when she was fourteen years old, she attended a New Year’s Eve party

at Appellant’s residence located on 2949 North 13th Street in Philadelphia.

Id. at 62-64. Victim 1 testified that Appellant woke her up in the early hours

of January 1, 2009, and ushered her downstairs to the kitchen where he asked

her to remove her pants and panties. After Victim 1 acquiesced to his demand

to spread her legs, Appellant performed oral sex on her. Later in the morning

of January 1, 2009, Victim 1 notified her aunt—Appellant’s wife C.R.—about

what Appellant had done.     Later that day, Victim 1, accompanied by her

parents, went to the Philadelphia Police Department’s Special Victim’s Unit

(“SVU”), where she told Detective Norma Serrano that Appellant sexually

abused her.




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       Appellant’s step-daughter, A.B. (“Victim 2”), the eldest of his four

daughters, 4 testified to the punishments that she and her sisters received

from Appellant. N.T. Trial, 5/23/17 at 91-94. Victim 2 and her sisters moved

out of Appellant’s house at 2949 North 13th Street in Philadelphia,

Pennsylvania, when she was fifteen years old. The children went to live with

their grandparents about a week after their mother passed away in the

summer of 2012. Victim 2 testified that when she and her sisters still lived

with Appellant, he would often force them into pushup position and strike them

with belts, wooden bed slats, extension cords, poles, or virtually anything

Appellant could get his hands on. Sometimes the beatings would occur while

the girls were not wearing clothes. Because of those beatings, Victim 2 had

welts and bruises on her body, often for minor rule violations. Describing the

beatings by Appellant, Victim 2 testified, “[i]t seemed like it was a game, like

it was fun for him to do.” Id. at 111.

       Victim 2 testified to three separate instances in which she was

hospitalized because of Appellant’s conduct. Describing the first instance of

hospitalization when she was in eighth grade, Victim 2 testified: “[w]e were

all getting in trouble because somebody made lemonade in the water bottle

and nobody told who did it. . . . Everybody was in a push-up position and we

were all getting in trouble. . . . I got pushed into the radiator and a gash in

____________________________________________


4Victim 2 is Appellant’s step-daughter whereas the other three (Victims 3, 4
an 5) are his biological daughters. N.T. Trial, 5/23/17 at 92, 115; N.T. Trial,
5/24/17 at 43, 59.

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my head. . . . I don’t know who did it. I know I got pushed into the radiator.”

Id. at 95-96. Describing the second instance requiring hospitalization, Victim

2 testified:

      We were told to fold a bunch of bags of clothes. I don’t know how
      many bags of clothes, it was a lot. It filled up most of the front
      room. We were folding all night and we were getting tired so we
      ended up falling asleep on the bags. The next morning [Appellant]
      came downstairs and started beating everybody. I ran into the
      kitchen because I couldn’t take the hits. I ran into the kitchen
      and hid under the table. He flipped the table on my hand. . . .
      He was still trying to get to me with the belt.

Id. at 97-98. As a result of that incident, Victim 2 had two broken fingers.

Victim 2 then testified to the third incident resulting in her hospitalization: “I

went up to the third-floor bathroom, a place where nobody even uses, and I

was getting hit. I don’t know with what, but I was getting hit, and I kicked

the bathroom pole and it went into my foot.” Id. at 101. Victim 2 testified

that it was her mother who took her to the hospital. Id. at 97-100. Victim 2

further testified that, before she went to the hospital, Appellant told her “to

say we were playing it was an accident.” Id. at 97-100.

      Appellant’s daughter, I.B. (“Victim 3”), the second oldest of his

daughters, testified that she lived with him until the girls moved out when she

was thirteen. When examined as to whether the beatings happened to her

specifically, or to all of the girls, Victim 3 testified: “It was usually all four of

us, unless it was something like, that one of us did individually, like a bad

grade or something like that. But usually just all of us.” Id. at 119. Victim

3 testified that all of the girls were beaten with broomsticks, wooden panels,

belts, and a bat. She also stated that the girls were hit all over their bodies.

