Com. v. Brown, E.

J-S14008-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : EVAN BROWN : : Appellant : No. 1189 MDA 2023

Appeal from the Judgment of Sentence Entered June 21, 2023 In the Court of Common Pleas of Dauphin County Criminal Division at No(s): CP-22-CR-0000356-2022

BEFORE: LAZARUS, P.J., PANELLA, P.J.E., and MURRAY, J. MEMORANDUM BY LAZARUS, P.J.: FILED: MAY 15, 2024

Evan Brown appeals from the judgment of sentence, entered in the Court of Common Pleas of Dauphin County, following his convictions of two counts of endangering welfare of children (EWOC),1 and one count each of driving under the influence – general impairment (DUI)2 and recklessly endangering another person (REAP).3 After review, we affirm on the well-written opinion authored by the Honorable William T. Tully.

We adopt the trial court’s full factual summary set forth in its opinion, see Trial Court Opinion, 11/21/23, at 2-7, but, nevertheless, provide a truncated version here. On January 5, 2022, Brown was in a heated argument ____________________________________________ 1 18 Pa.C.S.A. § 4304(a)(1). 2 75 Pa.C.S.A. § 3802(a)(1). 3 18 Pa.C.S.A. § 2705.

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with Rebecca Grady, his girlfriend. Brown was intoxicated at the time and wanted to drive their children4 to “Nan’s” house. See id. Grady repeatedly asked Brown to let her drive because Brown was intoxicated. However, Brown refused, put the children in the vehicle, and demanded that Grady get in as well.

Throughout the drive, Brown continued to argue with Grady, who, in turn, continued to warn him that his behavior was dangerous and that he was too drunk to drive, and begged him to pull over. During the drive, Brown also sideswiped trash cans, struck a utility pole, and punched Grady. Grady repeatedly warned Brown that he was endangering their children, but Brown refused to acquiesce and continued driving intoxicated and arguing with Grady.5 Brown told Grady to lie about who had been driving. See id. at 6. ____________________________________________

4Brown and Grady had a then-two-year-old daughter and a then-three- month-old son. See id. at 5.

5 Police were notified that Grady had texted a friend and that the text had prompted the friend to call the police. See id. at 2-3. As a result, Lower Swatara Township Police Officer Jordan Thomas responded and, ultimately, was provided with Grady’s phone number. See id. Officer Thomas called Grady and spoke with her regarding Brown’s behavior. See id. Grady informed Officer Thomas that she and Brown were at 905 Cumbler Street. See id.

At roughly the same time, Dauphin County Dispatch received a call reporting an intoxicated or suspicious person involved in a domestic violence incident outside of 905 Cumbler Street. See id. at 3.

Police responded to 905 Cumbler Street, where they encountered Brown, who was visibly intoxicated and belligerent. See id. at 2-4.

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Brown’s arrival at “Nan’s” house was captured on video surveillance by the Dauphin County Housing Authority. See id. at 4. The video depicted Brown pull into the parking lot, exit the driver’s seat, and retrieve a child out of the back seat. See id. at 5. The video also depicted Grady exiting the passenger seat and retrieving a child out of the back seat. See id.

Ultimately, police responded and arrested Brown. Brown was charged, inter alia, with the above-mentioned offenses.6 On March 13-14, 2023, Brown, acting pro se,7 proceeded to a jury trial, after which he was convicted of the above-mentioned offenses. The trial court deferred sentencing and ordered the preparation of a pre-sentence investigation report.

Following trial, Brown relinquished his pro se status and Attorney Bradley filed a motion for acquittal, which the trial court denied on April 27, 2023. Subsequently, on June 21, 2023, the trial court sentenced Brown to an aggregate sentence of 18 to 36 months’ imprisonment. On June 28, 2023, Brown filed a timely counseled post-sentence motion, which the trial court denied. Brown filed a timely notice of appeal and a court-ordered Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. Brown now raises the following claims for our review:

[1.] Was there insufficient evidence to establish that [] Brown acted recklessly when[,] under controlling law[,] there must be ____________________________________________

6 Brown was also charged with institutional vandalism – educational facility, see 18 Pa.C.S.A. § 3307(a)(3), but this charge was withdrawn prior to trial. 7 Prior to trial, the trial court appointed Spencer Bradley, Esquire, as Brown’s standby counsel. See Opinion and Order, 7/22/22, at 1.

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evidence of unsafe driving separate from the underlying [DUI] conduct?

[2.] Was there insufficient evidence to establish that [] Brown knowingly placed his children in harm’s way when[,] under controlling law[,] there must be evidence of unsafe driving separate from the underlying [DUI] conduct?

Brief for Appellant, at 5.

Both of Brown’s claims challenge the sufficiency of the evidence, for which we adhere to the following standard of review:

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 [re- ]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 [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. Smith, 97 A.3d 782, 790 (Pa. Super. 2014) (citation omitted).

The REAP statute provides that “[a] person commits a misdemeanor of the second degree if he recklessly engages in conduct which places or may

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place another person in danger of death or serious bodily injury.” 18 Pa.C.S.A. § 2705.

The EWOC statute provides that “[a] parent . . . 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.” Id. at § 4304(a)(1).

Importantly, we are mindful that “the commission of DUI with children in a vehicle — by itself — is inadequate to sustain convictions under either our EWOC or REAP statutes.” Commonwealth v. Delamarter, 302 A.3d 1195, 1205 (Pa. Super. 2023).

