J-S39036-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : CELESTIN JULES : : Appellant : No. 656 MDA 2023
Appeal from the Judgment of Sentence Entered April 21, 2023 In the Court of Common Pleas of Berks County Criminal Division at No(s): CP-06-CR-0004101-2021
BEFORE: DUBOW, J., McLAUGHLIN, J., and McCAFFERY, J.
MEMORANDUM BY McCAFFERY, J.: FILED: DECEMBER 18, 2023
Celestin Jules (Appellant) appeals from the judgment of sentence
entered in the Berks County Court of Common Pleas, following his non-jury
conviction of one count of endangering the welfare of children (EWOC).1
Contemporaneous with this appeal, Appellant’s counsel, William C. Bispels,
Esquire, has filed a petition to withdraw from representation and an Anders
brief. See Anders v. California, 386 U.S. 738 (1967); Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009). The Anders brief presents challenges
to the sufficiency and weight of the evidence supporting Appellant’s
conviction. In addition, Appellant submitted a pro se answer and
supplemental response to the Anders brief raising additional claims. Based
on the following, we affirm. ____________________________________________
1 18 Pa.C.S. § 4304(a)(1). J-S39036-23
On October 6, 2021, Appellant was charged with one count of EWOC in
connection with the care of his 10-year-old son. The case proceeded to a
bench trial on March 7, 2023, during which Appellant was represented by
Corey S. Chwiecko, Esquire.
The trial court summarized the relevant testimony as follows:
Deneida Perez testified that she is a case manager for Signature Family Services, which is a contract provider for Berks County Children and Youth Services. Ms. Perez testified that she worked with . . . Appellant and his son, [S.J.], for two to three months. Ms. Perez testified that [S.J.] required services because he is nonverbal and was diagnosed with autism and ADHD. On July 28, 2021, when [S.J.] was ten years old, Ms. Perez had a visit scheduled with [S.J.] and was supposed to also meet with . . . Appellant. However, . . . Appellant called her and said that he would not be coming.
Ms. Perez testified that she went to an apartment located in the 600 block of North Fifth Street in the City of Reading to see [S.J.] and meet with [S.J.]’s caregiver, who was named Patrick. When Ms. Perez arrived, she observed that Patrick was sitting outside on a step. Ms. Perez identified herself and asked to see [S.J.]. Patrick led Ms. Perez to a room that had what she described as a barricade blocking the door.
After Patrick moved a chair, a table, two doors, and a stove out of the way, Ms. Perez was able to enter [S.J.]’s room. Ms. Perez observed what she described as a disheveled bed on the floor and a door that was blocking most of the window to the room. [S.J.] was wearing a t-shirt and nothing from the waist down. Ms. Perez testified that she observed staining in the room and that there was the smell of urine. Ms. Perez did not see any toys, books, or food in the bedroom. Photographs of the apartment were admitted into evidence as Commonwealth’s Exhibits 1-18.
Ms. Perez told Patrick that it was not appropriate to have the items blocking the door to the room and testified that Patrick agreed. Because [S.J.] was not toilet trained, Ms. Perez made sure that he had a dry diaper as well as a snack and a drink before she left. After leaving the apartment and speaking to her
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supervisor Ms. Perez returned and asked to see [S.J.] again. After Patrick led Ms. Perez back in, she observed that the barricade was up again.
Ms. Perez testified that she then spoke to . . . Appellant and informed him of the situation with the barricade. Ms. Perez testified that . . . Appellant, whom she described as irate, said that he told Patrick to do that. Ms. Perez testified that . . . Appellant did not give her any more information about Patrick and said that . . . Appellant made no attempt to see his son after she spoke to him. Ms. Perez subsequently removed [S.J.] from the residence and took him to LIFE House in Reading, which is an after-hours facility for Berks County Children and Youth Services.
On cross-examination, Ms. Perez testified that the entire time she was working as [S.J.]’s caseworker, she was aware that . . . Appellant lived in Lititz with his wife and other children, while [S.J.] lived in the apartment in Reading with a caretaker. However, Ms. Perez further testified that she met with . . . Appellant at the apartment in Reading and that . . . Appellant was aware of the physical condition of the apartment and the bedroom of the child.
