J-S81020-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                          IN THE SUPERIOR COURT OF
                                                            PENNSYLVANIA
                            Appellee

                       v.

BOBBY YOUNG

                            Appellant                     No. 2556 EDA 2015


               Appeal from the Judgment of Sentence July 28, 2015
                In the Court of Common Pleas of Delaware County
               Criminal Division at No(s): CP-23-CR-0004642-2014


BEFORE: BOWES, J., MOULTON, J., and STEVENS, P.J.E.*

MEMORANDUM BY MOULTON, J.:                             FILED JANUARY 19, 2017

       Bobby Young appeals from the July 28, 2015 judgment of sentence

entered in the Delaware County Court of Common Pleas following his

convictions after a bench trial for recklessly endangering another person and

endangering the welfare of children.1 We affirm.

       The well-reasoned opinion of the Honorable Gregory H. Mallon set

forth a detailed factual and procedural history underlying this appeal, which

we adopt and incorporate herein.               See Trial Ct. Op., 3/2/16, at 1-10

(“1925(a) Op.”).

       Young raises the following issues on appeal:

____________________________________________


       *
           Former Justice specially assigned to the Superior Court.
       1
           18 Pa.C.S. §§ 2705 and 4304(a)(1), respectively.
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         1. WHETHER THE COURT ERRED IN DENYING THE DEFENSE
            MOTIONS FOR ARREST OF JUDGMENT RAISED ORALLY AT
            SENTENCING SINCE THE VERDICTS OF GUILTY ON THE
            CHARGES OF RECKLESSLY ENDANGERING ANOTHER
            PERSON AND ENDANGERING THE WELFARE OF CHILDREN
            WERE AGAINST THE WEIGHT OF EVIDENCE THAT TENDED
            TO SHOW THAT MR. YOUNG WAS NOT NEGLIGENT IN THE
            MANNER IN WHICH HE SOUGHT MEDICAL TREATMENT
            FOR THE INFANT VICTIM.

         2. WHETHER THE EVIDENCE WAS INSUFFICIENT TO
            ESTABLISH GUILT BEYOND REASONABLE DOUBT ON
            EITHER CHARGE SINCE THE COMMONWEALTH FAILED TO
            ESTABLISH ALL THE ELEMENTS OF RECKLESSLY
            ENDANGERING ANOTHER PERSON AND ENDANGERING
            THE WELFARE OF CHILDREN, SPECIFICALLY WHERE THE
            RECORD WHOLLY REFUTES ANY CONCLUSION THAT MR.
            YOUNG KNOWINGLY, INTENTIONALLY OR RECKLESSLY
            FAILED TO SEEK PROPER MEDICAL TREATMENT FOR THE
            INFANT VICTIM.

         3. WHETHER THE SENTENCING SCHEME IMPOSED IS
            ILLEGAL   WHERE  THE   CHARGE   OF  RECKLESSLY
            ENDANGERING ANOTHER PERSON AND ENDANGERING
            THE WELFARE OF CHILDREN SHOULD HAVE MERGED FOR
            SENTENCING PURPOSES UNDER THE CIRCUMSTANCES OF
            THIS CASE.

Young’s Br. at 7-8.

         Young first argues that the trial court erred by not granting him an

arrest     of   judgment   because   the   weight   of   the   evidence   “slanted

overwhelmingly in favor of acquittal on all counts.” Id. at 23. According to

Young, the record shows that the victim went into distress while in the care

of Taniesha Smith (“Mother”) and Young “show[ed] his propensity for

wanting to do the right thing” by scheduling an appointment with the doctor.

