J-S18045-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : NICOLE R. ENGLER-HARPER : : Appellant : No. 106 MDA 2022
Appeal from the Judgment of Sentence Entered January 6, 2022 In the Court of Common Pleas of Lycoming County Criminal Division at No(s): CP-41-CR-0000238-2019
BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and McCAFFERY, J.
MEMORANDUM BY McCAFFERY, J.: FILED: AUGUST 16, 2022
Nicole Engler-Harper (Appellant) appeals from the judgment of sentence
entered in the Court of Common Pleas of Lycoming County, following her jury
convictions of two counts of endangering the welfare of children (EWOC).1
Appellant raises three claims: (1) there was insufficient evidence to support
her EWOC convictions; (2) the verdict was against the weight of the evidence;
and (3) the sentence was unreasonable and excessive. We affirm.
We glean the underlying facts supporting Appellant’s convictions from
the November 15, 2021, trial testimony. Appellant rented a home on
Washington Boulevard in Williamsport, Pennsylvania, that she shared with her
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118 Pa.C.S. § 4304(a)(1). Both crimes were graded as third-degree felonies. See Order, 11/18/21. J-S18045-22
paramour, the couple’s two-year-old biological son (D.K.), and her paramour’s
five-year-old son (M.K.) from a prior relationship. The paramour was
considered the “breadwinner” of the family and worked outside the home.
N.T., 11/15/21, at 47. Appellant watched the children during the day and was
their primary caretaker as they were “in her sole custody[.]” Id. at 48.
On the morning of September 27, 2017, Dean Severson, a Codes
Enforcement Officer for the City of Williamsport, went to Appellant’s residence
with a rental agent to perform a home inspection. N.T., 11/15/21, at 14.
Appellant was mowing the yard at the time. Id. at 17. After Officer Severson
entered the home to begin the inspection, Appellant rushed past him in the
stairwell and “unlock[ed] a lock on a door” to a bedroom on the second floor.
Id. at 20. Officer Severson noticed there was “a regular padlock with a key”
and a “hasp[2] on the door.” Id. Inside the room, the inspector observed
M.K., in only his underwear, lying on a mattress on the floor. Id. Additionally,
there were: (1) no sheets on the bed; (2) a pillow without a pillowcase; (3) a
light without a lampshade; and (4) some minor holes in the wall. Id. at 19-
20. Additionally, the windows were boarded up, divesting the room of natural
light. Id. Officer Severson instructed Appellant to remove the lock. Id. at
21. The inspector noted that Appellant responded in an irritated way, stating:
2Severson described a “hasp” as a “metal device” that is screwed to “the jamb on the door.” N.T., 11/15/21, at 20. He stated, “you can put [the hasp] over [a] little hook. When you close it, you can put the lock on it.” Id.
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“[W]hat do you want me to do [─] let him out and break everything in the
house[?]” Id. at 22. Officer Severson then told Appellant that if she did not
remove the lock, he would call the Children & Youth Services Office (CYS).
Id.
Officer Severson moved to the second bedroom on that floor when
Appellant took “a screwdriver out of another hasp that[ was] on that door that
was locking that door closed.” N.T., 11/15/21, at 23. He described the second
bedroom as very cluttered ─ there were “dressers on top of dressers and a TV
on top of another dresser’ that was “leaning[.]” Id. He was concerned about
the device falling on the child, D.K., who was sitting in a playpen. Id.
Officer Severson contacted the landlord, who “got a screw gun and
removed [the locks from] the door[s].” N.T., 11/15/21, at 24. He noted it
was “illegal to have a lock on the outside of the bedroom door” because if
there were an emergency, a person could not get out. Id. at 25. Appellant
attempted to give Officer Severson the locks before he left.3 Id. at 28. The
inspector returned to his office and called CYS to report the incident. Id. at
25.
Edward Frame, a caseworker for Lycoming County CYS, received a
referral report for “confining and restraining” two children from Officer
Severson and he visited the home around 3:45 p.m. that same afternoon.
3 It is unclear from the record whether the inspector accepted the locks.
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N.T., 11/15/21, at 30-31. While outside the residence, Frame first met
Appellant’s paramour, who stated he was aware Officer Severson was there
earlier, and “that there was an issue.” Id. at 32. Appellant then came onto
the porch and was visibly upset. Id. Frame noted her initial response to him
after he mentioned the report was: “Oh, my God, they called you[.]” Id.
Appellant informed him that the locks had been removed. Id. at 33. It was
Frame’s understanding that M.K.’s room was locked “because that was
[Appellant]’s way to assure safety” and the door to D.K.’s room was locked
“to keep [M.K.] out of that room.” Id. at 50. Furthermore, Appellant informed
Frame that “she was unable to control [M.K.]’s behaviors and that’s why he
was locked and boarded ─ the windows were boarded and that she had locked
her room to keep him out.” Id. at 53. Appellant also told the caseworker that
M.K. attempted to “escape the residence” and went into the bathroom and
played with dangerous items. Id. at 53-54.
