Com. v. Cordier, T.

• Court: Superior Court of Pennsylvania
• Decided: March 30, 2023
• Docket: 140 MDA 2022
• Status: Unpublished

Opinion

J-A27022-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : TARAH ELIZABETH CORDIER : No. 140 MDA 2022

Appeal from the Order Entered January 5, 2022 In the Court of Common Pleas of Adams County Criminal Division at No(s): CP-01-CR-0001010-2021

BEFORE: DUBOW, J., McLAUGHLIN, J., and COLINS, J.*

MEMORANDUM BY McLAUGHLIN, J.: FILED MARCH 30, 2023

The Commonwealth appeals from the order granting habeas corpus

relief to Tarah Elizabeth Cordier on her endangering the welfare of children

(“EWOC”)1 charges. Because we find that the Commonwealth set forth

sufficient prima facie evidence of EWOC, we reverse and remand.

Based on the evidence at the preliminary and habeas corpus hearings,

which we view at this stage in the light most favorable to the Commonwealth,2

the facts of this case are as follows. On June 12, 2021, around 11:02 p.m.,

Trooper Nathan McHugh of the Pennsylvania State Police was dispatched to

2442 Fairfield Road in Adams County for an automobile crash. N.T. Preliminary

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* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S.A. § 4304(a)(1).

2 See Commonwealth v. Huggins, 836 A.2d 862, 866 (Pa. 2003). J-A27022-22

Hearing, 8/18/21, at 4. When he arrived at the scene, he observed an SUV

sitting in a ditch right next to the roadway. Id. The car was partially elevated

in the air with the passenger side tires in the ditch. N.T. Habeas Corpus

Hearing, 12/6/21, at 5-6. Inside the vehicle was Cordier in the driver’s seat

and her three children, ages three, five, and seven, in the backseat. N.T.

Prelim. Hrg. at 4-5. Trooper McHugh observed that although the children had

age-appropriate car restraints, they were not secured to those restraints when

he arrived. Id. at 5, 11. Although there were no injuries, the vehicle was not

operable and had damage to the front right wheel tire and bumper. Id. at 5.

The driver’s seat airbag was also deployed. Id.

Cordier told Trooper McHugh that she was coming from a friend’s house

and drove off the roadway. Id. at 6. Cordier was argumentative and did not

provide an explanation as to why she had gone off the roadway. Id. at 12-13.

She stated that she had several drinks before driving the vehicle. Id. at 6, 13.

Trooper McHugh observed several bottles of alcohol in the backseat below the

children’s feet. Id. The bottles appeared to be open, and some bottles were

partially filled. Id. at 6. Trooper McHugh observed that Cordier’s pupils were

dilated, her eyes were glassy and bloodshot, her breath smelled like alcohol,

and her speech had a very thick slur. Id. at 7. After Cordier showed signs of

impairment during a field sobriety test, Trooper McHugh arrested her. Id. He

transferred her to the hospital where her blood was drawn at 12:22 a.m. Id.

at 8. Her blood tests revealed that she had a blood alcohol concentration

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(“BAC”) of 0.219 and amphetamine, Delta-9 carboxy THC, Delta-9 THC,

Venlafaxine, and Doxylamine in her system. Id. at 9.

Cordier was charged in June 2021 with three counts of EWOC and one

count of driving under the influence of alcohol (“DUI”).3 A preliminary hearing

was held on August 18, 2021, and all charges were bound over for trial. On

September 28, 2021, the Commonwealth filed a criminal information and

added six additional counts of DUI. The Commonwealth amended the criminal

information on October 7, 2021, to change the grading on Count 3 of the

EWOC charges from a misdemeanor of the first degree to a felony of the third

degree.

Cordier filed a motion for writ of habeas corpus, on October 18, 2021,

arguing that the Commonwealth had failed to present a prima facie case on

the EWOC charges. Following argument on December 6, 2021, the court

granted the motion and dismissed the three EWOC charges. The

Commonwealth appealed, certifying pursuant to Pa.R.A.P. 311(d) that the

order granting of the writ terminates or substantially handicaps its

prosecution.

The Commonwealth raises the following issue:

Did the lower court err when it decided that the facts, taken in the light most favorable to the Commonwealth, do not establish a prima facie case for endangering welfare of children pursuant to 18 Pa.C.S.A. § 4304(a)(1)?

