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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA


                    v.

LEEANN SANTIAGO

                         Appellant                   No. 2551 EDA 2015


            Appeal from the Judgment of Sentence July 31, 2015
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0000981-2012


BEFORE: BOWES, J., OTT, J., AND FORD ELLIOTT, P.J.E.

MEMORANDUM BY BOWES, J.:                                FILED MAY 23, 2017

      Leeann Santiago appeals from the judgment of sentence of five years

probation that was imposed after a jury convicted her of endangering the

welfare of a child (“EWOC”). We reject her challenge to the sufficiency of

the evidence supporting her conviction and affirm.

      Appellant and her co-defendant Jason Virgile were convicted of

endangering the welfare of Appellant’s son by a previous relationship, I.V.

At the time of the pertinent events, I.V. was living with his sister, Appellant,

and Virgile. Virgile’s two sons, who were one year old and four years old,

respectively, came twice a month to stay at the home.

      The   Commonwealth’s     proof   was   as   follows.   Aracely   Thornton,

Appellant’s mother, testified that on May 2, 2011, she was babysitting the
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then two-year-old I.V. at her home in Philadelphia. She noticed bruises on

his face between his forehead and his nose and on the front and back of his

ear.   Since the bruising “was in multiple areas,” Ms. Thornton became

alarmed. N.T. Trial, 5/26/15, at 81. She went to the police station to report

the injuries, and, when Appellant retrieved I.V., Ms. Thornton discussed the

injuries with her.   Appellant asked I.V. who inflicted the wounds, and he

responded, “Jason did it.” Id. at 105, 106. Ms. Thornton testified that I.V.

referred to Virgile as Jason and that there was no one else involved in I.V.’s

life, other than Virgile, whose name was Jason. Id. at 107.

       Appellant took I.V. to the hospital, where he was x-rayed, and she

called his biological father, Valerie V., who went to the emergency room and

observed bruises on I.V.’s head and ear area. Prior to May 2, 2011, Valerie

had never observed those types of injuries on his son’s face. Valerie asked

I.V. how he was hurt, but never received a “clear response.” Id. at 199.

       The next time that Valerie was called to the hospital for I.V. was

October 25, 2011. At that time, I.V.’s injuries were much more extensive.

I.V. had a laceration on the top of his head that required staples, “bruises on

the both sides of his head near his ears,” a “mark, like a patch on his

stomach, miscellaneous marks on his thighs, an open sore on his leg,” and

also a rib fracture. N.T. Trial, 2/27/15, at 51. I.V. again refused to tell his

father how he sustained the wounds.




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      Due to the nature of I.V.’s harm on October 25, 2011, hospital

personnel immediately suspected that I.V. was the victim of child abuse and

called police. Philadelphia Detective Manuel Gonzalez of the Special Victims

Child Abuse Unit responded.      At the hospital, Detective Gonzalez asked

Appellant what had happened, and she replied that I.V. hit a glass table with

his head.    On October 25, 2011, I.V. was removed from the care of

Appellant and Virgile and taken to Ms. Thornton’s home. On November 4,

2011, Detective Gonzalez interviewed Appellant about the matter.

      Appellant represented that I.V. hit his head on a glass table while he

was playing with his sister and Virgile’s two sons, but Appellant was unable

to explain how I.V. incurred the remainder of his wounds.       She informed

Detective Gonzalez that I.V. never came home from his day care center with

injuries and stated that she took care of her two children when they were at

home.    On November 4, 2011, Philadelphia Detective Edward Enriquez

interviewed Virgile, who indicated that he did not know how I.V. was hurt.

      Melissa Hampton, who worked in Child Protective Services at the

Philadelphia Department of Human Services, was assigned to investigate the

matter. On October 26, 2011, she went to see I.V. at Ms. Thornton’s home.

Ms. Hampton interviewed the child and asked how he had sustained his

wounds. Initially, I.V. merely shrugged. When asked about the large head

laceration, “he said mom did it.” N.T. Trial, 5/26/15, at 53.




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         Ms. Hampton next interviewed Appellant and Virgile.        Appellant

maintained that I.V. sustained the head injury by hitting “his head on the

table” in the dining room while he was playing with the three other children

and while she was cooking in the kitchen.         Id. at 55.   Appellant also

represented that his facial bruising occurred when “she was pulling a T-shirt

down over his head.” Id. at 56. She indicated that she did not know how

the leg sore was caused but said that it must have been from a fall.

Appellant maintained that the mark on his stomach was a result of the boy

scratching himself with a toy. At the time, Appellant appeared “somewhat

angry, defensive and somewhat nonchalant about the child’s injuries.” Id.

at 57.