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Victim 3 testified to the visible bruising and welts left on her and her sisters

because of Appellant’s punishments. Victim 3 further testified to Victim 2’s

three hospitalizations involving the gash from the radiator, the table breaking

her fingers, and the foot injury.   Victim 3 finally testified to a time when

Appellant hit her with a braided belt, resulting in the skin being taken off her

face. Id. at 119-20.

      The second youngest of Appellant’s daughters, C.B. (“Victim 4”),

testified that she lived with her father until she was about eleven years old.

Victim 4 testified that the girls were often forced into pushup position by

Appellant, where they would be hit with metal spoons, extension cords, bats,

and wooden bed slats. Victim 4 further testified that an example of a standard

punishment the girls faced would be a beating with a wooden panel if they did

not clean their room. Victim 4 also testified: “We had to get in the shower

and got in trouble in the shower. . . . He had a belt and we got hit while the

shower was running.” N.T. Trial, 5/24/17 at 73. The girls were not wearing

clothing during beatings in the shower. The frequency of the abuse, according

to Victim 4’s testimony, was “twice a week, two, three times a week.” Id. at

66. Because of the beatings, Victim 4 testified to the bruising on the girls’

bodies as “red marks or sometimes blue, purple if it was that bad.” Id. at 75.

Victim 4 recounted that she shared the abuse with her first-grade teacher

because “I couldn’t sit down because bruises on my legs. She asked me what

happened, like why was—why I couldn’t sit down. I told her and she looked

at the bruises and she took me to the principal and they called DHS.” Id. at

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78. Victim 4 also testified to and confirmed Victim 2’s three hospitalizations.

In specific, Victim 4 recounted that she “heard a table fall and my sister came

out with her hand bleeding. Her fingers were, like hanging off. My mom took

her to the hospital.” Id. at 67.

      Appellant’s youngest daughter, B.B. (“Victim 5”), testified that she lived

with her father until she was nine. Victim 5 testified: “We would get beat

mostly with belts,” but also mentioned beatings with broomsticks and bats.

Id. at 46. Victim 5 also testified: “Usually, I would get in trouble, like, it would

be all of us together. I never got in trouble separately.” Id. at 48. According

to Victim 5, the girls were hit “everywhere” and that these beatings would

occur “every other day,” sometimes with clothing on, sometimes not. Id. at

46-47, 54.    Describing the welts left on her body because of Appellant’s

punishment, Victim 5 testified that sometimes she had to wear different

clothing to hide them. Victim 5 also testified to Victim 2’s hospitalizations,

mentioning specifically the gash on Victim 2’s forehead from the radiator and

her broken fingers.    Regarding the gash on Victim 2’s forehead, Victim 5

testified that Victim 2 was alone in the room with Appellant when it happened.

Finally, Victim 5 recalled an incident when “a roach had crawled in the cereal”

and Appellant told them “to eat it.” Id. at 52.

      The Commonwealth next called to the stand Agent Walker, who testified

that, on April 9, 2009, he was brought in to perform a polygraph test on

Appellant. N.T. Trial, 5/24/17 at 146-48. The polygraph test took place in

the Episcopal Hospital interview room, in the SVU. Appellant drove himself to

                                       -8-
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the interview. 5    Id. at 147.      Agent Walker testified that Appellant came

voluntarily and waived his Miranda rights, written and orally, prior to taking

the polygraph test. The written waiver, however, was not available at trial.

Agent Walker testified:       “[i]t was a completely voluntary process, he was

allowed to leave at any time, he’s allowed to request counsel at any time.”

Id. at 156.     Agent Walker further testified that, at the conclusion of the

polygraph test, Appellant voluntarily signed a handwritten confession, which

reads: “I agree with [Victim 1’s] story. I had no reason to be alone with you

in the kitchen and I put my tongue on your vagina.           I made a fucked up

decision and now have to live with it. I am very sorry.” Id. at 151.