However, as the trial court aptly describes throughout its opinion, this case is not merely a DUI with children in the car. Rather, throughout the course of his DUI incident, Brown was consistently notified by Grady that his behavior was reckless and dangerous but, despite these warnings, Brown continued to argue with Grady, punched her, and continued to drive. Additionally, Brown struck several trash cans throughout the drive, as well as a utility pole, and instructed Grady to lie about who was driving the vehicle.

Mindful of the record, the applicable standard of review, the relevant caselaw, and the parties’ briefs, we affirm on the basis of the trial court’s thorough and well-reasoned opinion. See Trial Court Opinion, 11/21/23, at 1-13. Consequently, we afford Brown no relief on either of his claims. The parties are directed to attach a copy of the trial court’s opinion in the event of further proceedings.

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Judgment of sentence affirmed. Judgment Entered.

Benjamin D. Kohler, Esq. Prothonotary

Date: 5/15/2024

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Circulated 04/2502024 04/25/2024 09.56 09:56 AM

COMMONWEALTH OF PENNSYLVANIA IN THE COURT OF COMMON PLEAS :. DAUPHIN COUNTY, PENNSYLVANIA

V. DOCKET NO. 356 CR 2022 EVAN BROWN SUPERIOR COURT SUPERIOR COURT DOCKET DOCKET NO. NO. 1189 1189 MDA 2023 2023

TRIAL COURT OPINION COURT TRIAL OPINION

Brown, ("Defendant) Evan Brown, ("Defendant") appeals the judgment judgment,of of sentence imposed imposed on June 21, 2023. For

the reasons set forth, forth, the judgment should be affirmed affirmed.

RELEVANT PROCEDURAL HISTORY

On January January 24, 2022, the Commonwealth charged charged Defendant with: 2 2counts of Endangering Endangering

Welfare of Children --— Parent/Guardian/Other Commits Commits, Offense ; I;Institutional Vandalism

Educational Facility Educational Facility 2;;DUI: General Impairment/Incapable DUE General of Safe Impairment/Incapable of Safe Driving- Second Offense'; Driving- Second Offense 3;

Recklessly Recklessly Endangering Endangering Another Person Person"a

On March March 13, 13, 2023, 2023, Defendant proceeded to trial Defendant proceeded trial pro pro se, with with standby standby counsel. At the the

conclusion conclusion of of trial on March 14,, 14, 2023, 2023, aajury jury found Defendant guilty guilty on all counts. Defendant,

by counsel, filed by filed aaMotion Motion for Judgment Acquittal which the Court denied by Order filed Judgment of Acquittal filed April

27, 2023. On June 21, 27, 21, 2023, the Court sentenced Defendant at counts 11and 2 2 to t0 18-36 months

(concurrent with each other); (concurrent other); 12-24 months at count 4 4 (concurrent (concurrent with count 1), I), and 6-24

months at count 55 (concurrent with count D). 1).

On On June.28, 2023, Defendant June 28, 2023, Defendant filed filed aa,Post-Sentence Post-Sentence Motion Motion for for Judgment Judgment of of Acquittal, Acquittal, Arrest Arrest

of Judgment, of Judgment, aaMotion Motion to to Vacate and aaMotion Vacate and Motion for for Alteration of Sentence, Alteration of Sentence, to to which which the the

Commonwealth filed Answers Commonwealth Answers on on June June 30, 30, 2023. 2023. Defendant Defendant filed filed aaSupplemental Supplemental Post Post Sentence Sentence

Motion Motion on June 30, on June 30, 2023. 2023. We We denied denied Defendant's Post-Sentence Motion Defendant's Post-Sentence and Supplemental Motion and Supplemental Post- Post-

Sentence Motion Motion by by Order filed filed August 2023.. August 1, 2023.

On August On 18, 2023, August 18, 2023, Defendant Defendant filed filed a a Notice of Appeal. Notice of Appeal. Pursuant Pursuant to our Order to do to our do so,

Defendant filed aaConcise Statement of Matters Complained Complained of on Appeal September 25, Appeal on September

2023. 2023.

Commonwealth played. played the audio portion portion of the recording jury and recording of the 9-1-1 call for the jury

entered the entered transcript of the transcript of the the call call into evidence. (N.T. into evidence. (N.T. p. p. 55; Exhibits 88and 55; Exhibits and 8A 8A pp. pp. 53-56). 53-56). After After

•speaking speaking with Ms. Grady, Officer Thomas Ms. Grady, Dauphin County Thomas called Dauphin County Dispatch Dispatch to determine

they received whether they received a a call which which referenced Grady provided, referenced the address Ms. Grady provided, 905 Cumbler

Street. Street. (N.T. (N.T. p. 58). 58). Dauphin County Dispatch Dauphin County advised that they Dispatch advised they did did-receive receive aacall call which which reported reported

an intoxicated an or suspicious intoxicated or suspicious person person outside outside 905 905 Cumbler Cumbler Street. Street. Id. Suspecting a Id. Suspecting domestic a domestic

violence incident, Officer violence incident, Officer Thomas advised Steelton Police Police Officers on the scene scene to to detain

Defendant. Id. Defendant.

