J-A17029-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    RAEVIN HODGES                              :
                                               :
                       Appellant               :   No. 1058 WDA 2017

             Appeal from the Judgment of Sentence June 21, 2017
     In the Court of Common Pleas of Allegheny County Criminal Division at
                       No(s): CP-02-CR-0013581-2016


BEFORE: OTT, J., KUNSELMAN, J., and MUSMANNO, J.

MEMORANDUM BY KUNSELMAN, J.:                           FILED AUGUST 21, 2018

        Raevin Hodges appeals from the judgment of sentence entered after a

stipulated nonjury trial, where she was convicted of one count of endangering

the welfare of children.1 After careful review, we reverse.

        The trial court summarized the facts of this case as follows:

               In the mid-afternoon of October 10, 2016, [Hodges] was
           responsible for babysitting John Doe, age three, at the
           apartment of Doe’s parents while Doe’s parents went to the
           store. The apartment was on the second floor of a building
           across from Westinghouse High School, in the City of
           Pittsburgh. At the time, the school day had ended and
           students were exiting the building with school buses arriving
           and leaving the area. The three-year-old child, drawn by
           the noise of the exiting students and buses, exited the
           apartment onto a balcony. The balcony was approximately
           ten to fifteen feet [above] the ground level and was in an
           obviously poor and dangerous condition.         Rungs were
           missing from the front railing of the balcony, leaving gaps

____________________________________________


1   18 Pa.C.S.A. §4304(a)(1)
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         through which a child could easily fall. For several minutes
         the child remained on the balcony, at times putting his head
         through the rungs. [Hodges] did not stop the child from
         going on the balcony, monitor the child, or remove him from
         the balcony even when the child placed his head through
         the rungs. Instead, [Hodges] was completely immersed
         with her cell phone and was not paying attention to the
         child. As a result, the child fell through the missing rungs
         of the balcony to the concrete below. The child was rushed
         to Children’s Hospital. Several witnesses observed the fall,
         and it was captured on video surveillance. Consequently,
         [Hodges] was charged as noted hereinabove.

Trial Court Opinion, 11/8/2017, 3-4 (citations and footnote omitted).

      Following her conviction, the court sentenced Hodges to three years’

probation. This timely appeal followed. Both Hodges and the trial court have

complied with Pa.R.A.P. 1925.

      Hodges raises only one issue on appeal:

         1. Whether Ms. Hodges’ conviction for Endangering Welfare
            of Children must be reversed, and her judgment of
            sentence must be vacated, when the Commonwealth
            failed to prove, beyond a reasonable doubt, that she
            acted with the requisite mens rea – i.e., that Ms. Hodges
            “knowingly” endangered the welfare of the minor child by
            violating a duty of care?

Hodges’ Brief at 4.

      Our standard of review when reviewing a sufficiency of the evidence

claim is well established:

         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

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         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. Brown, 23 A.3d 544, 556-60 (Pa. Super. 2011) (En

banc) (internal quotations and citations omitted). Hodges does not dispute

the factual findings of the trial court, and our independent review of the record

also supports these findings. Thus, we must next determine whether the trial

court’s legal conclusions are correct.

      In relevant part, the Endangering Welfare of Children (EWOC) statute

provides that “[a] person, 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)(2) of the crimes code provides:

         (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




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         (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)(2).

      In order to support a conviction under EWOC, the Commonwealth must

demonstrate the tripartite test of Commonwealth v. Cardwell, 515 A.2d

311, 315 (Pa. Super. 1986):

         (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.

Id.   See also Commonwealth v. Wallace, 817 A.2d 485, 490-91 (Pa.

Super. 2002)

      Our Court has explained that "statutes pertaining to juveniles such as

this one are basically protective in nature and thus are necessarily drawn to

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

of our children. Whether particular conduct falls within the purview of the

statute is to be determined within the context of the common sense of the

community." Commonwealth v. Retkofsky, 860 A.2d 1098, 1099 (Pa.

Super. 2004) (citations and internal quotations omitted).

      The trail court reasoned that:

            There was an open and notorious danger that [Hodges]
         was aware of by her repeated visits to this household and
         as confirmed by the pictures submitted on behalf of the
         Commonwealth. The danger was not unknown to [Hodges].
         [Hodges] assumed supervision of this child voluntarily and,

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         thus, is responsible for the three-year-old’s welfare and
         supervision under the circumstances such as they existed.
         Again, by [Hodges’] own admission, the three-year-old kept
         coming onto the porch and she failed to take measures to
         keep the child housed inside despite that open [and]
         notorious danger that lead [sic] to [the child’s] fall. So the
         Court finds in this instance that the child was repeatedly
         drawn to the same activity that the defendant acknowledged
         brought her onto the porch, that is the school being
         discharged with buses, and that activity was one that would
         expect a three-year-old to be drawn to. In this instance,
         [Hodges] chose to pursue her own interest, being on a cell
         phone and a direct admission of [watching] students leaving
         the school rather than protecting the child in the face of that
         known notorious danger.