       In response, Appellant testified on his own behalf. He testified that he

requested an interview with Special Agent Robert Walker of the United States

Secret Service. N.T. Trial, 5/25/17, at 28. Appellant testified that he drove

himself to the polygraph test with Special Agent Walker. Appellant testified

that he was offered breaks at any time, and that he took two breaks during

the interview. When asked whether he was free to leave the polygraph test,

Appellant testified, “absolutely.”         Id. at 30.   During cross-examination,

Appellant was asked “after they talk to you about what your Miranda

warnings are, you tell them you’re happy to talk to them?” to which Appellant

testified, “Absolutely, yes.” Id. at 31. Appellant testified that he handwrote

____________________________________________


5 Appellant also acknowledged that he requested and voluntarily appeared for
the interview with Agent Walker and understood that he was free to leave or
terminate the interview at any time. N.T. Trial, 5/25/17 at 29-30.

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the confession to performing oral sex on Victim 1. Id. at 35-36. Appellant

also testified that he disciplined his children with a belt for purposes of

punishment for flouting his rules. Id. at 22, 45. He testified that he had seen

the resulting bruises and welts on his children and used cocoa butter to heal

them. Id. at 23.

      Appellant also offered the testimony of his younger sister, Sakinah

Alexander, who testified that during the relevant timeframe she did not

observe any injuries on any of the children. Id. at 15. Furthermore, Appellant

called to the stand Dr. Sharon McClain, a mental health clinician at Wedge

Mental Health Clinic. N.T. Trial, 5/24/17 at 160. Dr. McClain testified that

Appellant and “his wife were involved in counseling, family counseling.” Id.

She testified that she had an opportunity to get to know Appellant’s children,

“from the youngest to the oldest.” Id. Dr. McClain testified that after leaving

her employment, she eventually became “fast friends” with Appellant’s family.

Id. at 161. “There were times when I spoke with the children by themselves.

There were problems in school that individually they had been having. So it

went from having them as clients to being best friends.” Id. While having

Appellant’s family as her clients, Dr. McClain was a “mandatory reporter” of

sexual or domestic abuse involving children. Id. She finally testified that she

never reported any abuse with respect to Appellant’s children. Id. Lastly,

Appellant presented his father’s, Daryle Robinson, testimony. Mr. Robinson

testified that during his visits to Appellant’s home, he did not notice any

injuries to any of Appellant’s children. Id. at 166.

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       Following trial, on May 30, 2017, the jury found Appellant guilty of IDSI

with a complainant who is less than 16 years of age, unlawful contact with

minors, corruption of minors, and four counts of EWOC. On September 15,

2017, the trial court sentenced Appellant to an aggregate term of 10 to 24

years’ imprisonment. Appellant filed post-sentence motions, which the trial

court denied on September 28, 2017.                Appellant timely appealed. 6   Both

Appellant and the trial court complied with Pa.R.A.P. 1925.

       On appeal, Appellant raises three issues for our review:

       [I.] Did the trial court err by granting Commonwealth’s motion to
       re-open evidentiary hearing where the Commonwealth
       intentionally omitted evidence?

       [II.] Is the evidence insufficient to prove Appellant guilty beyond
       a reasonable doubt of [EWOC] where the children were not in
       circumstances that could threaten their welfare, Appellant did not
       act or fail to act in protecting their welfare, and use of force was
       justified corporal punishment?

       [III.] Did the trial court err by denying Appellant’s motion for a
       new trial for the [EWOC] convictions, where the verdict was
       contrary to the weight of the evidence because any of force was
       justified corporal punishment?

Appellant’s Brief at 5 (unnecessary capitalizations omitted).

____________________________________________


6  Although Appellant filed a notice of appeal within thirty days of the judgment
of sentence, Appellant did not separately appeal the judgments of sentence
registered under different docket numbers. In Commonwealth v. Walker,
185 A.3d 969 (Pa. 2018), our Supreme Court confronted a situation where a
litigant filed a single notice of appeal from an order that resolved issues
relating to four different docket numbers and, on that notice of appeal, the
litigant listed all four docket numbers. Walker, 185 A.3d at 974. The Walker
Court held: “when a single order resolves issues arising on more than one
lower court docket, separate notices of appeal must be filed. The failure to
do so will result in quashal of the appeal.” Id. at 977. Walker, however, is
prospective, and Appellant’s appeal was taken before Walker was decided.
Because Walker is inapplicable, we decline to quash the instant appeal.