Id. at 20-21. Young’s weight claim is based in large part on two contentions

about the trial.     First, he argues that while the charges in the criminal

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information and the prosecution’s asserted theory of the case were based on

the allegation that Young caused violent harm to the child on or about

December 14, 2013, the trial court found Young guilty on a different theory

– that Young failed in his obligation to seek medical care for the victim

despite evidence of the victim’s serious injuries and failure to thrive over the

course of months.         Id. at 21-22.2       Second, Young complains that with

respect to both the charges in the information and the prosecution’s

principal theory of the case – that the victim suffered an acute injury on or

about December 14 – the evidence at trial strongly suggested that it was

Mother rather than Father who was at fault. Id. at 22-23.
____________________________________________


       2
        In his brief, Young argues that a “miscarriage of justice” occurred
because the allegations in the criminal information and the Commonwealth’s
opening remarks at trial focused on an “acute traumatic injury on or about
the weekend of December 14th/15th, 2013.” Young’s Br. at 21-22. The
Commonwealth responds that Young waived this argument by failing to raise
it before the trial court or in his Pennsylvania Rule of Appellate Procedure
1925(b) statement.        Cmwlth.’s Br. at 15.        We agree with the
Commonwealth.

      While we understand that Young may not have known before trial that
the Commonwealth would introduce the malnourishment and “failure to
thrive” evidence, Young did not object to this evidence when presented by
the Commonwealth, move for relief based on the Commonwealth’s alleged
deviation from the criminal information, or include this issue in his Rule 1925
Statement. Indeed, Young’s counsel devoted a substantial portion of this
closing statement to arguing that the Commonwealth had failed to prove
facts sufficient to support this theory of the case. N.T. Closing, 5/1/15, at
17-19, 23-27. Therefore, Young has waived this issue. See Pa.R.A.P.
1925(b)(4)(vii); Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998)
(“Any issues not raised in a Pa.R.A.P. 1925(b) statement will be deemed
waived.”).




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       Preliminarily, we must determine whether Young preserved his weight

of the evidence claim for review, as Young’s motion for arrest of judgment

before sentencing was a motion for extraordinary relief pursuant to

Pennsylvania Rule of Criminal Procedure 704.3        The comment to Rule 704

specifically states that “the making of a motion for extraordinary relief does

not, of itself, preserve any issue raised in the motion, nor does the judge’s

denial of the motion preserve any issue.” Pa.R.Crim.P. 704, cmt. This Court

has held that motions for extraordinary relief are not “a ‘substitute vehicle’

for raising a matter that should be raised in a post-sentence motion.”

Commonwealth v. Grohowski, 980 A.2d 113, 115-16 (Pa.Super. 2009).

       We conclude that Young waived his weight of the evidence claim.

Pennsylvania Rule of Criminal Procedure 607 sets forth the requirements for

preserving a weight of the evidence challenge:

           (A) A claim that the verdict was against the weight of the
           evidence shall be raised with the trial judge in a motion for
           a new trial:

              (1) orally, on the record, at any time before sentencing;

              (2) by written motion at any time before sentencing; or

____________________________________________


       3
        In its opinion, the trial court notes that Young’s oral motion for arrest
of judgment appeared to combine a motion for an arrest of judgment based
upon sufficiency of the evidence and a motion for a new trial based upon the
weight of the evidence under Pennsylvania Rules of Criminal Procedure 606
and 607. See 1925(a) Op. at 11. The record shows, however, that Young
orally moved for extraordinary relief – in the form of an arrest of judgment –
pursuant to Pennsylvania Rule of Criminal Procedure 704(b).                  N.T.
Sentencing, 7/28/15, at 13.



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              (3) in a post-sentence motion.

Pa. R. Crim. P. 607(A).        Here, the record shows that Young did not file a

written motion, before or after sentencing, challenging the weight of the

evidence.      Further, Young’s oral motion for extraordinary relief did not

challenge the weight of the evidence.4 Had Young wanted to challenge the

weight of the evidence, he could and should have done so through a

separate oral motion at sentencing or by written motion either before or

after sentencing. In these circumstances, we conclude that Young did not

preserve his weight of the evidence challenge and therefore waived this

claim.5

____________________________________________


       4
        Rather, in support of the motion, Young introduced new evidence.
These new facts could not be considered when determining whether the
verdict was against the weight of the evidence.

       The trial court also considered the motion in terms of sufficiency of the
evidence, rather than the weight of the evidence. The trial court explained
its reasoning for denying the motion:

            I’m denying your Motion for Extraordinary Relief based on,
            you know, the reasons I’ve said, that the records are
            replete with evidence that this child was -- there was a
            breach of a duty of care and on the Recklessly
            Endangering [Another Person] there was reckless,
            sufficient reckless[ness] displayed on the part of [Young.]
            He understands I’m not putting the blame on him for an
            intentional injury. I found him not guilty of that one.
            There was not enough evidence.