In addition, Ashley Frey, an emergency duty caseworker for Berks County Children and Youth Services, testified that she spoke to . . . Appellant on the phone the day [S.J.] was removed from the apartment and that . . . Appellant was unwilling to come to Reading or send a different caregiver. . . . Appellant indicated that he was content with the care that [S.J.] was receiving from Patrick and stated that Patrick was caring for the child pursuant to his instructions. . . . Appellant stated that if [S.J.] were a different child, barricading him in the room would not be appropriate. However, because he has special needs, barricading him in the room is necessary. When Ms. Frey tried to discuss why barricading the child in the room was inappropriate, . . . Appellant replied, “Says you.”
Finally, Criminal Investigator (hereinafter “C.I.”) Christopher Santoro of the Reading Police Department testified that as part of his investigation, he executed a search warrant at 631 North Fifth Street, Apartment 1F, in the City of Reading. C.I. Santoro took photographs of the apartment and testified that the child’s bedroom smelled of urine and feces and that there appeared to be dried feces on the walls. C.I. Santoro spoke to . . . Appellant about the conditions in which the child had been living and
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testified that . . . Appellant was aware that the child had been barricaded in the room. . . . Appellant said that he instructed Patrick to do that and said that it was for the child’s own good. When C.I. Santoro commented that he would not have treated his dog in that fashion, . . . Appellant responded, “That is you.”
Trial Ct. Op., 6/22/23, at 3-6 (record citations omitted).
C.I. Santoro also testified that, as part of his investigation, he reviewed
the notes of testimony from S.J.’s dependency hearing, which was conducted
on August 4, 2021. See N.T. Trial, 3/7/23, at 72-73. The transcript from the
dependency hearing was marked as evidence and admitted at trial. Appellant
did not testify on his own behalf or present any evidence.
At the conclusion of trial, the court found Appellant guilty of EWOC. On
April 21, 2023, the trial court sentenced Appellant to a term of 11 1/2 to 23
months’ incarceration, followed by five years of probation. Appellant did not
file a post-sentence motion. Instead, on April 28, 2023, Appellant filed a pro
se notice of appeal. Shortly thereafter, the trial court granted Attorney
Chwiecko’s request to withdraw because Attorney Bispels had entered his
appearance.2
When, as here, counsel filed a petition to withdraw and accompanying
Anders brief, we must first examine the request to withdraw before
addressing any of the substantive issues raised on appeal. Commonwealth
____________________________________________
2 Attorney Bispels complied with the trial court’s order to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal.
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v. Bennett, 124 A.3d 327, 330 (Pa. Super. 2015). An attorney seeking to
withdraw from representation on appeal must:
1) petition the court for leave to withdraw stating that, after making a conscientious examination of the record, counsel has determined that the appeal would be frivolous; ) furnish a copy of the brief to the defendant; and 3) advise the defendant that he or she has the right to retain private counsel or raise additional arguments that the defendant deems worthy of the court’s attention.
Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa. Super. 2013) (en
banc). Pursuant to Santiago, counsel must also:
(1) provide a summary of the procedural history and facts, with citations to the record; (2) refer to anything in the record that counsel believes arguably supports the appeal; (3) set forth counsel’s conclusion that the appeal is frivolous, and (4) state counsel’s reasons for concluding that the appeal is frivolous. Counsel should articulate the relevant facts of record, controlling case law, and/or statutes on point that have led to the conclusion that the appeal is frivolous.
Id., quoting Santiago, 978 A.2d at 361.
In the present case, the brief and motion to withdraw filed by Attorney
Bispels substantially comply with the requirements of Anders and Santiago.