When Officer Thomas arrived, Defendant was shouting shouting obscenities at the officers and

demanding to demanding know why to know why he he was was being arrested. (N.T. being arrested, (N.T. p. p. 59). Police placed placed Defendant Defendant in the the back

of Officer of Officer Thomas' Thomas' vehicle vehicle-as as the officer spoke the officer spoke with with Ms. Ms. Grady. Grady. Id. Officer Officer Thomas Thomas obtained obtained

Grady's written statement. Ms. Grady's statement. (N.T. pp. 60-61). (N.T. pp. 60-61). Police took photos photos of Ms. Grady's Grady's Chrysler Chrysler

Sebring parked Sebring parked in in front Cumbler Street. (N.T. front of 905 Cumbler (N.T. pp. pp. 61-62). The The photographs photographs depict front

end damage, end damage, an an exposed exposed portion of the portion of the radiator, radiator, aadislodged dislodged passenger side mirror passenger side hanging by mirror hanging by a a

wire, aaslightly wire, slightly lifted lifted hood, and scratches hood, and and marks scratches and marks which appeared to which appeared to be be paint paint transfer. (N.T. transfer. (N.T.

pp. 61-64; Exhibits pp. 61-64; Exhibits 1-3). 1-3)

Officer Thomas Officer Thomas attempted attempted to to speak speak to Defendant. Defendant. (N.T. p. 64). (NT. p. Defendant repeatedly 64). Defendant repeatedly

questioned why questioned why he was under arrest and cursed the officer. Id. Id, Officer Thomas attempted to

explain to explain to Defendant Defendant why why he was under he was arrest; but under arrest, but Defendant Defendant persisted persisted in in his his demands and demands and

continuously interrupted. continuously interrupted. (Id., (Id.; p. 67). Defendant's, p. 67). speech was slurred and incoherent. Defendant's speech incoherent. Id. Officer

strongly of alcohol, Thomas noted that Defendant smelled strongly alcohol. (N.T. (N.T. pp. pp. 64-65). Defendant kicked

the door of the police police vehicle. vehicle. (N.T. (N.T. p. p. 68). Officer Thomas described Defendant's behavior

throughout throughout the interaction as very impairment. (N.T. p. 68; very combative and indicative of impairment, 68;. p. 71). 7I).

footage of the rear facing The Commonwealth entered footage facing camera of the mobile video recording

system evidence. (N.T. system into evidence. 9). (N.T. p. 66; Exhibit 9),

Defendant Defendant remained combative en remained combative en route route to, to, and during, the and during, the booking. booking. (Id.; p. (/d; p. 75). 75). At At the the

booking booking center, center, Defendant became agitated agitated in Officer Thomas' presence, presence, making making it impossible

for Officer Thomas to read the implied implied DL-26 warnings warnings to Defendant. '(N.T. 5 ( N.T. p. 69). 69)

Another officer read the warnings. warnings. Id. Defendant made racial slurs toward Officer Thomas and

stated that he was going going to "get "get [him] way shape [him] in some way shape or form". fomm". (N.T. p. 71; 71, p. p. 72). 72)

Defendant insisted that that he was was in the the passenger's passenger's seat, not not the driver's driver's seat although Ms. Ms. Grady

told Officer Thomas told Officer Thomas that that Defendant drove to Defendant drove to 905 905 Cumbler Cumbler Street Street then switched to then switched to the passenger the passenger

seat when they arrived. (N.T. p. they arrived. p. 72).

The Commonwealth called The Commonwealth called Derry Township Police Derry Township Police Department Officer Todd Department Officer Todd Hauser, Hauser, who who

was working working at the booking booking center that evening, evening, as a awitness. witness. (N.T. (N.T. p. p. 83). Officer Thomas had

Officer Hauser asked Officer to read Hauser to read the the DL-26 DL.-26 form regarding regarding the rights and the rights and penalties penalties for refusal refusal to to

consent to to aablood blood draw. (N.T. (N.T. p. 84). Officer Thomas testified p. 84). testified that a a refusal refusal to to consent to to the the

blood draw results blood draw results in in the the presumption of the presumption of highest level the highest of driving level of driving under under the the influence and influence and

automatic license suspension, suspension. Id. Officer Hauser read the form to Defendant verbatim. (Id., (Id.; p.

85). Defendant refused to submit to the blood draw and did not sign the form. 85). fom. (N.T. pp. 85-86) 85-86).

The Commonwealth also called Daniel Phillips, Phillips, Facility Maintenance Manager for the

Dauphin County Dauphin County Housing Housing Authority, as a Authority, as awitness. January 5, 2022, witness. On January 2022, Mr. Mr. Phillips Phillips was working was working

at an administrative building parking lot from 905 Cumbler Street. Mr. Phillips building across the parking

75 Pa.C.S.A. §$ 1547.Chemical 75Pa.CS.A. 5 1547-Chemical Testing Testing to to Determine Amount of Determine Amount of Alcohol Alcohol or Controlled Substance, or Controlled Substance, commonly referred to commonly to as the the Implied Law. implied Consent Law.

advised the responding advised the responding police officers that police officers that Housing Authority security Housing Authority security cameras would have cameras would have

captured surveillance captured surveillance footage. footage. (N.T. (N.T. pp. 91-92; Commonwealth pp. 91-92; Commonwealth Exhibit Exhibit 7). 7). Police Police obtained obtained

surveillance which depicted depicted Defendant pull pull into the parking parking lot"and lot and exit the vehicle on the

driver's side. driver's side. Id. The video Id The depicted aafemale video depicted female exit exit the vehicle from the vehicle the passenger from the passenger side and side and

remove remove aachild from from the the back back seat. seat. (N.T. (N.T p. 93). The p. 93). The Defendant then then removed removed a a child in in a a child child

house. Id. carrier and took that child into the house. Id

Jeff Enders, Director Jeff of the Director of the Dauphin Dauphin County County Department of Public Department of Public Safety Safety testified testified that the that the

Department Department received a January 5, 2022, related 905 Cumbler Street. (N.T. p. a 9-1-1 call on January p. 95).