3 75 Pa.C.S.A. § 3802(a)(1).

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Commonwealth’s Br. at 6.

When reviewing an order that grants habeas corpus relief, we face a

question of law for which “our standard of review is de novo, and our scope of

review is plenary.” Commonwealth v. McClelland, 233 A.3d 717, 732 (Pa.

2020).

At the preliminary hearing stage of a criminal case, it is not necessary

for the Commonwealth to prove the defendant’s guilt beyond a reasonable

doubt. Rather, its burden is merely to put forth a prima facie case of the guilt.

Commonwealth v. McBride, 595 A.2d 589, 591 (Pa. 1991). “A pre-trial

habeas corpus motion is the proper means for testing whether the

Commonwealth has sufficient evidence to establish a prima facie case.”

Commonwealth v. Dantzler, 135 A.3d 1109, 1112 (Pa.Super. 2016) (en

banc). “[T]he prima facie showing is a low threshold for the Commonwealth

to surpass.” Commonwealth v. Munson, 261 A.3d 530, 540 (Pa.Super.

2021). A prima facie case exists when the Commonwealth “produce[s]

evidence of every material element of the charged offense(s) as well as the

defendant’s complicity therein.” Dantzler, 135 A.3d at 1112 (citation

omitted). Further, “[i]nferences reasonably drawn from the evidence of record

which would support a verdict of guilty are to be given effect, and the evidence

must be read in the light most favorable to the Commonwealth’s case.”

Huggins, 836 A.2d at 866 (citation omitted) (alteration in original).

The Commonwealth contends it established a prima facie case of EWOC.

It argues that it presented evidence that Cordier knowingly violated a duty of

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care to her children by “knowingly and voluntarily mix[ing] copious amounts

of alcohol and several other controlled and prescription substances, before

getting behind the wheel.” Cordier’s Br. at 17. It maintains that the facts

demonstrated that Cordier caused a disabling vehicle crash, leaving the

vehicle in a ditch and partially elevated in the air. Id. at 17-18. The facts

further showed that open bottles of alcohol were found in Cordier’s car, the

children were not properly restrained in their car seats, and Cordier could not

explain a reason for the crash. Id. at 16, 18. The Commonwealth thus

concludes these facts demonstrate that Cordier “knowingly put her children’s

safety and livelihood at risk of serious bodily injury.” Id. at 10-11.

Cordier, on the other hand, argues the Commonwealth failed to

establish the requisite mens rea for EWOC, i.e., that she knowingly

endangered the welfare of her children. Cordier’s Br. at 10. Citing

Commonwealth v. Vela-Garrett, 251 A.3d 811 (Pa.Super. 2021), she

argues the single fact of driving while intoxicated with children in a vehicle

does not establish the “knowing” mens rea for EWOC. Id. at 10, 14. According

to Cordier, the evidence did not even show that her conduct amounted to the

lesser mens rea of recklessness that is required to establish the crime of

recklessly endangering another person (“REAP”). Id. at 14.

The sole issue is whether the Commonwealth produced sufficient prima

facie evidence of the mens rea element of the EWOC statute. The crime of

EWOC is defined, in relevant part, as follows:

(a) Offense defined.--

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

18 Pa.C.S.A. § 4304(a)(1).

EWOC “is a specific intent offense which was enacted in broad terms to

safeguard the welfare and security of children.” Commonwealth v. Fewell,

654 A.2d 1109, 1117 (Pa.Super. 1995). “To convict an accused of this statute,

the Commonwealth must prove a ‘knowing violation of a duty of care.” Id.

(citation omitted). “Knowingly” is defined in the Crimes Code as follows:

(b) Kinds of culpability defined.--

***

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

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

(ii) if the element involves a result of his conduct, he is aware that it is practically certain that his conduct will cause such a result.

18 Pa.C.S.A. § 302(b)(2)(i), (ii).

We employ a three-prong analysis to ascertain whether the

Commonwealth’s evidence is sufficient to prove that a defendant knowingly

violated a duty of care under the EWOC statute: “(1) the accused must be

aware of his or her duty to protect the child; (2) the accused must be aware

that the child is in circumstances that could threaten the child’s physical or

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psychological welfare; and (3) the accused either must have failed to act, or

must have taken action so lame or meager that such actions cannot

reasonably be expected to protect the child’s welfare.” Commonwealth v.