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      We address Appellant’s claims seriatim. Appellant first argues that the

trial court abused its discretion in granting the Commonwealth’s motion to

reopen the suppression hearing. See Appellant’s Brief at 13. Appellant points

out that the Commonwealth intentionally and “deliberately chose to introduce

certain evidence and, more importantly, to omit other evidence.” Id. at 14.

Further, Appellant claims that the Commonwealth did not establish that he

“was not in custody” at the time of the polygraph test. Id. Appellant further

claims that the Commonwealth merely introduced Agent Walker’s statement

that he apprised Appellant of his Miranda rights, but did not introduce any

evidence that Appellant understood the warning or voluntarily relinquished his

right against self-incrimination.    Id. at 15.     Appellant maintains that the

Commonwealth did not produce any such evidence despite being invited by

the trial court to do so and rested its case. Id.

      Pennsylvania law is well-settled:

      It is within the trial court’s discretion to allow either side to reopen
      its case, prior to judgment, to prevent a failure or miscarriage of
      justice. The admissibility of evidence is a matter solely within the
      discretion of the trial court. This court will reverse an evidentiary
      ruling only when a clear abuse of discretion has occurred. The
      trial court may exclude evidence which is merely cumulative of
      other evidence.

Commonwealth v. Smith, 694 A.2d 1086, 1091 (Pa. 1997) (quotation and

citations omitted).

      Instantly, we cannot conclude that the trial court abused its discretion

in granting the Commonwealth’s motion to reopen the suppression hearing.

As detailed above, the trial court initially granted Appellant’s suppression


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motion, concluding that the Commonwealth failed to establish that Appellant

was given Miranda warnings or that he understood and relinquished the

same.    However, soon after, it became apparent that Appellant’s custodial

status was less than clear and that Appellant indeed had requested and

voluntarily appeared for the polygraph test. As a result, the trial court granted

the Commonwealth’s motion for purposes of fleshing out the facts concerning

Appellant’s custodial status and correcting a possible miscarriage of justice by

suppressing Appellant’s confessional statement given to Agent Walker at the

conclusion of the polygraph test. Even if the trial court had not granted the

Commonwealth’s motion, there was sufficient evidence presented at the initial

suppression hearing to suggest that Appellant was not in custody at the time

of the April 9, 2009 polygraph test to trigger a Miranda warning. Accordingly,

Appellant’s first issue does not merit relief.7

       We next address Appellant’s challenge to the sufficiency of the evidence.

In this regard, Appellant argues that the evidence “is insufficient to prove that

the children were in circumstances that could threaten their welfare, or that

[Appellant] acted or failed to act in protecting their welfare.” Appellant’s Brief

at 18. Appellant claims that his “actions indicate that, to the contrary, he was

____________________________________________


7To the extent Appellant claims that the Commonwealth intentionally withheld
evidence concerning his custodial status, such claim is bereft of record
support. The record, as recited above, merely demonstrates that the
Commonwealth, represented by an inexperienced prosecutor (N.T. Hearing,
5/22/17 at 17) (“I’ve been in this office for four months”), committed a simple
error in failing to highlight Appellant’s custodial status when contesting the
suppression motion.

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concerned with their welfare as he would always rub cocoa butter on any welts

that they would have.” Id. at 19. Alternatively, Appellant argues that the

evidence is insufficient to establish EWOC because “his conduct was justified

corporal punishment.” Id. at 20.

      “A claim challenging the sufficiency of the evidence is a question of law.”

Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000).

      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
      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. Antidormi, 84 A.3d 736, 756 (Pa. Super. 2014), appeal

denied, 95 A.3d 275 (Pa. 2014).