The Commonwealth The Commonwealth admitted admitted into evidence the into evidence the transcript transcript of of the call. (N.T. the call. (N.T. p. 96; p. 96;

Commonwealth Exhibit Exhibit 17-A). 17-A)

Rebecca Grady Rebecca testified that'Defendant Grady testified that Defendant is her boyfriend is her boyfriend and and that that they they have have a a great great

relationship when relationship when he he is is not not in in jail. (N.T. p. jail. (N.T. p. 98). 98). Ms. Grady Grady stated that that she she hopes hopes to to maintain maintain her her

relationship relationship with with Defendant Defendant and have have more children with more children with him. him. Id. She and Defendant She and have two Defendant have two

children together, children together, a daughter, then a daughter, two years then two years old, old, and and a son, then a son, three or then three or four four months. months. (N.T. (N.T. p. p

98.). On January 98). January 5, 5, 2022, 2022, Ms. Grady and Ms. Grady and Defendant Defendant lived at 147 lived at 147 B B Lane in Harrisburg. Lane in Harrisburg. (N.T. (N.T. P. p.

99). 99).

Ms. Ms. Grady Grady denied that she she and and Defendant argued that Defendant argued evening, but rather, that evening, rather, characterized the the

interaction as interaction as aa "misunderstanding". "misunderstanding". (N.T. p. 100). (N.T. p. 100). The Commonwealth entered The Commonwealth entered Ms. Grady's Ms. Grady's

written statement into evidence. (N.T. into evidence. p. 101; (N.T. p. 101, Exhibit 5). 5). Ms. Grady stated that Ms. Grady that the the

misunderstanding misunderstanding arose because she believed Defendant was intoxicated. intoxicated. (N.T. p. 102; 102, N.T. pp. pp

107-108). 107-108). After After he arrived arrived at at 147 147 B B Lane, Lane, Defendant drove Ms. Defendant drove Ms. Grady Grady and their their two two children children to to

905 Cumbler Street. (Id.; pp. Street. ,(Id., pp. 107-108). Grady testified that her friend called the police but 107-108), Ms. Grady

she denied that she requested requested anyone anyone call 9-1-1. Id. Ms. Grady acknowledged speaking with

police over police over the phone phone and and in in person. person. (N.T. (N.T. pp. pp. 102-103). 102-103). When directed to When directed do so to do so by by the the

Commonwealth attorney, Grady read her written statement into evidence as follows: attorney, Ms. Grady

Ms. Ms. Grady: Grady: It says, you It says, are not you are not supposed supposed to to be be drinking, drinking, you said. You you said. You will will lie lie

and say say I'm not. Here I'm not. Here I I say say no, even even he don't care he don't care about about me or our me or our kids kids so so why why would would I I

do anything do anything to to this this point that IIsaid. point that said. And I'm taking And I'm taking the kids to the kids to Nan's Nan's house. house. And And he he

persisted to come persisted to come even even though though I said, no I said, no you're you're intoxicated. He said intoxicated. He said shut shut up and loaded up and loaded

the the kids kids in in the car. As the car. As I I got things packed, got things packed, IIwalked walked out out to the car, and the car, and he was was in in the the

driver's seat of driver's seat of the car. And the car. And I I told him to told him to get get out, out, that that he's he's not not driving. driving. He said yes He said yes and and

gave gave me the kids. me the kids. And And I say, no, I say, no, our our kids are in kids are in the car. He the car. said, you He said, you know know I can drive, I can drive,

don't play play with with me. me. I I said, Evan, you said, Evan, you know know [J [,] your kids. He your kids. He said, shut up said, shut up and get in and get in the the

car and don't car and don't do this, meaning have this, meaning someone call have someone call the the cops cops or or fighting. fighting. Me Me with with him. He him. He

then dragged dragged me out of me out of the passenger side by the passenger by my jacket and my jacket said get and said get in in the car, so the car, so I did. I did.

On the way On the way to Nan's Nan's house house I told him I told him to to pull pull over. over.

(N.T. pp. 109-110). (N.T. 109-110)

Upon Upon questioning questioning by by the Commonwealth's Commonwealth's attomey, attorney, Ms. Grady Grady acknowledged that her

reading of the written reading of written statement omitted certain statement omitted certain portions. portions. (N.T. p. p. 110). Until Until confronted confronted by by the

Commonwealth's attorney, Commonwealth's attorney, Ms. Grady denied Ms. Grady denied that that Defendant Defendant hit hit anything anything while while driving. driving. (N.T. (N.T. p. p.

