J-S47037-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                : IN THE SUPERIOR COURT OF
                                             :        PENNSYLVANIA
                  Appellee                   :
                                             :
                      v.                     :
                                             :
S.P.,                                        :
                                             :
                  Appellant                  : No. 6 MDA 2015

        Appeal from the Judgment of Sentence Entered December 3, 2014,
              in the Court of Common Pleas of Lackawanna County,
               Criminal Division, at No(s): CP-35-CR-0000709-2014

BEFORE:       ALLEN, OTT, and STRASSBURGER, JJ.*

MEMORANDUM BY STRASSBURGER, J.:                        FILED AUGUST 07, 2015

        Stewart Powell (Appellant) appeals from the judgment of sentence

after a jury convicted him of endangering the welfare of children (EWOC)

and simple assault, and the trial court convicted him of two counts of

summary harassment. We affirm.

        This case stems from a domestic incident that occurred on March 19,

2014, at the home of Stephanie Teeple.              Teeple is the mother of four

children, three of whom are the children of Appellant.        Those children are

S.U.P. (age 7), A.P. (age 5), and S.T.P. (age 20 months).1 Appellant was

taking care of S.U.P. and S.T.P., when he called Teeple to tell her that S.T.P

“would not stop crying” and that she needed to “get home.” N.T.,

11/9/2014, at 26. Teeple was on a bus and on her way home at the time of


1
    Teeple’s fourth child is J.T. (age 9 months).


*Retired Senior Judge assigned to the Superior Court.
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the phone call.   Appellant “was cursing and carrying on and yelling” and

eventually texted Teeple that he was leaving the children alone in the home.

Id. at 27.    Out of concern, Teeple called S.T.P.’s godmother, who lived

nearby, and asked her to go check on the children. Appellant called Teeple

again and told her that S.T.P. was no longer crying because Appellant

“punched him in the face.” Id. at 29.

     Teeple arrived home approximately 20 minutes later and found

Appellant lying on the couch.    S.T.P. was lying on the other couch with

S.U.P. At that point, an altercation occurred between Appellant and Teeple.

Appellant got up from the couch and was “carrying on and ranting and

raving” about the children. Id. at 30. Teeple also picked up S.T.P. from the

couch and noticed bruising.     Teeple then proceeded upstairs to where

Appellant had gone, and Appellant started “getting physical.” Id. at 31.

Appellant knocked a phone out of Teeple’s hand, “pinned” Teeple in her

daughter’s room, choked Teeple, then scratched her as she exited the room.

Id. Teeple went into the kitchen to call police, and Appellant then pulled her

by the hair and “flung” her to the ground. Id. at 32. Appellant pushed S.T.P

into the screen door and told Teeple to pick up her “pussy son.” Id. S.T.P.

ended up with “an abrasion of the eyebrow.” Id. at 33.        Appellant then

changed clothes and left the house while Teeple called the Scranton Police

Department.




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      Officer Matthew Phillips responded to the scene. When Officer Phillips

arrived, Appellant was no longer there, and Teeple told Officer Phillips that

Appellant had assaulted both her and S.T.P.         Officer Phillips contacted

Appellant, who indicated that he would meet Officer Phillips at the police

station. Appellant did not report, and Officer Phillips obtained a warrant for

Appellant’s arrest.

      Appellant was arrested on March 30, 2014 and charged with EWOC,

simple assault with S.T.P. as the victim, simple assault with Teeple as the

victim, and the summary charges of two counts of harassment. A jury trial

was held on September 9, 2014. Appellant was found guilty by the jury of

EWOC and simple assault with Teeple as the victim. He was found not guilty

of simple assault with S.T.P. as the victim. The trial court found Appellant

guilty of two counts of harassment.

      On December 3, 2014, Appellant was sentenced to an aggregate term

of two to five years’ incarceration to be followed by five years’ probation. He

was also fined $300 for each summary offense.         Appellant timely filed a

post-sentence motion, which was denied on December 10, 2015. Appellant

timely filed a notice of appeal.      In response to the trial court’s order,

Appellant timely filed a concise statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925. However, the trial court did not file an opinion

in response.