      EWOC is defined in Section 4304, which provides in relevant part that

“[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 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).

Section 302(b) of the Pennsylvania Crimes Code provides:


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     (2) A person acts knowingly with respect to a material element of
     an offense when:

             (i) if the element involves the nature of his conduct or
             the attendant circumstances, he is aware that his
             conduct is of that nature or that such circumstances
             exist; and

             (ii) if the element involves a result of his conduct, he
             is aware that it is practically certain that his conduct
             will cause such a result.

18 Pa.C.S.A. § 302(b). In Commonwealth v. Sebolka, 205 A.3d 329 (Pa.

Super. 2019), we explained:

     This Court has employed a three-prong test to determine whether
     the Commonwealth’s evidence is sufficient to prove that a
     defendant knowingly violated a duty of care under Section
     4304(a)(1): (1) the accused must be aware of his or her duty to
     protect the child; (2) the accused must be aware that the
     child is in circumstances that could threaten the child’s
     physical or psychological welfare; and (3) the accused
     either must have failed to act, or must have taken action so
     lame or meager that such actions cannot reasonably be
     expected to protect the child’s welfare.


Sebolka, 205 A.3d at 337 (citing Commonwealth v. Smith, 956 A.2d 1029,

1038 (Pa. Super. 2008)) (formatting altered) (emphasis added).           In

Commonwealth v. Mack, 359 A.2d 770 (Pa. 1976), our Supreme Court

explained:

     The purpose of juvenile statutes, as the one at issue here, is
     basically protective in nature. Consequently these statutes are
     designed to cover a broad range of conduct in order to safeguard
     the welfare and security of our children. Because of the diverse
     types of conduct that must be circumscribed, these statutes are
     necessarily drawn broadly. It clearly would be impossible to
     enumerate every particular type of adult conduct against which
     society wants its children protected.       We have therefore
     sanctioned statutes pertaining to juveniles which proscribe
     conduct producing or tending to produce a certain defined result
     rather than itemizing every undesirable type of conduct. . . . .
     Thus, statutes such as the one at issue here are to be given
     meaning by reference to the common sense of the community and
     the broad protective purposes for which they are enacted.


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Mack, 359 A.2d at 772 (formatting altered; citations and quotation marks

omitted).

      Instantly, based upon the evidence presented at trial, as detailed above

and viewed in a light most favorable to the Commonwealth, we agree with the

trial court’s conclusion that the Commonwealth proved beyond a reasonable

doubt that Appellant committed EWOC.

      First, it is uncontested that Appellant owed a duty of care to his

daughters and that he breached the duty by repeatedly subjecting them to

physical abuse.     Second, the evidence recited earlier demonstrates that

Appellant knowingly placed his daughters in circumstances that could and did

threaten their physical and psychological welfare.        Commonwealth v.

Winger, 957 A.2d 325, 329 (Pa. Super. 2008) (In the context of EWOC,

“intent [often] cannot be proven directly but must be inferred from

examination of the facts and circumstances of the case.          Therefore, the

Commonwealth is not required to provide direct proof of [a defendant’s] frame

of   mind.”)   (citations   omitted),   abrogated   on   other   grounds     by

Commonwealth v. Dantzler, 135 A.3d 1109 (Pa. Super. 2016) (en banc).

Appellant’s children, Victims 2, 3, 4, and 5 testified that he struck them—often

when they were forced into a pushup position—with belts, bats, broomsticks,

wooden bed slats, extension cords, poles or anything he could get his hands

on. He would hit them all over their bodies. Sometimes, when the beatings

occurred, the girls were not wearing any clothes. Because of these beatings,

the girls would suffer visible bruises and marks. In fact, Victim 3 recounted

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an incident where Appellant hit her with a braided belt, resulting in the skin

being taken off her face. In addition to the physical abuse, Victim 5 testified

that Appellant made the girls eat a roach that had crawled in their cereal.