111). 11). When When instructed instructed not to omit not to omit any any portions, portions, Ms. Grady read,her Ms. Grady read her written statement as written statement as follows: follows:

Ms. Ms. Grady: Grady: And And he would not. he would On the not. On the way way here. here. And then he decided And then decided to on the to on the way here way here

and he and he sideswiped sideswiped some some trash trash cans and caused cans and caused some some damage damage on on the the right side of right side of the the car. car. I I

yelled him to stop yelled at him stop the car and the car and pull pull over over and and I'm driving. He I'm driving. He then then punched punched me on the me on the

side of my side of my arm arm with with no injury or no injury or harm harm caused, caused, told told me me to shut up, up, bitch. bitch. If If you you weren't so weren't so

annoying this annoying this wouldn't wouldn't happen. happen. IIsaid said I I wasn't saying anything. wasn't saying anything. Again, Again, you're probably you're probably

6 '

drunk and drunk and shouldn't shouldn't be driving. driving. Then Then again made aastatement, again made statement, what what will it take take for for you you to to

stop and have stop and have your your kids or love kids or love yourself or why? yourself or why? After all I After all I did did for for you, you, you you keep keep outing outing

us through through this. And then we went into the parking parking lot at Nan's.

(N.T. p. (N.T. p. 111; I; Exhibit 5). Exhibit 5)

The Commonwealth The Commonwealth called called Lower Swatara Township Lower Swatara Township Police Officer Dan Police Officer Tingle as Dan Tingle as aawitness. witness.

Officer Tingle Officer Tingle responded responded to to the 9-1-1 call the 9-1-1 call at 147 B at 147 Lane on B Lane on January January 5, 2022. 2022. (N.T. (N.T. p. 95; Exhibit p. 95; Exhibit

17A; I7A; N.T. p. p. 136). Tingle assisted Officer Thomas with placing 136). Office Tingle placing Defendant in the back of

Officer Thomas' patrol patrol vehicle during investigation at the scene. during the investigation scene. (N.T. p. 137). Officer

Tingle testified as Tingle testified as to to photographs photographs he he took of Ms. took of Grady's vehicle. Ms. Grady's vehicle. (N.T. (N.T. p. p. 137). Officer Tingle 137). Officer Tingle

testified that Ms. testified that Grady stated Ms. Grady stated that that only the damage only the damage to to the the front front of of the vehicle vchicle as as depicted depicted in in the the

first photograph photograph pre-dated January 5, 2022. Id. pre-dated January photograph depicts Id. The second photograph depicts aamirror hanging

abrasions. (N.T. down and abrasions. (N.T. p. p. 139). 139). As to that damage, damage, Ms. Grady Grady stated to Officer Tingle that

while Defendant drove from from 147 147 B B Lane to Cumbler Street, Defendant trash cans Defendant struck several trash

and a and autility utility pole. pole. Id. Id.

DISCUSSION A. The A. The Commonwealth presented Commonwealth sufficient evidence presented sufficient evidence upon which the jury upon which could find jury could find Defendant guiltv Defendant of the guilty of the crime crime of of Endangering Endangering the the Welfare of Children. Welfare of Children.

Regarding Regarding aachallenge challenge to the of to the of sufficiency sufficiency of of evidence evidence our our Superior Court has Superior Court has reminded, reminded,

Our review Our of aasufficiency review of claim is sufficiency claim is well well settled: settled: [W]e evaluate the [Wle evaluate the record record in the light in the light most most favorable favorable to the verdict to the verdict winner winner giving the giving the prosecution prosecution the benefit of all reasonable inferences to be drawn from the evidence. Evidence will be deemed sufficient to support support the verdict when it establishes each material element of material element of the the crime crime charged charged and and the the commission commission thereof thereof by the accused, by the accused, beyond beyond a a reasonable doubt. Nevertheless, the Commonwealth need not establish guilt to aa mathematical certainty. Any mathematical certainty. Any doubt about about the the defendant's defendant's guilt guilt is is to to be resolved resolved by by the the fact fact

finder finder unless unless the the evidence evidence is so weak is so weak and and inconclusive inconclusive that, as aamatter that, as of law, matter of law, no no probability probability of fact can be drawn from the combined circumstances.

The Commonwealth may The Commonwealth sustain its may sustain burden by its burden means of by means of wholly circumstantial evidence. wholly circumstantial evidence. ..... Importantly, Importantly, the jury, which passes jury, which upon the passes upon weight and the weight and credibility credibility of each witness's of each witness's testimony, testimony, is free free to to believe part, or none of the believe all, part, evidence. the evidence Commonwealth v. Sebolka, 205 336-37 (Pa. 205 A.3d 329, 336-37 (Pa. Super. 2019) 2019) (citations (citations && quotation marks quotation marks omitted).

Commonwealth v.v. Delamarter, A.3d 1195, 1201 1201 (Pa. (Pa. Super. 2023).

A A person person is guilty of is guilty of the crime of the crime of Endangering the Welfare Endangering the of Children Welfare of Children ("EWOC") where: (EWOC") where:

(1) A (I) A parent, parent, guardian or other guardian or other person person supervising supervising the the welfare of aachild welfare of child under under 18 I8 years age, or of age, or aaperson person that that employs supervises such aaperson, commits an offense employs or supervises offense if he knowingly endangers the knowingly endangers welfare of the welfare of the child by the child by violating violating aaduty duty of of care, care, protection or protection or support. support.

(18 Pa.C.S.A. (I8 Pa.C.S.A. §$ 4304). 4304).