Sebolka, 205 A.3d 329, 337 (Pa.Super. 2019) (citation omitted).

Both parties agree that Vela-Garrett is the controlling case when a

defendant is charged with EWOC in conjunction with DUI. There, Vela-Garrett

was pulled over because he did not have the required inspection sticker on his

windshield of his vehicle. 251 A.3d at 813. As soon as the officer went over to

the driver’s door, he immediately detected a strong odor of marijuana coming

out of the driver’s window. Id. Vela-Garrett’s girlfriend and three-month-old

baby were also in the vehicle. Id. The officer observed a digital scale and an

empty “twisted corner of a baggie” in the vehicle. Id. at 814. A bag of

marijuana was found in Vela-Garrett’s girlfriend’s pants, which he admitted

was his. Id. He also admitted to smoking marijuana that morning. Id. Vela-

Garrett was taken into custody and transported to the hospital for a blood

draw. Id. His blood test showed that he had 40 nanograms per milliliter of

THC Delta 9 Carboxy metabolite, which is the inactive metabolite of marijuana.

Id.

A jury convicted Vela-Garrett of, inter alia, DUI-metabolite and EWOC.

Id. On appeal, he challenged the sufficiency of the evidence to sustain his

EWOC conviction. Id. at 815. Vela-Garrett argued that the Commonwealth

failed to present sufficient evidence that he “knowingly” placed his child in a

situation that could threaten the child’s physical or psychological welfare. Id.

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at 815-16. He pointed out that he was pulled over for an inspection sticker

violation and there was no evidence that he was speeding, driving erratically,

or taking any other action to indicate he was under the influence of drugs. Id.

at 816.

In reversing his EWOC conviction, we found that the fact of impairment

alone did not establish that Vela-Garrett knowingly placed his child in danger

by driving with the child in the car. Id. Quoting Commonwealth v.

Mastromatteo, 719 A.2d 1081, 1083 (Pa.Super. 1998), we emphasized that

“driving under the influence of intoxicating substances does not create legal

recklessness per se[,] but must be accompanied with other tangible indicia

of unsafe driving to a degree that creates a substantial risk of injury which

is consciously disregarded.” Id. at 817 (emphasis in Vela-Garrett). We noted

that the officer did not observe any unsafe driving by Vela-Garrett or any other

conduct that would constitute “tangible indicia of unsafe driving.” Id. at 818.

Because we found that the evidence was insufficient to show that Vela-Garrett

acted recklessly, we could not conclude that he acted knowingly since “EWOC’s

mens rea of ‘knowingly’ involves a higher level of culpability than REAP’s mens

rea of ‘recklessly.’” Id. We therefore reversed Vela-Garrett’s EWOC conviction.

Id. at 819.

Significantly, Vela-Garrett involved a challenge to the sufficiency of the

evidence after a conviction of EWOC. The instant case is still in the pre-trial

stage where the Commonwealth only was required to make a prima facie

showing — a much lower threshold than that required on a challenge to the

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sufficiency of the evidence to sustain a conviction. See Munson, 261 A.3d at

540.

Viewing the evidence in a light most favorable to the Commonwealth,

and mindful that a prima facie case is a low threshold of proof, we find the

evidence was sufficient to demonstrate a prima facie case of EWOC. While it

is true that driving while intoxicated alone is insufficient to support an EWOC

charge, there was additional evidence here sufficient to constitute prima facie

evidence that Cordier acted knowingly. Cordier was driving with her children

in the car with a high BAC - .219 – as well as a mixture of drugs in her system.

Furthermore, the crash itself provides “other indicia of unsafe driving,” and

the evidence supports a reasonable inference that Cordier caused the crash.

There was damage to the front right tire and bumper, and the driver’s side

airbag was deployed. The vehicle was inoperable and partially elevated in the

air. Moreover, there were open bottles of alcohol in Cordier’s vehicle at the

time of the crash, she admitted to drinking alcohol before driving, and she

showed clear signs of impairment during a field sobriety test. This evidence,

and the reasonable inferences derived therefrom, viewed in their totality,

establishes a prima facie that Cordier knowingly endangered the welfare of

her children. Therefore, the Commonwealth is entitled to relief.

Order reversed. Case remanded. Jurisdiction relinquished.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 03/30/2023

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