See Cartrette, 83 A.3d at 1032. However, we point out that counsel’s motion
to withdraw and letter to Appellant state the appeal is meritless, rather than
frivolous. See Motion to Withdraw as Counsel, 8/22/23; see also Attorney
Bispels’ Letter to Appellant, 8/22/23. We remind counsel that the correct
standard required to withdraw from representing a client on direct appeal is a
determination that the appeal is frivolous. See Cartrette, 83 A.3d at 1032;
Santiago, 978 A.2d at 361. The two terms are not synonymous. See
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Commonwealth v. Hipps, 274 A.3d 1263, 1271 n.3 (Pa. Super. 2022)
(“Frivolousness and meritless are distinct concepts. [F]rivolous is a slightly
higher standard than lack of merit; an argument may be meritless, but not
frivolous.”) (citations & quotation marks omitted), appeal denied, 288 A.3d
1292 (Pa. 2022); Commonwealth v. Smith, 700 A.2d 1301, 1305 n.10 (Pa.
Super. 1997) (“[A]n appeal is frivolous where it lacks any basis in law or fact.”)
(citation & quotation marks omitted).
Nevertheless, while Attorney Bispels used the term meritless in his
motion and letter to Appellant, he concludes in the Anders brief that there
are “no non-frivolous argument[s]” to support Appellant’s appeal. See
Anders Brief at 19. Thus, we conclude Attorney Bispels’ motion to withdraw
and Anders brief substantially meet the requirements of Anders and
Santiago. Further, Attorney Bispels has provided this Court with a copy of
the letter he sent to Appellant, advising him of his right to proceed with newly
retained counsel or pro se, and to raise any additional points for this Court’s
attention. See Attorney Bispels’ Letter to Appellant, 8/22/23. Thereafter,
Appellant filed both a response and supplemental response raising additional
claims which we will discuss infra.
Thus, we proceed to address the substantive claims presented in the
Anders brief, as well as Appellant’s pro se responses, and then conduct a “full
examination of all the proceedings, to decide whether the case is wholly
frivolous.” Commonwealth v. Yorgey, 188 A.3d 1190, 1196 (Pa. Super.
2018) (en banc) (citation & emphases omitted). If we agree with Attorney
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Bispels’ assessment, “[we] may grant his request to withdraw and dismiss the
appeal[.]” Id. (citation omitted).
As mentioned above, the Anders brief presents two substantive issues
for our review:
1. Whether the evidence at trial was sufficient to support a verdict of guilty of [EWOC?]
2. Whether the verdict of guilty of [EWOC] was contrary to the weight of the evidence[?]
Anders Brief at 7 (some capitalization omitted).
The first issue on appeal challenges the sufficiency of the evidence
supporting Appellant’s EWOC conviction. See Anders Brief at 16. We begin
with our well-settled standard of review:
As a general matter, our standard of review of sufficiency claims 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 participation 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
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defendant’s crimes beyond a reasonable doubt, the . . . convictions will be upheld.
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).
Therefore, 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 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).
Moreover:
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.
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Commonwealth v. Smith, 956 A.2d 1029, 1038 (Pa. Super. 2008) (en
banc).
We also emphasize our commentary in Commonwealth v. Taylor, 471
A.2d 1228 (Pa. Super. 1984), regarding the legislature’s intent in enacting
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 & quotation marks omitted).
Appellant contends that the conditions in which his child, S.J., was found
were necessary and acceptable for S.J.’s protection. See Anders Brief at 16.
Moreover, in his pro se response to the Anders brief, Appellant insists that
the Commonwealth failed to establish the knowing element of EWOC because
“the caretaker [watching S.J.] went way over what [A]ppellant instructed him
to do, [which was only] to place a gate in front of SJ’s door . . . when [the
caretaker had] to take a shower or bath” so that S.J. was not left unattended.
See Appellant’s pro se Answer to Anders, 9/19/23, at 7. He further asserts
that the “Commonwealth did not establish [he] was aware [that] the nature
of his conduct certainly will cause such result[.]” See id. at 8.
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Appellant also argues the Commonwealth failed to establish the
supervising element of the crime because Patrick “was the one supervising
[S.J.] while [A]ppellant [was] at work.” See Appellant’s pro se Answer to
Anders at 8. Lastly, Appellant asserts that the Commonwealth never
presented expert testimony to support its claims. See id.