Finally, the evidence in this case indicates that Appellant did not dial back the

physical abuse directed at his daughters and that he failed to take any actions

that reasonably could be expected to protect their welfare. On the contrary,

Appellant told Victim 2 to inform the hospital staff that her injuries were a

result of an accident. It long has been recognized that a defendant’s attempts

to cover up after a crime can be inferred to demonstrate a consciousness of

guilt. See Commonwealth v. Bradley, 69 A.3d 253, 258 (Pa. Super. 2013)

(“The fabrication of false and contradictory accounts by an accused criminal,

for the sake of diverting inquiry or casting off suspicion, is a circumstance

always indicatory of guilt.”) (citations omitted), appeal denied, 79 A.3d 1095

(Pa. 2013). Accordingly, Appellant’s sufficiency claim is without merit.

      To the extent Appellant specifically challenges the sufficiency of the

evidence with respect to Victim 2, such challenge likewise is without merit.

Appellant argues that the evidence was insufficient to sustain his conviction

for EWOC because he was not responsible for Victim 2’s injuries. Appellant

claims that he did not push her into the radiator, but took her to the hospital

afterwards. Appellant’s Brief at 19. He also claims that he is not responsible

for her broken fingers. Id. He argues that when he flipped over the table

under which Victim 2 was hiding, he did not know “that this act would threaten

[Victim 2’s] welfare.” Id. “It is just as likely that this was an accident.” Id.

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Appellant, however, points out that he took Victim 2 to the hospital.      Id.

Finally, Appellant claims that he did not cause Victim 2’s foot injury. Id. at

19-20.   According to Appellant, “while [he] was punishing her, [Victim 2]

kicked a bathroom pole and it went through her foot.” Id. at 20. He asserts

that he took Victim 2 to the hospital afterwards. Id.

     The Commonwealth notes:

     [Appellant’s] arguments defy common sense. Simply because he
     did not directly cause the injuries does not mean he did not
     knowingly put [Victim 2] in a situation where injury would likely
     result. Even if it were one of [Appellant’s] other daughters who
     pushed [Victim 2] into the radiator, [Appellant] nonetheless put
     his children in a circumstance that could threaten their physical
     welfare by beating them with his belt [and other objects] to the
     point that they were pushing each other into radiators to escape.
     Similarly, any rational adult would understand that flipping over a
     kitchen table, under which his daughter hid from his repeated
     blows, places her in a position to be injured, as does beating her
     on the bathroom floor near poles on which she could impale her
     foot.

Commonwealth’s Brief at 18. We agree. See Commonwealth v. Smith,

956 A.2d 1029, 1038 (Pa. Super. 2008) (“The ‘knowing’ element of the crime

applies to the general issue of whether the defendant knew that he was

endangering the child’s welfare, not whether the defendant knew that he

would cause any particular result.”) (emphasis added), appeal denied,

989 A.2d 917 (Pa. 2010); see also Commonwealth v. Passarelli, 789 A.2d

708 (Pa. Super. 2001) (evidence sufficient for EWOC where appellant’s act

“was not designed to protect, care or support” the child), abrogated on other

grounds by Commonwealth v. Spruill, 80 A.3d 453 (Pa. 2013).




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      Appellant’s bald argument that his application of cocoa butter on wounds

or his taking Victim 2 to the hospital after each incident of abuse demonstrates

an intent to care for or protect the children’s welfare is without merit. First,

as the Commonwealth notes, Appellant does not cite any legal authority for

the proposition that application of cocoa butter on wounds is sufficient remedy

for beating a minor with belts, bats, broomsticks, wooden bed slats, extension

cords, or poles. Second, the application of cocoa butter was not Appellant’s

idea, but rather the idea of his daughters’ mother. N.T. Trial, 5/25/17 at 23.

Appellant concedes that the mother used cocoa butter because “she knew it

would heal the skin.” Id. Likewise, Victim 2’s trips to the hospital do not

illustrate Appellant’s intent to care for her.   As indicated above, Victim 2

testified that it was her mother—not Appellant—who took her to the hospital.

Accordingly, under the circumstances of this case, Appellant’s remedial actions

taken after he physically abused his daughters were meager at best and they

did not obviate the recurrence of abuse.