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      Appellant challenges the sufficiency of the evidence to sustain his

convictions, and we set forth our well-settled standard of review.

             In reviewing the sufficiency of the evidence, we view all
      the evidence admitted at trial in the light most favorable to the
      Commonwealth, as verdict winner, to see whether there is
      sufficient evidence to enable the jury to find every element of
      the crime beyond a reasonable doubt. This standard is equally
      applicable to cases where the evidence is circumstantial rather
      than direct so long as the combination of the evidence links the
      accused to the crime beyond a reasonable doubt. Although a
      conviction must be based on more than mere suspicion or
      conjecture, the Commonwealth need not establish guilt to a
      mathematical certainty. The trier of fact is free to believe all,
      some, or none of the testimony presented.

Commonwealth v. Martuscelli, 54 A.3d 940, 947 (Pa. Super. 2012)

(citations and quotations omitted).

      Appellant argues that the evidence was insufficient to establish that he

committed the crimes EWOC and harassment. Appellant contends that “the

entire incident [at issue] took place within only a short time and limited

space and, thus, is not the type of situation meant to be encompassed by

the statute.” Appellant’s Brief at 15. Appellant further argues that this event

constituted a “brief and inappropriate mistake in judgment that does not rise

to the level of criminal culpability.” Id.    Appellant also argues that his

“simple push” did not place S.T.P. “in circumstances that could threaten his

physical welfare.” Id. at 14.

      The statute governing EWOC provides that “[a] parent, guardian or

other person supervising the welfare of a child under 18 years of age …



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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). “In

reviewing section 4304, we must be aware that the legislature attempted to

prohibit a broad range of conduct in order to safeguard the welfare and

security of our children. Further, [t]he common sense of the community

should be considered when interpreting the language of the statute.”

Commonwealth v. Trippett, 932 A.2d 188, 194 (Pa. Super. 2007)

(citations and quotations omitted).

      We observe that case law does not support Appellant’s theory that an

EWOC conviction requires several incidents over time, rather than a single

incident or “mistake in judgment” as Appellant suggests. Moreover, there is

ample case law finding EWOC convictions sufficient premised on single

instances of misconduct. See, e.g., Commonwealth v. Retkofsky, 860

A.2d 1098 (Pa. Super. 2004) (rejecting appellant’s argument that a single

instance of misconduct is not the type of harm contemplated under the

statute where father knew he was placing son at risk by fleeing from police

on ATV while son was on the back of it unrestrained); Commonwealth v.

Smith, 956 A.2d 1029 (Pa. Super. 2008) (holding evidence sufficient to

sustain EWOC conviction when father shook baby resulting in Shaken Baby

Syndrome); Commonwealth v. Cesar, 911 A.2d 978 (Pa. Super. 2006)

(holding evidence sufficient to sustain EWOC conviction where father




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perpetrated a single incident of sexual abuse on five-year-old daughter).

Thus, Appellant is not entitled to relief on this basis.

      Appellant also contends that he did not act “knowingly” under these

circumstances.    Appellant’s   brief   at    14-15.       He   submits   that   the

Commonwealth did not prove beyond a reasonable doubt that Appellant

“knowingly endangered the welfare of the child by violating a duty of care.”

Id.

      EWOC is a specific intent crime. In other words,

      [t]he accused must act “knowingly” to be convicted of
      endangering the welfare of a child. We have employed a three-
      prong standard to determine whether the Commonwealth’s
      evidence is sufficient to prove this intent element: 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.

Retkofsky, 860 A.2d at 1099-1100 (citations and quotations omitted).

      Appellant’s contention is without merit. At trial, Teeple testified that

Appellant was coming after her while S.T.P. “was three feet away from me

and coming towards me crying. And I went to pick him up and as I went to

go pick him up [Appellant] was right there by [S.T.P.]. [Appellant] pushed

my son into the screen door and told me to pick up my [pussy] son.” N.T.