We agree with the trial court’s determination that the “facts, taken
together, were sufficient for [the] court as fact-finder to find Appellant guilty
of” EWOC. Trial Ct. Op. at 6.
First, Appellant was aware of his duty to protect his son. See Pahel,
689 A.2d at 964. During the dependency hearing,3 Appellant confirmed that
he had been S.J.’s primary caretaker for the seven months prior to the incident
at issue, while S.J.’s biological mother, with whom the child generally resided,
was hospitalized.4 See N.T. Dependency H’rg, 8/4/21, at 27-28.
Second, Appellant was aware that S.J. was in circumstances that could
threaten his physical or psychological welfare. See Pahel, 689 A.2d at 964.
By his own admission, Appellant was not only aware that the caretaker,
Patrick, barricaded S.J. in his bedroom, Appellant had instructed him to do so.
See N.T., Trial, at 44, 56, 70-71. Further, the conditions of the room in which
3 The transcript from the dependency hearing was marked and admitted as
Commonwealth Exhibit 19 at Appellant’s trial. See N.T., Trial, at 5, 80.
4 Appellant and S.J.’s mother were not together, and he explained that his “actual wife doesn’t want to deal with” S.J. See N.T., Dependency H’rg, at 26.
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S.J. resided were unsanitary, if not deplorable. The child slept on a “heavily”
stained and soiled mattress and box spring, with no sheets, and only a
blanket. See id. at 46. The room was dirty and smelled “strongly of human
feces and urine.” Id. at 45. The only window was “completed boarded over”
so there was no “airflow” and, in July, the room was “extremely warm.” Id.
at 46. Moreover, when Case Manager Perez first entered S.J.’s room, S.J. was
wearing “just a T-shirt and nothing from the waist down.” Id. at 15.
C.I. Santoro testified that when he “confronted [Appellant] with the
conditions of the home and the barricading[,]” Appellant admitted he knew of
“those conditions” and was “the one who actually directed the caretaker [how]
to care” for S.J. N.T., Trial, at 75-76. Further, Case Manager Perez testified
that Appellant was aware of the “physical conditions of the home and the
bedroom of the child[,]” because he was present during prior visits when they
discussed those conditions. Id. at 37, 39. She explained that although her
team considered consulting with “other agencies[, Appellant] did not want to
put any services in place for assistance that he had to be in the home for.”
Id. at 40.
Third, Appellant failed to act to protect S.J.’s welfare. See Pahel, 689
A.2d at 964. As explained above, Appellant was aware of the deplorable
conditions in the home where his child was residing, and, in fact, directed
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S.J.’s caretaker to barricade him in the room.5 See N.T., Trial, at 44, 56, 70-
71. Emergency Duty Caseworker Frey testified that when she spoke with
Appellant after taking custody of S.J., she “addressed with him the concerns
and the conditions of the home.” Id. at 56. She noted “[h]e did not seem
surprised by any of it at all[, except] he denie[d] that [S.J.] would be left
without food or water.” Id. Further, as noted above, Case Manager Perez
testified that during previous visits, she and Appellant “discussed” the
conditions of the home as “being problematic[,]” and Appellant “talked about
cleaning it up.” Id. at 40. During the dependency hearing, Case Manager
Perez explained that while she never observed a barricade in front of S.J.’s
room during her prior visits, those visits were all announced ─ the visit on
July 28, 2021, was unannounced. See N.T., Trial, at 10; N.T., Dependency
H’rg, at 15.
As for Appellant’s claim that the Commonwealth failed to provide expert
testimony, such testimony is not required. The crime of EWOC does not
require proof that the child suffered a definitive injury. Rather, the
Commonwealth must prove the defendant “knowingly endanger[ed] the
welfare of the child[,]”6 or, in other words, placed the child in circumstances ____________________________________________
5 With regard to Appellant’s claim that he was unaware his conduct would “cause such result[,]” we reiterate that the Commonwealth is only required to prove Appellant “knew he was endangering the child’s welfare, not whether [he] knew that he would cause any particular result.” See Smith, 956 A.2d at 1038. See also Appellant’s pro se Answer to Anders, 9/19/23, at 8.