N.T. Sentencing, 7/28/15, at 30.
       5
           Even had the trial court addressed Young’s weight of the evidence
claim,     which it did not, Young’s waiver would still stand.           See
(Footnote Continued Next Page)


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      Young next argues that the Commonwealth presented insufficient

evidence to convict him. Young once again contends that the victim was not

in his care when the injuries manifested and “[t]here is not a scintilla of

proof from any witness or from the medical records that would allow any fact

finder to reasonably conclude that [Young] abused his child during the time

frame at issue.” Young’s Br. at 26-27.

      This Court’s standard for reviewing sufficiency of the evidence claims is

as follows:

          We must determine whether the evidence admitted at trial,
          and all reasonable inferences drawn therefrom, when
          viewed in a light most favorable to the Commonwealth as
          verdict winner, support the conviction beyond a reasonable
          doubt. Where there is sufficient evidence to enable the
          trier of fact to find every element of the crime has been
          established beyond a reasonable doubt, the sufficiency of
          the evidence claim must fail.

          The evidence established at trial need not preclude every
          possibility of innocence and the fact-finder is free to
          believe all, part, or none of the evidence presented. It is
          not within the province of this Court to re-weigh the
          evidence and substitute our judgment for that of the fact-
          finder.    The Commonwealth’s burden may be met by
          wholly circumstantial evidence and any doubt about the
          defendant's guilt is to be resolved by the fact[-]finder
          unless the evidence is so weak and inconclusive that, as a
          matter of law, no probability of fact can be drawn from the
          combined circumstances.


                       _______________________
(Footnote Continued)

Commonwealth v. Lofton, 57 A.3d 1270, 1273 (Pa.Super. 2012) (“Failure
to properly preserve [a weight of the evidence] claim will result in waiver,
even if the trial court addresses the issue in its opinion.”)



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Commonwealth v. Rodriguez, 141 A.3d 523, 525 (Pa.Super. 2016)

(quoting Commonwealth v. Tarrach, 42 A.3d 342, 345 (Pa.Super. 2012)).

      In its opinion, the trial court set forth the relevant elements of the

offenses, addressed Young’s claims, and properly determined that the

evidence was sufficient to maintain the convictions. See 1925(a) Op. at 13-

19.   The evidence presented by the Commonwealth showed failures by

Young, over a period of months, to take any action with respect to the

victim’s welfare and that these failures recklessly subjected the victim to

serious bodily injury.   After reviewing the briefs, the record, and the trial

court’s opinion, we affirm based on the trial court’s reasoning. See id.

      Finally, Young argues that his convictions should have merged for

sentencing purposes.      According to Young, the trial court’s citation of

Commonwealth v. Martir, 712 A.2d 327 (Pa.Super. 1998), was misguided

because the appellant in Martir committed each crime by separate acts,

whereas here “the elements of recklessly endangering another person are

completely subsumed within the duty requirement of [endangering welfare

of children].”   Young’s Br. at 33.   Young asks this Court to reconsider its

decision in Martir and “find that merger was proper under the facts

presented in this appeal.” Id. Merger is a pure question of law over which

we exercise plenary review. Commonwealth v. Pettersen, 49 A.3d 903,

911 (Pa.Super. 2012).

      We conclude that Martir is controlling and affirm the trial court. In its

opinion, the trial court aptly cited Martir for the proposition that

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endangering the welfare of children is neither a lesser-included offense nor a

greater-included offense of recklessly endangering another person. 1925(a)

Op. at 20-21 (citing Martir, 712 A.2d at 329-30). While Martir was decided

before our legislature enacted the statutory merger analysis under 42

Pa.C.S. § 9765,6 the decision analyzed the statutory elements of each

offense as required by the test that section 9765 later codified:

               Appellant’s argument must fail because every element
           of endangering the welfare of children is not subsumed in
           the elements of reckless endangerment. First, and most
           importantly, a conviction for endangering the welfare of
           children requires proof that the accused acted “knowingly,”
           i.e., that the accused not only knew that he has a duty to
           protect the child but also knew that the child was placed in
____________________________________________