Frame went inside the home and while, walking up to the second floor,
“got a strong sense of urine.” N.T., 11/15/21, at 33. Frame entered M.K.’s
bedroom,4 and observed the child standing, wearing only a pair of shorts. Id.
He noticed the bedroom smelled of urine, and the carpets were saturated with
what he believed was urine and it felt sticky. Id. at 34. There was a soiled,
4 Frame recalled that the door to M.K.’s bedroom was closed when he got there. N.T., 11/15/21, at 34.
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urine-stained mattress on the floor with a small blanket and training toilet in
the corner of the room. Id. at 33-34. There was no other furniture or toys
in the room. Id. at 33. Like Officer Severson, Frame also saw that the two
windows were “boarded with drywall screwed over, so there[ was] minimal
light coming into the room.” Id. He also noticed the baseboard heating vents
had been removed, which was “concerning” because there were “small metal
fins that [were] attached to piping that [were] sharp.” Id. at 35. Moreover,
Frame saw holes in the walls and a lot of chipped paint. Id. Frame advised
Appellant to clean the room, find appropriate bedding, remove the boards
from the windows, and remove the toilet. Id.
Frame then went to D.K.’s bedroom, which he learned the child shared
with Appellant. N.T., 11/15/21, at 36. He saw the child sleeping in a portable
playpen that was “dirty.” Id. at 37. He noted there were blankets over the
windows, and it was “overly cluttered.” Id. Frame subsequently told the
paramour what changes were necessary, and that he “would return to the
house to ensure that” what he “had requested was rectified.” Id.
The next morning, Frame arrived at the residence with an emergency
outreach worker, Jackie Hummer. N.T., 11/15/21, at 45. Frame observed
that none of the requested changes had been made. Id. He “learned” from
M.K. and Appellant that the paramour “was aware that the children were being
locked in their room.” Id. at 46. Frame “did not believe that there w[ere]
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appropriate protective capacities for the children to remain in the home,” and
thus, requested emergency custody. Id.
After his supervisor granted the emergency custody request, Frame
telephoned the paramour, who was at work. N.T., 11/15/21, at 47. The
paramour indicated that CYS do “whatever [they] felt was best.” Id. Frame
returned to the residence with two caseworkers, Elizabeth Spagnuolo and
Sarah Neff, and two Williamsport police officers. Id. at 46-47. The children
were placed in Frame’s custody and removed from the home. Id. Frame
noticed that Appellant was “holding [D.K.] and sobbing about him being
taken[,]” but she showed no attachment to M.K. Id. at 48. Frame asked
Appellant to pack clothing for the children but she could not do so because all
of the children’s clothes “were dirty.” Id. at 50.5
Appellant was charged with two counts of EWOC and one count of
unlawful restraint of minor.6 The matter proceeded to a one-day jury trial on
November 15, 2021.7 The Commonwealth presented the testimony of Officer
5 At Appellant’s sentencing hearing, Frame provided supplementary testimony that Appellant “monitored the food and water intake to these boys.” N.T., 1/6/22, at 6. Moreover, he stated that when he took custody of them, they were “under the fifth percentile for their height and weight.” Id.
6 18 Pa.C.S. § 2902(c)(1).
7 Appellant was originally tried on February 5, 2020, but the jury failed to reach a verdict, resulting in a mistrial. Due to COVID-related issues, a second trial was not held until November 2021. At the time of the trial, the Commonwealth withdrew the unlawful restraint charge.
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Severson and Frame about the conditions of the residence and their
interactions with Appellant. The Commonwealth also presented the testimony
of Spagnuolo, the assessment caseworker for CYS, and Kara Smith, M.K. and
D.K.’s foster parent. Each described the behavior of the children upon their
removal from the residence.8
Appellant testified she was unemployed at the time of the incident and
was taking care of both boys. See N.T., 11/15/21, at 76-77. She stated that
M.K. had the following behavioral issues: (1) he did not listen to what
Appellant and his father told him to do; (2) he hid things, like razors, screws,
and nails, in his room; (3) he dug the holes in the walls and peeled off the
paint; and (4) he jumped off furniture. Id. at 77-78. Appellant testified M.K.
tried to run away on April 6, 2017, and that in response, she installed the
locks a day or two later. Id. at 79. She indicated she boarded up the windows
“a few months later” because M.K. would hang out the window. Id. at 80.
8 Spagnuolo testified that D.K showed no emotion when she removed him from the home ─ he did not cry or grab for anyone. N.T., 11/15/21, at 62- 63. She noted M.K. was “very excited” to leave and used a derogatory word in reference to Appellant. Id. at 63.