6 18 Pa.C.S. § 4304(a)(1).
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“that could threaten the child’s physical or psychological welfare.” Pahel, 689
A.2d at 964. Accordingly, the Commonwealth’s failure to provide expert
testimony is of no moment, and we conclude the Commonwealth presented
sufficient evidence to support the trial court’s verdict.
The second issue in the Anders brief challenges the weight of the
evidence supporting Appellant’s conviction. See Anders Brief at 18.
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
Here, the trial court found Appellant waived his weight claim. See Trial
Ct. Op. at 7. We agree. Pennsylvania Rule of Procedure 607 dictates that a
challenge to the weight of the evidence must be raised with the trial judge
either:
(1) orally, on the record, at any time before sentencing;
(2) by written motion at any time before sentencing; or
(3) in a post-sentence motion.
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Pa.R.Crim.P. 607(A)(1)-(3). “An appellant’s failure to avail himself of any of
the prescribed methods for presenting a weight of the evidence issue to the
trial court constitutes waiver of that claim.” Commonwealth v. Cox, 231 A.3d
1011, 1018 (Pa. Super. 2020). See also Pa.R.Crim.P. 607, Cmt. (“The
purpose of this rule is to make it clear that a challenge to the weight of the
evidence must be raised with the trial judge or it will be waived.”). Because
Appellant did not advance a weight claim at sentencing or in a post-sentence
motion, his challenge on appeal is waived for our review.
Next, we address three additional claims Appellant presented in his pro
se answer and supplemental response to the Anders brief: (1) Appellant’s
trial and appellate counsel provided ineffective assistance; (2) the parental
justification defense7 excused his actions; and (3) the Commonwealth failed
to demonstrate that he engaged in “a course of conduct” to support the
grading of his offense as a third-degree felony. See Appellant’s pro se Answer
to Anders at 2-5, 9-10; Appellant’s pro se Supplemental Response Regarding
Anders Brief, 11/1/23, at 1-2 (unpaginated).
First, Appellant alleges that both trial counsel (Attorney Chwiecko) and
appellate counsel (Attorney Bispels) rendered ineffective assistance.
Specifically, he contends trial counsel was ineffective for failing to object to or
challenge the sufficiency of the Commonwealth’s evidence supporting his
conviction and for failing to file a post-sentence motion, and faults appellate ____________________________________________
7 18 Pa.C.S. § 509(1).
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counsel for failing to request permission to file a post-sentence motion nunc
pro tunc after entering his appearance. See Appellant’s pro se Answer to
Anders at 2-5, 10; Appellant’s pro se Supplemental Response Regarding
Anders Brief at 1-2 (unpaginated).
“[A]s a general rule, a petitioner should wait to raise claims of ineffective
assistance of trial counsel until collateral review.” Commonwealth v. Grant,
813 A.2d 726, 738 (Pa. 2002). Our Supreme Court has recognized three
limited exceptions to the general rule: (1) in extraordinary circumstances
where claims of trial counsel’s ineffectiveness are “apparent from the record
and meritorious to the extent that immediate consideration best serves the
interests of justice;”8 (2) where there is good cause shown and unitary review
of the claim is preceded by a waiver of the right to seek review under the
Post-Conviction Relief Act (PCRA);9 and (3) “where the defendant is statutorily
precluded from obtaining subsequent PCRA review[,]” such as, when a
defendant receives a short sentence or a fine for their crimes.10
None of these exceptions apply to the facts before us. Appellant’s claims
are not apparent from the record and meritorious, Appellant has not waived
his right to PCRA review, and the sentence imposed by the trial court does not
statutorily prohibit him from seeking PCRA review. See Holmes, 79 A.3d at ____________________________________________
8 See Commonwealth v. Holmes, 79 A.3d 562, 563 (Pa. 2013).
9 See Holmes, 79 A.3d at 564; see also 42 Pa.C.S. §§ 9541-9545.
10 See Commonwealth v. Delgros, 183 A.3d 352, 361 (Pa. 2018).
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563-64; Delgros, 193 A.3d at 361. See also 42 Pa.C.S. § 9543(a)(1)(i) (to
be eligible for PCRA relief, the petitioner must "plead and prove by a
preponderance of the evidence [they have] been convicted of a crime under
the laws of this Commonwealth and is at the time relief is granted . . . currently
serving a sentence of imprisonment, probation or parole for the
crime"). Accordingly, we decline to entertain the ineffectiveness claims on
direct appeal and dismiss them without prejudice for Appellant to raise the
claims on collateral review.