9/9/2014, at 32. This testimony, if believed by the jury, was sufficient to

establish that Appellant knowingly put S.T.P. “in circumstances that could



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threaten the child’s physical or psychological welfare.” Retkofsky, supra.

Despite Appellant’s aforementioned arguments to the contrary, we hold the

evidence was sufficient to sustain Appellant’s EWOC conviction.

      Appellant next contends the evidence was insufficient to sustain his

conviction for harassment against S.T.P. Appellant’s Brief at 17-18.         The

statute provides, in relevant part: “A person commits the crime of

harassment when, with intent to harass, annoy or alarm another, the

person: (1) strikes, shoves, kicks or otherwise subjects the other person to

physical contact, or attempts or threatens to do the same[.]” 18 Pa.C.S.

§ 2709(a)(1).

      Specifically, Appellant contends that the Commonwealth did not prove

beyond a reasonable doubt that he had the specific intent to “harass, annoy

or alarm.” Appellant’s Brief at 18. He contends that there was an argument

between him and Teeple, which “got somewhat heated” with S.T.P., and

“[t]here was a push.” Id.

      Appellant’s act of pushing S.T.P. is sufficient to sustain his harassment

conviction. This conduct, if believed by the fact-finder, permitted “the fact

finder to infer a specific intent … [of] conduct … of a non-legitimate nature—

conduct which is not constitutionally protected.” Commonwealth v. Miller,

689 A.2d 238, 242 (Pa. Super. 1997).       Accordingly, we hold the evidence

was sufficient to sustain Appellant’s harassment conviction against S.T.P.




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      Appellant next contends that because he was acquitted of simple

assault, the verdicts for harassment and EWOC cannot stand because they

were based on the same conduct. See Appellant’s Brief at 15, 18-21.

      In addressing an issue regarding potentially inconsistent verdicts, we

are mindful of the following.

             The question before us implicates the general issue of
      inconsistent verdicts, which, under longstanding federal and
      state law, are allowed to stand so long as the evidence is
      sufficient to support the conviction. In affirming a verdict of
      aggravated assault and battery, despite the jury’s acquittal of
      the accused on a separate count of assault and battery, this
      Court reiterated that “[a]n acquittal cannot be interpreted as a
      specific finding in relation to some of the evidence.”
      Commonwealth v. Carter, 444 Pa. 405, 282 A.2d 375, 376
      (1971) (citation omitted).

Commonwealth v. Miller, 35 A.3d 1206-08 (Pa. 2012) (some internal

quotations and citations omitted).

      First, we have already determined that the evidence was sufficient to

sustain Appellant’s convictions for EWOC and harassment.          Moreover, a

review of the elements for these crimes reveals that the verdicts of the jury

and trial court were not inconsistent.

      Appellant was charged with EWOC, simple assault, and harassment

with respect to S.T.P. for allegedly pushing S.T.P. “into a storm door causing

him to strike his head on the door causing swelling above his right eye.”

N.T., 9/9/2014, at 109. The statute governing simple assault provides, in

relevant part, that “a person is guilty of assault if he: (1) attempts to cause



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or intentionally, knowingly or recklessly causes bodily injury to another[.]”

18 Pa.C.S. § 2701(a)(1).

      Clearly, simple assault requires a finding that Appellant either

attempted to cause or did cause “bodily injury.” 18 Pa.C.S. § 2701(a)(1).

Neither EWOC nor harassment requires a finding of intent to cause bodily

injury; rather, EWOC requires a finding of knowingly “violating a duty of

care, protection, or support,” while harassment requires mere “physical

contact” or threat of it. 18 Pa.C.S. §§ 4304(a)(1) and 2709(a)(1). Based on

the plain reading of these statutes, we hold that the verdicts in this case are

not inconsistent.2

      Appellant next challenges the sufficiency of the evidence to sustain his

conviction of simple assault with Teeple as the victim. Appellant’s Brief at

16-17. Appellant argues that there was “no evidence that Teeple sustained

pain” or any physical injury beyond some minor scratches. Id. at 17.