Smith testified that when the boys arrived at her home, their bodies and clothes were dirty. N.T., 11/15/21, at 69. D.K.’s skin was very pale, his eyes were red and sunken in, and he did not make any noise or interact with anyone. Id. at 69-70. Smith found that M.K. did not act inappropriately and he did not destroy or hang off the furniture or damage the walls. Id. at 70- 71. She indicated there was nothing behavior-wise about M.K. that concerned her. Id. at 72. She believed he engaged in “typical five-year-old behavior.” Id. at 73.
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Appellant took these measures because she wanted to ensure M.K.’s safety.
Id. at 80.
Nevertheless, Appellant admitted to locking M.K. in his room, which
“became an every night thing[,]” “to make sure he stayed in his room[.]”
N.T., 11/15/21, at 80-81. She acknowledged that she locked him in the room
during the day “a couple of times a week[,] but only for a maximum of ten to
15 minutes” when she was cleaning with chemicals. Id. at 81. Appellant later
indicated the day-time detention was “[m]aybe three times a week depending
on the behavioral issues.” Id. at 81-82. She testified she took the set of
bunk beds and dresser out of M.K.’s room because he would climb and jump
off the furniture, and she removed toys from his room because he would hide
them in there. Id. at 83-84. Appellant said there were no sheets or blankets
on M.K.’s bed because he “spilled something” and the training potty was in
the room for emergencies. Id. at 84. She denied that the carpet was soaked
with urine or that Officer Severson and Frame provided her with a list of
improvements for the home. Id. at 85-86. Instead, Officer Severson only
told her to remove the locks. Id. at 85. When asked about the lack of clean
clothes for the children, Appellant stated that she only did laundry once a
week, and the incident happened one day prior to that designated laundry
day. Id. at 86. She denied using locks with D.K. but also stated that she
would lock the door to his room when she and the child left the property. Id.
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She also refuted Officer Severson’s testimony that there was a “padlock” on
M.K.’s door and that there was any “screwdriver” on D.K.’s door. Id. at 89.
The jury found Appellant guilty of the two EWOC charges. On January
6, 2022, the trial court sentenced Appellant to consecutive periods of
incarceration of 12 to 24 months. On January 10th, Appellant filed a post-
sentence motion, raising three issues: (1) the evidence presented was
insufficient to establish the elements of EWOC; (2) the verdict was against the
weight of the evidence; and (3) the sentence was unreasonable and excessive
because the trial court imposed consecutive sentences and failed to consider
Appellant’s reasons for her actions. Appellant’s Motion for Post-Sentence
Relief, 1/10/22, at 3-6. Two days later, the court entered an order denying
Appellant’s motion because it found the arguments were “non-meritorious.”
Order, 1/12/22.
On January 13, 2022, Appellant filed a timely notice of appeal, and
subsequently complied with the trial court’s order to file a Pa.R.A.P. 1925(b)
statement of errors complained of on appeal.
Appellant presents three issues for our review:
1. [Whether t]he evidence presented by [the Commonwealth was] insufficient to establish the elements of the charges of [EWOC?]
2. [Whether t]he verdict was against the weight of the evidence as to shock the conscience as there was no evidence these children were locked in their rooms for long periods of time, that they were neglected[,] and in light of her testimony that her actions were out of a place of love, safety, care and control[?]
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3. [Whether t]he sentence imposed was unreasonable and excessive in light of the sentencing factors as the [trial c]ourt imposed consecutive sentences and failed to consider Appellant’s reasons for her actions[?]
Appellant’s Brief at 7.9, 10
In her first issue, Appellant challenges the sufficiency of the evidence
with respect to both EWOC convictions. See Appellant’s Brief at 23. Appellant
contends that the Commonwealth failed to provide any testimony that “she
knowingly violated a duty of care, protection or support” to D.K. and M.K. Id.
at 24. Appellant also alleges the Commonwealth failed to demonstrate that
she engaged in “a course of conduct” that would support the finding that the
offenses qualified as third-degree felonies. Id. She states:
The testi[mony] presented could not prove that [Appellant] had locked M.K. and D.K. in their rooms for long periods of time. Not one witness had been there to see that occur and there was no testimony to that having occurred. Moreover, there was no evidence the children were locked in the rooms with dangerous items or deprived of the necessities of life. [Appellant] testified to the children being out of their rooms most of time, feeding them healthy meals, playing with them, teaching them, etc. There was no evidence [Appellant] caused any harm whatsoever to these children.
Id. at 24-25.
9 We have reordered Appellant’s claims for ease of disposition.
10 The Commonwealth did not file a responsive brief in this matter.
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Appellant also alleges that she “used the locks for M.K to keep him safe
[and that t]he locks were used out of a place of love, safety, security and
care.” Appellant’s Brief at 25. She further asserts that the locks and the
boarding of the windows in M.K.’s room were to prevent the child from
escaping the residence, gathering harmful items from around the residence,
falling out of the second-story windows, or becoming injured when she was
cleaning with chemicals or mowing the law. Id. Appellant concludes, “All of
this evidence shows she was doing the opposite of . . . endangering the welfare
of these children.” Id. No relief is due.