         When Ms. Hampton discussed the matter with Virgile, he told her that

I.V. was injured while he was retrieving his children from their mother’s

home.       Virgile represented that, when he returned with his two boys,

Appellant “ran up to him to tell him or show him [I.V.’s] injury, and that he

told her to take the child to the hospital.” Id. at 59. Ms. Hampton noted

the discrepancy in Appellant’s and Virgile’s versions of events in that

Appellant said that Virgile’s two children were present when I.V. lacerated

his head while Virgile stated that the injury in question occurred while he

was retrieving his children from their mother’s home.

         On October 28, 2011, there was a hearing to determine if I.V. and his

sister should remain in protective care, and Virgile told Ms. Hampton that he

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and Appellant were the only adults with “access to [I.V.] in reference to his

injuries.” Id. at 65.

      Doctor Maria McColgan testified as an expert medical witness on behalf

of the Commonwealth.        She saw pictures taken by emergency room

physicians of the injuries that I.V. sustained on May 2, 2011.          He had

“bruises to the right side of his forehead, head, his ear, the bridge of his

nose, under his nose, . . . the side of his face, and his cheek.” Id. at 148.

Dr. McColgan testified to a reasonable degree of medical certainty that the

described wounds were “inflicted injuries and not consistent with accidental

injury.” Id. at 149.

      Dr. McColgan also reviewed the medical records from the October 25,

2011 incident and stated that I.V. had a laceration to his scalp, a healing rib

fracture, “linear scars on the back of his legs,” and bruising around the ears

on both sides of his face and the back of his head. There was no innocent

explanation for all these injuries, particularly the rib fracture. She explained

that bruising to the ear was not typical in either accidental or self-inflicted

injury and was indicative of child abuse.      Dr. McColgan concluded to a

reasonable degree of medical certainty that the multiple wounds suffered by

I.V. on October 25, 2011, was the result of physical abuse. Id. at 154.

      Based on this evidence, Appellant and Virgile were convicted of EWOC.

This appeal followed imposition of the above-described judgment of




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sentence. Appellant presents one issue for our review: “Was the evidence

insufficient to sustain the conviction for EWOC?” Appellant’s brief at 3.

      In addressing the merits of Appellant’s sufficiency challenge, we

employ this standard:

      In reviewing the sufficiency of the evidence, we must determine
      whether the evidence admitted at trial, and all reasonable
      inferences drawn from that evidence, when viewed in the light
      most favorable to the Commonwealth as verdict winner, was
      sufficient to enable the fact finder to conclude that the
      Commonwealth established all of the elements of the offense
      beyond a reasonable doubt. The Commonwealth may sustain its
      burden by means of wholly circumstantial evidence. Further, the
      trier of fact is free to believe all, part, or none of the evidence.

Commonwealth v. Sunealitis, 153 A.3d 414, 419 (Pa.Super. 2016)

(citation omitted).

      The offense of EWOC is defined, in pertinent part, as follows: "(1) A

parent, guardian or other person supervising the welfare of a child under 18

years of age . . . 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) (emphases added).       Our Supreme Court has noted that, while

the crime in question is a specific intent crime, the “EWOC statute is

necessarily drawn broadly to capture conduct that endangers the welfare of

a child.” Commonwealth v. Lynn, 114 A.3d 796, 819 (Pa. 2015). EWOC

is committed when:


       (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


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      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. at 819.

      Herein, Appellant acknowledged to Ms. Hampton that she cared for

I.V. and thus had a duty of care. The second and third elements of EWOC

are present because Appellant created the circumstances that threatened

I.V. by inflicting injuries on him on October 25, 2011. Appellant’s argument

is that the Commonwealth failed to prove how I.V.’s October 25, 2011

injuries occurred and that they could have been accidentally sustained. She

posits that the head laceration was caused when the child ran into a table.

We disagree with her position.

      I.V. was interviewed by Ms. Hampton of Child Protective Services, and

the child told her that his mother inflicted the laceration to his head. N.T.

Trial, 5/26/15, at 53.   Moreover, while Appellant claimed that the head

injury was caused when the child ran into a glass table while playing, the

factfinder was free to reject her testimony. Sunealitis, supra. It is clear

that the jury believed Dr. McColgan’s testimony that the injuries that I.V.

displayed on October 25, 2011, were not the result of an accident but from

physical abuse. Thus, Appellant’s EWOC conviction was based on sufficient

evidence since it established that she inflicted a wound to the two-year-old’s

head that required metal staples. Commonwealth v. Passarelli, 789 A.2d



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708, 716 (Pa.Super. 2001), aff'd per curiam, 825 A.2d 628 (Pa. 2003)

(holding that evidence was sufficient to support EWOC conviction where

Commonwealth presented expert witness who opined that injuries sustained

by child were intentionally inflicted and not the result of an accident).

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/23/2017




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