In Commonwealh In Commonwealh v. • Delamarter, 302 A.3d Delamarter, 302 A.3d 1195, 1195, 1201 1201 (Pa. (Pa. Super. 2023) the Super. 2023) the Superior Court Superior Court

explained, explained,

Section Section 4304 of the 4304 of Code provides, the Crimes Code provides, in in relevant relevant part: "A parent part: "A parent ... supervising the ... supervising the welfare of achild under 18 years welfare of a child under I8 years of age, of age, ... commits an offense if he knowingly ... commits an offense if he knowingly endangers endangers the welfare of the child by by violating violating a a duty of care, protection protection or support." 18 Pa.C.S. § 4304(a)(1). The Court Pa.C.S. $ 4304(a)(1). The Court has developed developed a three-part test for an EWOC a three-part test conviction. EWOC conviction. The Commonwealth must The Commonwealth must prove: prove;

[(] 1) [T]he [(I) accused [was] [T[he accused aware of [was] aware of his/her his/her duty duty to protect the to protect child; the child;

[(]2) [(2) [T]he accused [was] [T]he accused aware that [was] aware that the child [was] the child [was] in circumstances that in circumstances that could could.threaten threaten the child's physical the child's or or psychological physical psychological welfare; welfare; and and

[(]3) [T]he [(3) accused has [TJhe accused either failed has either to act failed to or has act or has taken action so lame taken action lame or meager meager that that such actions cannot reasonably reasonably be expected protect expected to protect the child's welfare. Bryant, Bryant, 57 57 A.3d at 197 A.3d at 197 (citations (citations omitted). WeWe further further note: note:

Endangering Endangering the welfare of a a child is aaspecific specific intent offense enacted in broad terms so as to safeguard the to safeguard the welfare security of children. To be convicted welfare and security convicted under this statute, statute, the Commonwealth must prove prove a of aaduty of a knowing violation of care.

Commonwealth Commonwealth v.v. Foster, 764 A.2d Foster, 764 A.2d 1076, 1082 (Pa. 1076, 1082 Super. 2000) (Pa. Super. 2000) (citations (citations omitted omitted and and emphasis added). emphasis added).

A knowing A knowing mens mens rea rea is is defined defined in in the Crimes Code the Crimes as follows: Code as follows:

(b) culpability defined.-- (b) Kinds of culpability

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

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

(ii) (ii) •. if the element involves aaresult of his conduct, he is aware that it is practically practically certain that his conduct will will cause such aaresult. result. 18 Pa.C.S. Pa.C.s. §$ 302(b)(2)(i)-(ii). 302(0)2)6-(i0).

Commonwealth v. Delamarter, 302 A.3d A.3d 1195,1201-02 (Pa. Super. 2023) 1195, 1201--02 (Pa. 2023)

In Delamarter, just just as in the the instant case, case, the defendant challenged challenged the sufficiency of evidence

of the mens rea element EWOC,. There, the element of the conviction of EWOC, the defendant told the the officer

responding responding to the the accident that that he was reading aatext and bumped was reading bumped into into the the guardrail guardrail on the the

passenger side passenger side of of his car. The officer his car. officer observed observed Defendant's Defendant's child child standing standing on on the the floor of the floor of the

back seat of the car, uninjured. uninjured. The defendant exhibited slow movements, sluggish, thick, and

speech, and constricted pupils. slurred speech, pupils. Id. at 1198. The officer arrested the defendant for

suspicion of DUI and the defendant refused to submit to a suspicion a blood test. The defendant asserted that

the Commonwealth failed to prove that he knowingly violated aaduty of care to his child because

the the fact that he he drove drove under under the the influence influence of aacontrolled substance is, alone, alone, insufficient to

specific intent. demonstrate specific

In affirming affirming the defendant's conviction, conviction, The Superior Superior Court in Delamarter looked to to the

Pennsylvania Supreme Court's sufficiency review in Commonwealth v. Pennsylvania Supreme • Howard,257 257 A.3d 1217

(PA 2021). (PA 2021). There, There, the Supreme Court the Supreme clarified that Court clarified that the the Commonwealth must prove Commonwealth must that the prove that the

defendant was was aware of both their duty duty of care to their child when transporting the child and that

endangered the their conduct endangered the welfare welfare of their child. Delamarter, at 1205, 1205, citing Howard, 257 257

A.3d 1225. The Delamarter Court explained: explained:

With respect respect to the latter component component of the mens rea clement, element, the defendant must be aware that aware that they they have have placed placed the the child in in aaperilous dangerous situation, but perilous or dangerous but they do do not not have have to be aware aware of the certainty certainty of aaparticular particular result such as aacar accident:

[A] person violates Section 4304(a)(1) 4304(a( if he he "knowingly endangers the welfare of the "knowingly endangers child by child by violating violating aaduty duty of care, protection of care, or support." protection or support." 18 18 Pa.C.S. Pa.C.S. §$ 4304(a)(1). 4304(a)(1). "Endanger" Endanger" is is defined, inter alia, as "to bring bring into danger danger or peril," peril," or "to create createa dangerous situation." https://www.merriam-webster.com/dictionary/endanger. dangerous https://www.merriam-webster.com/dictionary/endanger. Thus, the material element of Section 4304(a(I) 4304(a)(1) is the creation of a a perilous perilous or dangerous situation... situation... We emphasize that, We emphasize that, for purposes of for purposes of Section Section 4304, 4304, the the requirement requirement of of Section Section 302(b)(2)(i) 302(b)02(i) that that the accused be be "aware "aware that it is that it is practically practically certain that that his his conduct will cause such aaresult" does not require require that he be certain of a a particular particular harm or injury injury— for example, example, in this case, a a car accident. Again, as it pertains pertains to Section 4304, the result of the actor's the conduct is actor's conduct the creation is the creation ofof a a dangerous dangerous situation, situation, which which isis what Section what Section 4304(a)(1) seeks to 4304(a)(1) seeks to prevent prevent.