We begin with our well-settled standard of review:
As a general matter, our standard of review [for a sufficiency claim] requires that we evaluate the record in the light most favorable to the verdict winner giving the prosecution the benefit of all reasonable inferences to be drawn from the evidence. Evidence will be deemed sufficient to support the verdict when it establishes each material element of the crime charged and the commission thereof by the accused beyond a reasonable doubt. Nevertheless, the Commonwealth need not establish guilt to a mathematical certainty. Any doubt about the defendant’s guilt is to be resolved by the fact finder unless the evidence is so weak and inconclusive that, as a matter of law, no probability of fact can be drawn from the combined circumstances.
The Commonwealth may sustain its burden by means of wholly circumstantial evidence. Accordingly, [t]he fact that the evidence establishing a defendant’s participating in a crime is circumstantial does not preclude a conviction where the evidence coupled with the reasonable inferences drawn therefrom overcomes the presumption of innocence. Significantly, we may not substitute out judgment for that of the fact finder; thus, so long as the evidence adduced, accepted in the light most favorable to the Commonwealth, demonstrates the respective elements of a defendant’s crimes beyond a reasonable doubt, the . . . convictions will be upheld.
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Commonwealth v. Windslowe, 158 A.3d 698, 708-09 (Pa. Super. 2017)
(citation omitted).
The crime of EWOC is defined, in relevant part, as follows: “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. § 4304(a)(1). The EWOC statute
provides that the term, “person supervising the welfare of a child,” means “a
person other than a parent or guardian that provides care, education, training
or control of a child.” 18 Pa.C.S. § 4304(a)(3).
The “knowing” element of the crime applies to the general issue of whether the defendant knew that he was endangering the child’s welfare, not whether the defendant knew that he would cause any particular result. For example, in Commonwealth v. Passarelli, 789 A.2d 708, 716 (Pa. Super. 2001), the Commonwealth presented evidence that the defendant was entrusted with the care of a child, whom he intentionally shook or struck on the side of the head. In ruling that the evidence was sufficient for EWOC, we wrote that “the act that [the defendant] performed on [the victim] was not designed to protect, care or support [the victim].”
Commonwealth v. Smith, 956 A.2d 1029, 1038 (Pa. Super. 2008) (en
banc).
To establish a violation of Section 4304, the Commonwealth must
demonstrate the following:
1) the accused is aware of his/her duty to protect the child; 2) the accused is aware that the child is in circumstances that could threaten the child’s physical or psychological
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welfare; and 3) the accused has either failed to act or has taken action so lame or meager that such actions cannot reasonably be expected to protect the child's welfare.
If the Commonwealth fails to prove any one of these elements, there is insufficient evidence to sustain a conviction for child endangerment.
Commonwealth v. Pahel, 689 A.2d 963, 964 (Pa. Super. 1997) (citation
omitted).
In Commonwealth v. Taylor, 471 A.2d 1228 (Pa. Super. 1984), this
Court discussed the legislature’s intent in Section 4304:
The Supreme Court has said that Section 4304 was drawn broadly to cover a wide range of conduct in order to safeguard the welfare and security of children. It is to be given meaning by reference to the common sense of the community and the broad protective purposes for which it was enacted. Thus, the common sense of the community, as well as the sense of decency, propriety and the morality which most people entertain is sufficient to apply the statute to each particular case, and to individuate what particular conduct is rendered criminal by it.
Id. at 1231 (emphasis added; citations and quotation marks omitted).
Additionally, the offense constitutes a third-degree felony if “the actor
engaged in a course of conduct of endangering the welfare of a child.” 18
Pa.C.S. § 4304(b)(ii). The statute does not define the term “course of
conduct.” See Commonwealth v. Kelly, 102 A.3d 1025, 1031 (Pa. Super.
2014) (noting that “course of conduct” language in EWOC statute used in
grading of offense, and not as element of offense, and pointing out that EWOC
statute does not define term but highlighting that “the phrase is clearly used
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in that context to differentiate the penalties for single and multiple
endangering acts”).
Here, the trial court found the following:
[T]he facts presented at trial established that [Appellant], who cared for her biological child, two . . . years old, and her paramour’s son, five . . . years old, while her paramour was working, would lock the children in separate bedrooms with padlocks on the outside of the doors. The condition of the rooms were deplorable. The eldest child’s room contained only a stained mattress without bedding and a child’s training toilet. The windows were boarded up such that there was no natural light and the carpet was saturated with what smelled like urine. The child was found wearing nothing but underwear. The younger child was sleeping in a second room in a dirty pack-and-play and the room was extremely cluttered. On the day following this discovery, the [CYS] caseworker returned to the home but there was no change. [Appellant]’s excuse was that she locked the children in the room to prevent the eldest child from harming himself and others. . . .