            As such, the Trial Court found that [Hodges] knowingly
         violated her duty of care when she chose not to make any
         meaningful efforts to keep the child off of the balcony, but
         instead allowed him onto the balcony, and pursued her own
         social interests rather than the necessary supervision of the
         three-year-old child for which she was responsible. This
         evidence is sufficient to sustain [Hodges’] conviction of
         endangering the welfare of children.

Trial Court Opinion, 11/8/2017, 6-7. We disagree with the trial court’s legal

conclusions.

      In arguing to the contrary, Hodges points to multiples cases where this

Court found that sufficient evidence existed demonstrating the appellants

knowingly endangered the welfare of children. See Commonwealth v. Ogin,

540 A.2d 549 (Pa. Super 1988) (en banc) (upholding EWOC conviction where

parents flung child against wall, struck her, and burned her with food, despite

the daughter not sustaining serious injury); Commonwealth v. Taylor, 471

A.2d 1228 (Pa. Super. 1984) (finding appellant was criminally culpable when

he violated duty of care by sexually assaulting his daughter and her friend);


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Commonwealth v. Retofsky, 860 A.2d 1098 (Pa. Super. 2004) (upholding

EWOC conviction where father fled from police on an ATV at high speed with

his son clinging to his back); Commonwealth v. Mackert 781 A.2d 178 (Pa.

Super. 2001) (holding sufficient evidence existed to sustain EWOC conviction

where appellant’s children were unreasonably dirty and had numerous inflicted

injuries). Hodges argues that in these other cases, “the various appellants’

conduct was inherently extreme, depraved, and contrary to the accepted

rules of morality.” Hodges’ Brief at 18. She claims the facts of this case are

significantly different.

      In analogizing her case, Hodges primarily relies on this Court’s decision

in Commonwealth v. Miller, 600 A.2d 988 (Pa. Super. 1992), where it held

the Commonwealth failed to prove the appellant had knowingly endangered

her child. In that case, the child’s father informed the appellant-mother that

the neighbor would babysit the child for the evening.           Based on that

information, the appellant-mother left the child at the home sleeping next to

a space heater. However, unbeknownst the appellant-mother, the father had

not secured a babysitter. The child died that evening when the space heater

caused a fire. Reversing the appellant-mother’s EWOC conviction, this Court

found that insufficient evidence existed to satisfy the Cardwell tripartite test.

This Court reasoned that although the appellant-mother was aware of her duty

to protect the child, she was unaware she had placed the child in danger, and

that her failure to confirm the babysitting arrangements was not unreasonable

under Cardwell. Id. at 991.

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      Here, as in Miller, we find the facts of Hodges’ case do not demonstrate

that she knowingly endangered the welfare of the child. The Commonwealth

asserts that Hodges’ knew the child was in circumstances that could threaten

his physical well-being because “she was aware of the poor condition of the

porch railing which had several missing rungs, as well as the fact that the

porch sat 10 to 15 feet above a concrete surface.” Commonwealth’s Brief at

12-13. Further, Hodges informed the police that “while babysitting, the child

repeatedly tried to go onto the porch but she pushed him back inside.” Id. at

13.

      As part of our review of the record, we observed photographs of the

porch at issue.   While the photographs indeed depict a porch in less than

sterling condition, we do not find it so dilapidated or inherently dangerous that

the risk of physical injury would be readily apparent. Only a single rung was

missing on the porch. Additionally, at the time of the incident, the area with

the missing rung had three filled garbage bags and a box piled in front it,

which made the gap even less of an obvious risk.             In particular, the

Commonwealth presented no evidence to suggest Hodges knew the child could

fit through the missing rungs.    Hodges did not divert her attention to her

phone with the knowledge that in doing so the child’s physical well-being

would be in jeopardy.

      We acknowledge that in the course of parenting or supervising a small

child, one need only cease supervision momentarily for a disastrous incident

to occur. As the Miller court so aptly stated,

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         [u]tilizing a common sense of the community approach to
         interpret the specific intent element of the statute, we find
         an implicit recognition that parents at times can make
         mistakes in judgment and that their children may be harmed
         as a result. However, for such mistakes to rise to the level
         of criminal culpability, parents must knowingly allow their
         children to be at risk with awareness of the potential
         consequences of their actions or of their failure to act.

Id. at 992.   This awareness of the risk applies equally to babysitters and

others in charge of a child’s well being.

      Here, we find the facts indicate that, at most, a terrible accident

occurred rather than an intended crime. A distinction must be drawn between

negligent behavior and criminal conduct. Approaching Hodges’ case from the

common sense of the community standard, we determine that this was merely

a mistake in judgment that arguably involved negligence. However, a showing

of negligence is insufficient to support a finding of guilt under § 4304. Miller,

supra. We do not consider the circumstances in Hodges’ case the type of

scenario that the legislature aims to criminalize through the EWOC statute.

      As such, our review of the record and pertinent case law supports the

conclusion that Hodges did not knowingly endanger the welfare of the child,

and therefore the evidence is insufficient to uphold her conviction.

      Judgment of sentence reversed. Hodges discharged.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/21/2018




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