      Appellant’s invocation of the affirmative defense of corporal punishment

is equally unavailing. Section 509 provides in relevant part:

      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



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J-S53023-19


            (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) (emphasis added). In Commonwealth v. Ogin, 540

A.2d 549 (Pa. Super. 1988), appeal denied, 557 A.2d 343 (Pa. 1988), we

explained that Section 509 represents a compromise between a parent’s right

to use corporal punishment and the need for “limits regarding the type and

severity of the corporal punishment which a parent may impose.” Ogin, 540

A.2d at 554. We added that “Section 509(1)(i) and (ii) involve independent

requirements and appellants are not entitled to a justification defense unless

they complied with both standards.” Id.

      For purposes of Section 509, “[t]he term ‘extreme’ is synonymous with

excessive. [Therefore, Section 509] simply says pain inflicted as a result of

discipline must not be excessive. The punishment must be justifiable and fit

the misconduct. Excessive discipline is contrary to the welfare of the child,

even when discipline is justifiable.” Commonwealth v. Douglass, 588 A.2d

53, 56 (Pa. Super. 1991); see also Ogin, 540 A.2d at 555 (noting that “a

defendant’s actions are not legally justified simply because he may sincerely

believe that the best way of safeguarding or promoting a child’s welfare is to

inflict a cruel and patently excessive punishment.”). “[W]hen applying the

justification statute, the court should focus not only on the degree of force

exerted by the parent but also on the age and the physical and mental

condition of the child who has been disciplined.” Ogin, 540 A.2d at 555. The

Commonwealth bears the burden of proof to show, beyond a reasonable

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doubt, that the defendant is not entitled to a justification defense.        See

Douglass, 588 A.2d at 56; see also 18 Pa.C.S.A. § 502 (stating that “[i]n

any prosecution based on conduct which is justifiable under this chapter,

justification is a defense.”).

      Here, viewing the evidence in the light most favorable to the

Commonwealth, there was sufficient evidence to establish that the force

exerted by Appellant was not undertaken for the purposes of safeguarding his

daughters—Victims 2, 3, 4 and 5—who were fifteen, thirteen, eleven and nine

years old, respectively. Appellant frequently forced them—sometimes when

they were naked—into a pushup position until exhaustion, and once beat

them—while they were naked—in the shower. The evidence also reveals that

Appellant forced the girls to eat a roach. Appellant’s style of “punishment”

went far beyond what Section 509 contemplated. See Commonwealth v.

Tullius, 582 A.2d 1, 4 (Pa. Super. 1990) (Corporal punishment protected

under Section 509 must be “necessary to maintain reasonable discipline” and

be “consistent with the child’s welfare”), appeal denied, 593 A.2d 418 (Pa.

1991).

      Furthermore,     the   punishments   employed   by   Appellant   for   rule

violations, such as beating his daughters with belts, bats and the like, was

designed to cause disfigurement, extreme pain, mental distress or gross

degradation.    As stated, all of Appellant’s daughters suffered “red, blue,

sometimes puffy” marks and bruises.” N.T. Trial 5/24/17 at 76. Victim 3

testified that the skin was taken off her face. N.T. Trial 5/23/17 at 119-20.

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J-S53023-19



Victim 2 suffered a gash to her head, an impalement in her foot, and broken

fingers “hanging off” her hands, requiring hospitalizations.     Id. at 96-101.

Victim 4’s teacher observed Appellant’s abuse because the bruises on her legs

were so bad that she could not sit down at school. N.T. Trial, 5/24/17 at 78.