Based on these facts, along with the other facts established at trial, this Court remains of the opinion that . . . the evidence was sufficient to prove that [Appellant] knowingly violated her duty of care, protection, or support to the two minor victims.
Trial Ct. Op., 2/1/22, at 4-5.
We agree with the trial court’s determination that the evidence
supported Appellant’s convictions. A review of the record reveals that while
no witness could provide specific testimony as to the length of time the
children were locked in the bedrooms or that the children were deprived of the
necessities of life, the jury could reasonably infer from the testimony that
Appellant knowingly endangered the welfare of the children by violating her
duty of care, protection or support. See 18 Pa.C.S. § 4304(a)(1).
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First, Appellant was aware of her duty to protect the children as they
were in her daily custody as a primary caregiver while her paramour worked.
N.T., 11/15/21, at 47-48, 76.
Second, she was aware that the children were in circumstances that
could threaten their physical or psychological welfare. Appellant rushed past
the inspector to unlock the locks before he could observe the state of the doors
and the fact that children were in those bedrooms. N.T., 11/15/21, at 20.
Moreover, by her own admission, Appellant installed the locks in April 2017,
five months prior to the inspection, and boarded up the windows several
months later. Id. at 79. She admitted to locking M.K. in his room nightly.
Id. at 80-81. Appellant also indicated she locked M.K. in his room during the
day “[m]aybe three times a week depending on [his] behavioral issues.” Id.
at 81-82. She removed all furniture and toys from the room because of his
purported bad behavior. Id. at 83-84. While Appellant denied using locks
with D.K., Officer Severson observed her unlock the door with a screwdriver,
while the child was inside the room. Id. at 23.
Third, Appellant failed to act to protect the children’s welfare. We
reiterate that “Section 4304 was drawn broadly to cover a wide range of
conduct in order to safeguard the welfare and security of children” and it was
refer “to the common sense of the community[.]” Taylor, 471 A.2d at 1231.
In addition to the locks, there was evidence of the deplorable and unsanitary
conditions of the children’s bedrooms and the physical state of the children.
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Officer Severson testified that there was a locked padlock on M.K.’s bedroom
door, and in the room, he observed a mattress on the floor without sheets,
minor holes in the wall, peeled paint, windows boarded up that did not let in
any natural light, and M.K. wearing only underwear. See N.T., 11/15/21, at
20-22. Officer Severson also testified that he found D.K. in a locked room
that Appellant had to unlock with a screwdriver. See id. at 23. In this room,
he observed a lot of clutter and stacked furniture leaning towards the playpen
where D.K. was placed. See id. at 23-24.
Frame, the CYS caseworker, testified that there was a strong smell of
urine in the hallway near M.K.’s and D.K.’s rooms. Frame observed the carpet
in M.K.’s room was saturated in urine, his mattress was soiled and urine-
stained, the windows were boarded with drywall so no natural light could come
through, and the covers to the baseboard heating vents had been removed,
which created a dangerous condition. See N.T., 11/15/21, at 33-35. In the
room that D.K. shared with Appellant, Frame observed D.K. sleeping in a
“dirty” playpen, and there were blankets covering the windows, and lots of
clutter. Id. at 36-37. Frame testified he returned to Appellant’s residence
the following day and did not observe any changes. Id. at 38, 45. Frame
also stated that Appellant did not have any clean clothes for the children when
they were removed from her custody. Id. at 50.
The evidence adduced at trial overwhelmingly established that the
children’s bedrooms were not suitable living conditions, that this environment
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threatened the children’s welfare, and Appellant failed to act in a proper way.
The jury was free to reject Appellant’s explanation that her actions were out
of love, safety, security, and care, and find her responsible. See Windslowe,
158 A.3d at 708-09. As for Appellant’s claim that there was insufficient
evidence to support the grading of the offense, she misconstrues the element
of “course of conduct” by solely focusing on the amount of time the children
were locked in their rooms. Although the EWOC statute does not define
“course of conduct,” the phrase differentiates the penalties for single and
multiple endangering acts. See Kelly, 102 A.3d at 1031. Here, it was evident
that Appellant’s nefarious actions constituted multiple endangering acts over
an extended period.
Viewing the evidence in a light most favorable to the Commonwealth,
we conclude there was sufficient evidence to sustain convictions for EWOC,
and that a jury could reasonably find a course of conduct that endangered the
welfare of M.K. and D.K. We find that Appellant’s sufficiency claim is without
merit.