2
   See Miller, supra at 1212 (holding “second-degree murder does not
require, as an element of the crime, the completion of the predicate
offense”); Cf. Commonwealth v. Maglioccio, 883 A.2d 479 (Pa. 2005)
(holding that where Commonwealth charged Maglioccio with ethnic
intimidation by committing the offense of terroristic threats, and a jury
acquitted Magliocco of terroristic threats, the verdict of guilty for ethnic
intimidation was reversible as it was inconsistent where terroristic threats
were an element of the crime of ethnic intimidation); but see
Commonwealth v. Moore, 103 A.3d 1240, 1250-51 (Pa. 2014) (Saylor, J.
concurring) (“[A]fter Miller’s issuance, it should be reasonably clear that
Magliocco has been effectively limited to its facts.”).




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     With respect to the elements of Section 2701(a)(1), we have
     observed:

                 [T]he Commonwealth’s burden [to prove]
           simple assault is to show [that the defendant]
           attempt[ed] to cause, or intentionally, knowingly or
           recklessly cause[d] bodily injury to another. “Bodily
           injury” is defined as impairment of [a] physical
           condition or substantial pain. The Commonwealth
           need not establish that the victim actually
           suffered bodily injury; rather, it is sufficient to
           support a conviction if the Commonwealth
           establishes an attempt to inflict bodily injury. A
           person commits criminal attempt when he [or she]
           intentionally does any act which constitutes a
           substantial step toward commission of a specific
           crime. The intent for attempt may be shown by
           circumstances which reasonably suggest that a
           defendant      intended      to     cause      injury.
           Commonwealth v. Repko, 817 A.2d 549, 556 (Pa.
           Super. 2003), overruled in part on other grounds,
           Commonwealth v. Matthews, 870 A.2d 924 (Pa.
           Super. 2005) (quotation and citations omitted).

           In Repko, we determined that the evidence was sufficient
     to support a conviction under Section 2701(a)(1) where the
     evidence established that, following an argument, the defendant
     confined his fiancée in a headlock while carrying a shotgun in his
     other hand, and where the fiancée struggled to free herself from
     the headlock. Id. at 557.

Commonwealth v. Emler, 903 A.2d 1273, 1277 (Pa. Super. 2006)

(emphasis added).

     Accordingly, Appellant’s argument that the evidence was insufficient to

sustain his simple assault conviction because Teeple did not sustain bodily

injury is unavailing. The Commonwealth did not need to prove bodily injury;

rather, it needed to prove that Appellant attempted to cause bodily injury.



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Teeple’s testimony gave the jury reasonable cause to believe that Appellant

attempted to cause bodily injury to Teeple.            She testified that Appellant

“punched” her with his “fist” causing an injury to her lip. N.T., 9/9/2014, at

37. She further testified that while she was standing at the top of the stairs,

Appellant reached for her face and scratched her. Id. at 38. A jury could

infer reasonably that Appellant attempted to cause bodily injury to Teeple.

Thus, Appellant is not entitled to relief for his simple assault conviction with

Teeple as the victim.

      Appellant’s final argument is that his sentences are “harsh and

unreasonable and an abuse of discretion.” Appellant’s Brief at 21. Appellant

recognizes that this argument implicates the discretionary aspects of his

sentence. Id. at 11.      Appellant also acknowledges the following: “The

Appellant   did   not   raise    this    as      an   issue   in   his   Motion   for

Reconsideration of Sentence, but he did raise it in his concise statement of

matters complained of on appeal. He argues that this issue should not be

considered waived.” Id. at 12.

      It is well-settled that “issues challenging the discretionary aspects of

sentencing must be raised in a post-sentence motion or by raising the claim

during the sentencing proceedings.        Absent such efforts, an objection to a

discretionary aspect of a sentence is waived.” Commonwealth v. Reeves,

778 A.2d 691, 692 (Pa. Super. 2001).              Thus, we are unable to review




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Appellant’s discretionary aspects of sentencing issue despite his attempt to

preserve the claim in his concise statement.   Accordingly, Appellant is not

entitled to relief.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/7/2015




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