Id. Id. (emphasis in original). (emphasis original). Moreover, Moreover, "in determining determining what conduct violates the the [EWOC] [EWOC] statute, statute, `[t]he '[the common sense of the community, community, as well as the sense of decency, propriety propriety and the morality morality which most people entertain is sufficient to apply the statute to each particular case, and to individuate particular case, individuate what particular particular conduct is rendered rendered criminal by it.' it.'"" Id Id. at at 1222 1222 n.9, n.9, quoting quoting Commonwealth v. Lynn, Pa. 541, Lynn, 631 Pa. 541, 114 114 A.3d A.3d 796, 818 818 (2015). (2015)

Commonwealth v.v. Delamarter, Delamarter, 302 A.3d A.3d 1195, 1205-06 1205--06 (Pa. (Pa. Super. 2023). 2023). See See also,

Commonwealth v. Krock, 282 A.3d 1132,1137-39 1132,1137-39 (Pa. Super. 2022)("When (Pa. Super. 2022)¥When an adult is driving a a

vehicle vehicle in which a a child is is a a passenger, passenger, common sense dictates that that the driver is supervising that that

thus, has child and, thus, has a a duty duty of care towards towards those young young passengers. passengers. This is especially so so because because

the driver controls the speed and direction of the vehicle and regulates the degree of safety in

which it is operated.") operated.")

i

Applying Applying these standards to the instant case, the Commonwealth sufficiently proved that

Defendant knowingly Defendant knowingly brought brought the welfare of the welfare of his his two two young children into young children into danger danger and and knowingly knowingly

created aadangerous dangerous situation by driving under the influence. by driving influence. The jury jury was free to accept as fact

the testimony the testimony of of the responding officers, the responding officers, the 9-1-1 transcript, the 9-1-I transcript, the complete written the complete statement of written statement of

Ms. Ms. Grady, video footage footage of Defendant's combative behavior, and photographs of the damaged

vehicle. Ms. Grady's written statement that she shouted at Defendant that he should not be

driving because driving because he he was was intoxicated, and to to think of their children, well well satisfied the the mens re

element of the crime. Defendant exhibited awareness of his conduct in that he told Ms. Grady to

"shut up shut up and get in the car and don't do this, meaning meaning have someone call the cops or fighting". fighting".

certainly knew that he hit Defendant certainly hit trash cans along along the way while the way while his his children were were in in the the back back

seat.

Viewing Viewing the the evidence in in a light most favorable a light favorable to the Commonwealth as the the verdict verdict winner, winner,

the evidence sufficiently the evidence sufficiently satisfied satisfied the elements of the elements of EWOC. EWOC.

B. The Commonwealth B. Commonwealth presented sufficient evidence presented sufficient evidence upon upon which which the the jury jury could could find find Defendant Defendant guilty of guilty of the of crime of Recklessly the crime Recklessly Endangering Another Person. Endangering Another Peron

Defendant next argues that the Commonwealth failed to present evidence sufficient to

establish the elements for Recklessly Recklessly Endangering Endangering Another Person Person ("REAP"). (REAP"). 6 REAP occurs

when when a a person "recklessly engages person "recklessly engages in conduct which places places or may may place place another person in

Pa.C.S.A. §$ 2705. danger of death or serious bodily injury." 18 Pa.CS.A. danger

We need We 6 need not not restate the standard restate the standard of of review applicable to review applicable to aachallenge challenge to to the of evidence. the sufficiency of evidence.

1n In Commonwealth v. Mastromatteo 719 719 A. A. 2d 2d 1081 (Pa.Super. (Pa.Super. 19'98), 1998), the Superior Court the Superior Court

explained: explained: "[Djriving "[Driving under the influence under the influence of of intoxicating intoxicating substances substances does not not create create legal legal

recklessness per se but but must must be accompanied with other tangible be accompanied tangible.indicia indicia of of unsafe driving driving to aa

degree degree that creates aasubstantial that creates substantial risk of injury risk of injury which which is consciously consciously disregarded." disregarded." Mastromatteo, Mastromatteo,

719 7I9 A.2d A.2d at at 1083, 1083, citing Com. v. Sullivan, citing Com, 2004 PA Sullivan, 2004 Super 481,$ PA Super 481, 112, 12, 864 864 A.2d. A.2d 1246, 1246, 1250 1250

(2004). Further, (2004).