In Appellant’s second issue, she asserts the verdict was against the
weight of the evidence as to her EWOC convictions because “she never
endangered the welfare of these children.” Appellant’s Brief at 21.11 Appellant
11Appellant properly preserved her challenge to the weight of the evidence in her post-sentence motion pursuant to Pa.R.Crim.P. 607(A). See Pa.R.Crim.P. 607(A)(1)-(3) (a challenge to the weight of the evidence must be raised before (Footnote Continued Next Page)
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again claims that “there was no evidence the children were locked in the rooms
with dangerous items or deprived of the necessities of life.” Id. She also
maintains that there was no evidence that she “caused any harm whatsoever
to these children.” Id. at 22. Appellant relies on her own testimony ─ that
she used the locks and boarded the windows to keep M.K. safe, and that she
only locked the room she shared with D.K. when the two left the home ─ to
support her argument. Id. at 22.
This Court’s standard of review of a weight of the evidence claim is well-
settled:
A weight of the evidence claim concedes that the evidence is sufficient to sustain the verdict, but seeks a new trial on the ground that the evidence was so one-sided or so weighted in favor of acquittal that a guilty verdict shocks one's sense of justice. On review, an appellate court does not substitute its judgment for the finder of fact and consider the underlying question of whether the verdict is against the weight of the evidence, but, rather, determines only whether the trial court abused its discretion in making its determination.
Commonwealth v. Lyons, 79 A.3d 1053, 1067 (Pa. 2013) (citations
omitted). Further, the jury, as fact finder, is free to believe all, some, or none
or the evidence presented. Commonwealth v. Jacoby, 170 A.3d 1065, 1078
(Pa. 2017) (citations omitted). The jury is also free to “resolve any
inconsistencies or discrepancies in the testimony in either party's favor.” Id.
the trial court either before sentencing or in a post-sentence motion); see also Commonwealth v. Walsh, 36 A.3d 613, 622 (Pa. Super. 2012).
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This Court will not find an abuse of discretion
based on a mere error of judgment, but rather . . . where the [trial] court has reached a conclusion which overrides or misapplies the law, or where the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will. Importantly, [this C]ourt should not find that a trial court abused its discretion merely because [we] disagree[ ] with the trial court’s conclusion. Indeed, “when reviewing the trial court’s exercise of discretion, it is improper for [this C]ourt to ‘step[ ] into the shoes’ of the trial judge and review the evidence de novo.” In other words, [this C]ourt may not disturb a trial court’s discretionary ruling by substituting its own judgment for that of the trial court.
Commonwealth v. Gill, 206 A.3d 459, 467 (Pa. 2019) (citations and some
quotation marks omitted).
In denying Appellant’s weight claim, the trial court relied on the same
evidence it considered to reject her sufficiency argument. See Trial Ct. Op.,
at 4-5. As addressed above, the court highlighted the following facts: (1) the
“deplorable” conditions of the children’s bedrooms; (2) the physical state of
the children; (3) and Appellant’s sole justification for her actions was
“prevent[ing] the eldest child[, M.K.,] from harming himself and others.” Id.
Appellant’s argument amounts to a request for this Court to reweigh the
evidence in her favor. This request is beyond our scope of review. As the
jury was free to believe all, part, or none of the evidence, we may not re-
weigh the evidence or disturb the jury’s credibility determinations. See
Jacoby, 170 A.3d at 1078. The jury heard from all the witnesses, including
Officer Severson, Frame, and Smith, and found them to be credible based on
the convictions. The jury considered Appellant’s self-serving testimony and
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found her incredible. We decline to substitute our credibility determinations
for that of the jury. See Jacoby, 170 A.3d at 1078; Lyons, 79 A.3d at 1067.
Moreover, the jury’s verdict was supported by the evidence and does not
shock one’s sense of justice. We conclude Appellant failed to demonstrate
how the trial court abused its discretion in denying her challenge to the weight
of the evidence, and no relief is due.
Appellant’s final claim presents a challenge to the discretionary aspects
of her sentence, that sentence was unreasonable and excessive in light of the
sentencing factors and her reasons for her actions. See Appellant’s Brief at
16; see also Commonwealth v. Ahmad, 961 A.2d 884, 886 (Pa. Super.
2008) (“A challenge to an alleged excessive sentence is a challenge to the
discretionary aspects of a sentence.”). Before this Court can address a
discretionary challenge in sentencing, an appellant must comply with the
following requirements:
An appellant challenging the discretionary aspects of his sentence must invoke this Court’s jurisdiction by satisfying a four- part test: (1) whether appellant has filed a timely notice of appeal, see Pa.R.A.P. 902 and 903; (2) whether the issue was properly preserved at sentencing or in a motion to reconsider and modify sentence, see Pa.R.Crim.P. [720]; (3) whether appellant’s brief has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a substantial question that the sentence appealed from is not appropriate under the Sentencing Code.
Commonwealth v. Caldwell, 117 A.3d 763, 768 (Pa. Super. 2015) (citation
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Here, a review of the record reveals Appellant properly preserved her
discretionary aspects of sentencing issue by including it in her January 10,
2022, post-sentence motion, filing a timely notice of appeal, and including a
Pa.R.A.P. 2119(f) statement in her brief. See Appellant’s Brief at 14-15.