       6
        Section 9765 provides that “[n]o crimes shall merge for sentencing
purposes unless the crimes arise from a single criminal act and all of the
statutory elements of one offense are included in the statutory elements of
the other offense. Where crimes merge for sentencing purposes, the court
may sentence the defendant only on the higher graded offense.” 42 Pa.C.S.
§ 9765. Under section 9765, courts must:

           determine whether offenses are greater and lesser-
           included offenses [by] compar[ing] the elements of the
           offenses. If the elements of the lesser offense are all
           included within the elements of the greater offense and the
           greater offense has at least one additional element, which
           is different, then the sentences merge. If both crimes
           require proof of at least one element that the other does
           not, then the sentences do not merge.

Commonwealth v. Nero, 58 A.3d 802, 806 (Pa.Super. 2012) (internal
citations omitted); see also Commonwealth v. Baldwin, 985 A.2d 803,
835 (Pa. 2009) (finding that statutory-element test of section 9765 “focuses
solely on the elements of the offenses for which a criminal defendant has
been convicted”).



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       circumstances that could threaten the child's welfare. A
       conviction for reckless endangerment obviously requires
       proof that the accused acted only recklessly. Thus, a
       person could never be convicted of endangering the
       welfare of a child based upon reckless conduct alone.

                               *    *    *

          Second, a conviction for endangering the welfare of a
       child requires proof that the accused is aware of his or her
       duty to protect the child. Reckless endangerment does not
       require the Commonwealth to prove that the accused has
       any special duty to protect his victim from harm. Once
       again, a conviction for the crime of endangering the
       welfare of a child requires proof of an element, which is
       not    subsumed     within   any    element   of    reckless
       endangerment.

          Third, endangering the welfare of a child requires proof
       that the victim is “a child under the age of 18 years of
       age.” 18 Pa.C.S.A. § 4304. Reckless endangerment does
       not require proof of the victim's age.

                               *    *    *

           Even if we were to consider endangering the welfare of
       children as the greater-included offense, it is obvious that
       the crimes do not merge.        A conviction for reckless
       endangerment requires proof of conduct that places or
       may place another person in danger of death or serious
       bodily injury, while a conviction for endangering the
       welfare of children only requires proof of circumstances
       that could threaten the child's physical or psychological
       welfare. Thus, reckless endangerment requires proof of a
       fact that endangering the welfare of children does not. In
       other words, the element of conduct which places or may
       place a person in danger of death or serious bodily injury
       is not subsumed within proof that a child is placed in
       circumstance that could threaten the child. Thus, reckless
       endangerment is not a lesser-included offense of
       endangering the welfare of children, and the crimes do not
       merge.




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Martir, 712 A.2d at 329-30 (emphasis in original) (some internal citations

and quotations omitted). We conclude that this analysis is just as apt after

section 9765’s adoption as it was under the pre-section 9765 rubric.7

       Further, Young’s argument that Martir is distinguishable because the

appellant in Martir committed two separate criminal acts is unavailing.

Even if Young’s conduct could be considered one criminal act for the

purposes of section 9765, Martir focused on the elements of the crimes in

question and did not address the single-criminal-act requirement of merger.

Our decision in Martir did not turn on the facts of that case.

       Judgment of sentence affirmed.




____________________________________________


       7
        “[B]oth this Court and the Pennsylvania Supreme Court historically
have struggled to articulate and apply the proper test for merger claims.”
Commonwealth v. Raven, 97 A.3d 1244, 1249-50 (Pa.Super.), app.
denied, 105 A.3d 736 (Pa. 2014) (describing history of merger tests in
Pennsylvania). However, despite the changes in merger analysis, all merger
tests (before and after section 9765) have included a comparison of the
statutory elements in the greater- and lesser-included offenses. See, e.g.,
Commonwealth v. Anderson, 650 A.2d 20, 24 (Pa. 1994) (“Our inquiry . .
. is whether the elements of the lesser crime are all included within the
elements of the greater crime, and the greater offense includes at least one
additional element which is different, in which case the sentences merge, or
whether both crimes require proof of at least one element which the other
does not, in which case the sentences do not merge.”).



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/19/2017




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