[T]he mens rea necessary [TJhe support the offense of reckless driving is a necessary to support a requirement that [Defendant] drove in such amanner that [Defendant] drove in such a manner that there existed asubstantial risk that existed a substantial risk that injury injury would would result from his driving, driving, i.e., a a high probability that aamotor vehicle accident would result high probability driving from driving in that manner, manner, that he was aware of that risk and yet continued to drive in such such aa manner, in in essence, callously disregarding essence, callously disregarding the the risk he was risk he was creating creating by by his own his own reckless driving. reckless driving. Commonwealth v. v. Greenberg, Greenberg, 885 885 A.2d A.2d 1.025, 1025, 1027-28 1027--28 (Pa.Super. 2005) (quoting (Pa.Super. 2005) (quoting Bullick, Bullick, 830 830 A.2d at 1003) 1003) (emphasis (emphasis added).

Here, the Commonwealth Commonwealth presented evidence of presented evidence of tangible tangible indicia indicia of of Defendant's Defendant's reckless and and

unsafe driving driving to aadegree which endangered another degree which another person. person. ' Over the the pleas pleas of Ms. Ms. Grady to to

pull over, Defendant drove in pull over, in a amanner that caused him to crash into objects off the roadway,

damaging the damaging the vehicle. vehicle. Within Within moments of Defendant's moments of exiting the Defendant's.exiting vehicle, police the vehicle, observed his police observed his

jury to infer that Defendant drove combative and irrational behavior. Such facts allowed the jury

We 7 We recognize recognize that "the EWOC and REAP are not aligned from an clements that the elements standpoint. standpoint. ... A conviction . .A for reckless endangerment endangerment requires requires proof proof of conduct that places or or may place another person in danger of death or serious bodily injury, injury, while aaconviction for endangering the welfare of children only requires proof could threaten the child's physical or psychological welfare. Thus, proof of circumstances that could Thus, reckless endangerment requires endangerment requires proof proof of aafact that endangering the welfare of children does not. In other words, the element the element of of conduct conduct which which places places or or may may place place aaperson person in in danger of of death or or serious bodily bodily injury injury is is not subsumed within proof proof that aachild is is placed in circumstances that could threaten the child." placed in

Commonwealth v. Martir, 712 A.2d 327, 327,329-30 ( Pa. Super. 1998). 329-30 (Pa. Commonwealth v. Delamarter, 2023 2023 PA PA Super Super 161, 302 A.3d 161, 302 A.3d 1195, 1205 (2023) 195, 1205 (2023)

recklessly recklessly and consciously consciously disregarded disregarded that substantial risk that injury to his family would result

from his driving. See, Greenberg, 885 A.2d at 1027 1027.

CONCLUSION

For these reasons, the judgment judgment of sentence should be affirmed. affirmed

BY THE COURT COURT:

} wiirrour WILLIAM T. TULLY JUDGE

November November -7-( -f .52023

I n

ow« Ill')@1Hae Distribution: J jj•, 3 l' o:0 0iI

ti Court yVl A, The Superior Court

T. Tully / Chambers of The Honorable William T.

Spencer 10 Spencer H.C. Bradley, Esq., Dauphin County Public Defender's Office Z

Dauphin County District Attorney's Office Zp Dauphin 10

Footnotes

[18] Pa.C.S.A. 'I8 1 Pa.CS.A. §$4304 4304 48Al §§ Al 2 18 Pa.C.S.A. § 3307 §§. 18PCS.A. 4$3307 A3 (withdrawn) 8$43 (withdrawn) 1 75 Pa.C.S.A 75 Pa.CS.A §$3802 3802 §§ Al $$ A1 18 Pa. C.S.A.§ 2705 I8PA.CS.A.$ 4 11 5813 .r ' 5-/3 FACTS FACTS The facts, The facts, viewed viewed in in a light most a light most favorable to the favorable to the Commonwealth Commonwealth as as the the verdict winner, are as winner, are as follows: follows On January On January 5, 2022, at approximately 2022, at approximately 5:49 p.m., Lower Swatara p.m., Lower Swatara Township Township Police Police Officer Officer Jordan Thomas Jordan Thomas received received a 9-1-1 dispatch a 9-1-1 dispatch to to 147 B Lane

[147] B Lane and and responded responded to to that address. address. (Transcript of (Transcript of Proceedings, "N.T.", p. Proceedings, "N.T", 51). The caller was p. 51). was not not at that that address. Id. Although Although the the lights lights were were on, on, no no one one answered the door. answered the door. (N.T. (N.T, p. 52). Officer p. 52). Officer Thomas Thomas contacted contacted the original original caller to gather caller gather more more information. That caller information. Id. That caller stated stated that that Rebecca Grady texted Rebecca Grady texted her. her. Id. Officer Thomas Officer Thomas located located a a known number for known number Rebecca Grady for Rebecca Grady and and reached reached her by phone. her by phone. Id. Id. Ms. Grady's Officer Thomas described Ms. Grady's demeanor upon answering the upon answering phone as the phone as frantic, frantic, emotionally heightened, emotionally heightened, upset, and almost upset, and almost terrified. terrified. Id. The The officer officer's mobile video 's mobile video recording recording system recorded system and saved recorded and saved the the call call upon the officer's upon the officer's activation activation of lights and of lights and siren. siren. (N.T. (N.T. p. 53). p. 53). Video Video footage captured by footage captured by the mobile video the mobile video recording system depicted recording system Officer Thomas, depicted Officer accompanied by accompanied another by anot officer, in her officer, front of in front of their their police police vehicle at 147 vehicle at 147 B B Lane. Lane. (N.T. p. 54). (N.T. p. 54). The The