Thus, we must determine whether she has raised a substantial question
justifying our review.
The determination of what constitutes a substantial question must be evaluated on a case-by-case basis. A substantial question exists only when the appellant advances a colorable argument that the sentencing judge’s actions were either: (1) inconsistent with a specific provision of the Sentencing Code; or (2) contrary to the fundamental norms which underlie the sentencing process.
Commonwealth v. Proctor, 156 A.3d 261, 273 (Pa. Super. 2017) (citations
and quotation marks omitted). “We cannot look beyond the statement of
questions presented and the prefatory Rule 2119(f) statement to determine
whether a substantial question exists.” Commonwealth v. Crawford, 2021
PA Super 62, 257 A.3d 75, 78-79 (Pa. Super. 2021).
In Appellant’s Rule 2119(f) statement, she contends the trial court
abused its discretion and imposed an excessive length of sentence,
complaining:
[H]er sentence is unreasonable because the [trial] court focused on exclusively its belief that the children were locked in isolation and that their mental health could have been [a]ffected permanently. The [trial] court completely failed to give appropriate and meaningful consideration to, among other things, the legislature’s account for this through the sentencing guidelines, the fact that no testimony was presented to show [Appellant’s] actions were not out of a place of love, safety, care, and control as was testified to by her. There was absolutely no[ ]
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testimony presented which would have show[ed] the children were living in isolation by being locked in their rooms for the periods of time [as] testified to by [Appellant].
Appellant’s Brief at 14-15.
This Court has previously determined that a substantial question exists
when the issue is “whether the decision to sentence consecutively raises the
aggregate sentence to, what appears upon its face to be, an excessive level
in light of the criminal conduct[.]” Commonwealth v. Gonzalez-
DeJusus, 994 A.2d 595, 598-99 (Pa. Super. 2010) (emphasis added). We
interpret Appellant’s claim to fall under this type of substantial question. Thus,
we may proceed to consider the merits of her claim.
Appellant asserts the trial court failed to give “meaningful consideration”
of the sentencing factors by imposing a patently excessive sentence.
Appellant’s Brief at 18. She contends the court “obsessively focused on [its]
belief that this was long, [on]going treatment of these children that could have
affected their mental health when there was no testimony as to how long this
had been occurring.” Id. Appellant also claims the court failed to give
appropriate weight to mitigating factors, such as her lack of a prior criminal
history, and that she has not committed any additional crimes and has
attended every required criminal proceeding. Id. at 19. Finally, she points
out that she was employed while out on bail. Id. No relief is due.
We have a deferential standard of review for discretionary aspects of
the sentence claims:
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Sentencing is a matter vested within the discretion of the trial court and will not be disturbed absent a manifest abuse of discretion. An abuse of discretion requires the trial court to have acted with manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of support so as to be clearly erroneous.
Commonwealth v. Crump, 995 A.2d 1280, 1282 (Pa. Super. 2010)(citations
Pursuant to 42 Pa.C.S. § 9721(b), “the [trial] court shall follow the
general principle that the sentence imposed should call for confinement that
is consistent with the protection of the public, the gravity of the offense as it
relates to the impact on the life of the victim and on the community, and the
rehabilitative needs of the defendant.” 42 Pa.C.S. § 9721(b). “[T]he court
shall make as part of the record, and disclose in open court at the time of
sentencing, a statement of the reason or reasons for the sentence imposed.”
Id. The record “must reflect the [trial] court’s consideration of the facts of
the crime and character of the offender.” Crump, 995 A.2d at 1283. “In
particular, the court should refer to the defendant’s prior criminal record, his
age, personal characteristics and his potential for rehabilitation.”
Commonwealth v. Griffin, 804 A.2d 1, 10 (Pa. Super. 2002).
We emphasize the trial court “is in the best position to measure various
factors and determine the proper penalty for a particular offense based upon
an evaluation of the individual circumstances before it.” Commonwealth v.
Perry, 32 A.3d 232, 236 (Pa. 2011) (citation and quotation marks omitted).
“Where pre-sentence reports exist, we shall continue to presume that the
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sentencing judge was aware of relevant information regarding the defendant’s
character and weighed those considerations along with mitigating statutory
factors.” Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988).
Here, the trial court had the benefit of the pre-sentence investigation
report. See N.T., 1/6/22, at 2. Appellant had a prior record score of zero,
and the offense gravity score for both EWOC counts was six. See Trial Ct.
Op. at 2. The applicable sentencing guidelines provide that the standard range
was three to 12 months, with an additional six months in the aggravated
range. Id. As noted above, the court sentenced Appellant to consecutive
terms of 12 to 24 months’ incarceration, which was at the top end of the
standard range. See N.T., 1/6/22, at 10.