Victim 5 sustained welts on her arms and legs to the point that she testified

to wearing certain types of clothes to conceal them. Id. at 53-54. Thus,

Victims 2 and 3 were at risk for disfigurement and Appellant created a risk of

“extreme pain, mental distress and gross degradation” for all four victims of

his physical abuse. As the trial court reasoned:

      [Appellant’s] four children provided extensive testimony regarding
      the abuse they suffered at the hands of their father. The
      punishments the girls faced appear to be excessive in proportion
      to their violations of rules, crossing the threshold from corporal
      punishment to malicious abuse. [Victim 2’s] testimony, regarding
      [Appellant’s] abuse, that “it seemed like it was a game, like it was
      fun for him to do” displays [Appellant’s] mental state—that the
      punishments were not accomplished with an attitude of proper
      parental responsibility for teaching the children right from wrong,
      but were an abuse of the privilege of Appellant’s relationship with
      his children.

Trial Court Opinion, 10/23/18 at 19. Therefore, viewing the evidence in a light

most favorable to the Commonwealth, we conclude that the Commonwealth

introduced sufficient evidence to reject Appellant’s justification defense.

      We lastly turn to Appellant’s weight of the evidence claim. Appellant

argues that none of his trial witnesses observed any injuries on his daughters

and that his three biological daughters expressed a desire to live with him

again. Appellant’s Brief at 23.

            A motion for a new trial based on a claim that the verdict is
      against the weight of the evidence is addressed to the discretion
      of the trial court. A new trial should not be granted because of a

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J-S53023-19


      mere conflict in the testimony or because the judge on the same
      facts would have arrived at a different conclusion. Rather, the
      role of the trial judge is to determine that notwithstanding all the
      facts, certain facts are so clearly of greater weight that to ignore
      them or to give them equal weight with all the facts is to deny
      justice. It has often been stated that a new trial should be
      awarded when the jury’s verdict is so contrary to the evidence as
      to shock one’s sense of justice and the award of a new trial is
      imperative so that right may be given another opportunity to
      prevail.

            An appellate court’s standard of review when presented with
      a weight of the evidence claim is distinct from the standard of
      review applied by the trial court:

             Appellate review of a weight claim is a review of the exercise
      of discretion, not of the underlying question of whether the verdict
      is against the weight of the evidence. Because the trial judge has
      had the opportunity to hear and see the evidence presented, an
      appellate court will give the gravest consideration to the findings
      and reasons advanced by the trial judge when reviewing a trial
      court’s determination that the verdict is against the weight of the
      evidence. One of the least assailable reasons for granting or
      denying a new trial is the lower court’s conviction that the verdict
      was or was not against the weight of the evidence and that a new
      trial should be granted in the interest of justice.


Commonwealth v. Clay, 64 A.3d 1049, 1054–55 (Pa. 2013) (internal

citations and quotation marks omitted) (emphasis in original). “A motion for

new trial on the grounds that the verdict is contrary to the weight of the

evidence, concedes that there is sufficient evidence to sustain the verdict.”

Widmer, 744 A.2d at 751.

      Here, in support of his weight of the evidence claim, Appellant points

out that none of the defense witnesses observed any injuries on his daughters

and that his daughters have expressed a desire to live with him. At the core,

Appellant challenges the trial court’s credibility and weight determination,

which is something we may not entertain. It is within the province of the jury

to make credibility determinations and this Court will not reweigh credibility


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determinations on appeal. “Conflicts in the evidence and contradictions in the

testimony    of   any   witnesses    are   for   the   fact   finder   to   resolve.”

Commonwealth v. Sanders, 42 A.3d 325, 331 (Pa. Super. 2012) (citing

Commonwealth v. Tharp, 830 A.2d 519, 528 (Pa. 2003)). “A jury decision

to credit certain evidence and reject other testimony is appropriate; therefore,

the trial court did not abuse its discretion in concluding that its sense of justice

was not shocked by the verdict.” Id. Thus, it is clear that the jury heard the

testimony of all witnesses and found the testimony of the victims more

credible than the testimony of Appellant’s witnesses.             Additionally, his

daughters’ desire to live with him does not mitigate the evidence of physical

and psychological abuse nor does it absolve Appellant of the same. Based

upon our review, we find no abuse of discretion on the part of the trial court

for concluding its sense of justice was not shocked by the verdict. Appellant’s

final issue, therefore, fails.

      Judgments of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/31/19




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