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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37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.
J-S14008-24
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-threemonth -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.
3
J-S14008-24
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.
4
J-S14008-24
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
5
J-S14008-24
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.
6
J-S14008-24
Judgment of sentence affirmed.
Judgment Entered.
Benjamin D. Kohler, Esq. Prothonotary
Date: 5/15/2024
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).
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
22
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.
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
33
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.
55
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
10
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