“Where the sentencing court impose[s] a standard-range sentence with
the benefit of a pre-sentence report, we will not consider the sentence
excessive. In those circumstances, we can assume the sentencing court was
aware of relevant information regarding the defendant’s character and
weighed those considerations along with mitigating statutory factors.”
Commonwealth v. Corley, 31 A.3d 293, 298 (Pa. Super. 2011).
Nonetheless, at sentencing, the court received updated information
regarding Appellant’s employment status. N.T., 1/6/22, at 3. The court also
heard additional testimony from Frame, who stated that the children were
malnourished and that after the children had been removed from the home,
Appellant texted Frame about “appropriate window locks.” Id. at 6-7. Frame
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testified: “So this [was not] about the care and the love of these children.
She hated [M.K.].” Id. at 7.
In seeking an aggravated range sentence, the Commonwealth noted the
following:
The conditions in which these children lived, deplorable does not begin to describe their situation and plight. At [two], the younger child was not speaking and shied away. At five, the older child, spoke up and called [Appellant] an asshole. At five.
[M.K.] lived with a mattress, a potty, and a dirty blanket in a urine-stained room with a lock. . . . That is not parenting. That is not mothering.
[Defense] counsel argued that [Appellant] maintains she provided safety, care, and control. Those are three words that cannot be used to describe what she did to those children. There is no safety [for a two] and five [year old] locked in a room. There is no safety without food and love and nourishment. There is no care.
I will give [Appellant] credit, control is what she had. At [two] and five you don’t have control, others do. She had control, and she exercised it poorly. [Defense] counsel argues her rights were terminated. I applaud that termination, but that is not her punishment today. That was a separate collateral effect of her behavior that should not move the [c]ourt towards leniency today.
Beyond safety, care, and control, counsel argues [Appellant] showed love and care and a safe environment; and those are simply not true. The allegations come from the mouth of a five- year-old, the actions of a [two]-year-old, the admission by the father of both children, the observations of disinterested parties that saw boarded windows and locked doors. That all undercuts her position for safety, care, and control.
Your Honor, the allegations are beyond egregious. They’re disgusting. We would ask that the [c]ourt impose a sentence above the standard range for this individual to reflect the everlasting impact she has personally had on those two young individuals.
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Id. at 8-9. Appellant did not exercise her right to allocution and speak at the
hearing.
At the conclusion of the proceeding, the court set forth its rationale:
The Court[,] in reaching this determination, [heard] the explanation given by [Appellant] in that she was intending to . . . protect these children; but [it was] not sure what she was trying to protect them from.
Preventing them from having the necessary food and water, having nothing ─ a five-year-old having nothing beyond a mattress in a room, which [it] clearly remember[ed] the testimony that the lower portion of the living premise was fully furnished and kept nice and tidy and was [as] if the children were not allowed to be outside that room.
That does not . . . match up with trying to take care of these children. There [was] nothing that was stated there that would support her position. And, quite honestly, we’re only here on [EWOC] charges because a code officer reported this.
There was nothing that [indicated] this behavior was going to self-correct. This was not an isolated incident of the one time a caregiver inappropriately handl[ed] a child. . . .
This was a long, ongoing treatment of these children. This could have resulted in their deaths due to [a] lack of nourishment. If that wasn’t the case, it could have been the . . . mental health of these children having lived in insolation, what it could have done to them.
That’s why [it did] not find this to be a case appropriate at all for a mitigated sentence, and that is why [it] imposed the top of the standard range on each of these counts as there [were] two separate children who have suffered this harm.
Id. at 10-11.
In its Pa.R.A.P. 1925(a) opinion, the trial court added:
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While the [c]ourt found [Appellant]’s actions to be inhumane and, if not for the intervention from a third party, would have carried on indefinitely, the [c]ourt’s sentence was within the standard range of the sentencing guidelines. [Appellant]’s actions were callus and will have a lifetime impact on the victims. Additionally, the [c]ourt was within its discretion to impose consecutive sentencing, considering the fact that there are two separate victims in this case.
Trial Ct. Op. at 3.
Under our standard of review, we conclude the trial court did not abuse
its discretion with regard to Appellant’s sentence. Contrary to her argument,
it is evident from the sentencing hearing and the Rule 1925(a) opinion that
the court considered the required factors under Section 9721(b). Likewise,
the court acknowledged its understanding of the sentencing guidelines, and
articulated a sufficient statement of reasons for its sentence. Contrary to
Appellant’s assertion that there no testimony as to how long her abuse had
been occurring, the record clearly demonstrates that it persisted for a
substantial period based on the conditions of the children and the home.
Therefore, the court was justified in emphasizing the lasting effect of
Appellant’s treatment of the children on their mental health. Accordingly,
Appellant’s discretionary sentencing claim fails.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 08/16/2022
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