Next, we address Appellant’s contention that his actions are excused by
the parental justification affirmative defense “because [S.J.] used to escape
several times over the years and [Appellant] acted to safeguard [him].” See
Appellant’s pro se Answer to Anders at 9–10.
The parental justification defense may be raised to excuse “conduct that
is otherwise criminal, but which under the circumstances is socially acceptable
and which deserves neither criminal liability nor even censure.’”
Commonwealth v. Yachimowski, 232 A.3d 861, 866 (Pa. Super. 2020)
(emphasis & citations omitted). As set forth in the Crimes Code, the parental
justification defense requires proof of the following elements:
1) the actor use[d] “force upon or toward the person of another;” 2) the actor “is the parent or guardian or other person similarly responsible for the general care and supervision of a minor or a person acting at the request of such parent, guardian or other responsible person;” 3) “the force is used for the purpose of safeguarding or promoting the welfare of the minor, including the preventing or punishment of his misconduct;” and, 4) “the force used is not designed to cause or known to create a substantial risk
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of causing death, serious bodily injury, disfigurement, extreme pain or mental distress or gross degradation.”
Id., citing 18 Pa.C.S. § 509(1).
Here, Appellant’s claim that his decision to barricade S.J. in his room
was necessary “to safeguard” the child because he had escaped from the home
“several times over the years” does not support the parental justification
affirmative defense. See Appellant’s pro se Answer to Anders at 9-10. S.J.
was not simply locked in his room to prevent him from escaping. Rather, the
testimony established that he was barricaded in the room ─ his doorway was
blocked by a stove, a table, a chair, two additional doors, and a plank. See
N.T., Trial, at 13. Moreover, the condition of the room was filthy, and the only
window was “completely boarded over” so that no light or airflow could come
through. See id. at 45-46. When confronted with the unsafe conditions,
Appellant exhibited no concern for his child. Instead, he was “irate” and
“blam[ed the caseworkers] for the situation.” Id. at 22. Appellant “was not
willing to come to [the home] or send a different caregiver.” Id. at 44. It is
evident that S.J.’s living conditions, particularly the fact he was barricaded in
his bedroom, created a “substantial risk” of “mental distress or gross
degradation.” See Yachimowski, 232 A.3d at 866. Compare id. at 863-64
(father was entitled to parental justification jury instruction when evidence
established parents confined five-year old to her room using baby gates
screwed into wall so that child did not roam house unattended in middle of
the night, but that home was “not in disarray[,]” there was a “potty chair” and
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wipes in child’s room, and parents removed gates when confronted with fire
safety concern).
Lastly, Appellant challenges the grading of his conviction as a third-
degree felony. See Appellant’s pro se Answer to Anders at 9. The offense
of EWOC is generally graded as a first-degree misdemeanor. See 18 Pa.C.S.
§ 4304(b)(i). However, if “the actor engaged in a course of conduct of
endangering the welfare of a child[,]” the offense may be graded as a third-
degree felony. See 18 Pa.C.S. § 4304(b)(ii) (emphasis added). “Although
the EWOC statute does not define ‘course of conduct,’ the phrase is clearly
used in that context to differentiate the penalties for single and multiple
endangering acts.” Commonwealth v. Kelly, 102 A.3d 1025, 1031 (Pa.
Super. 2014) (en banc).
In support of his claim, Appellant argues that “[e]ven [Case Manager
Perez] stated that [the date of the incident] was the first time she saw such
thing[s]” since she started working with them four months prior. See
Appellant’s pro se Answer to Anders at 9 (emphasis added).
We find this argument without merit. Here, it was evident that Appellant
“engaged in a course of conduct” consisting of “multiple endangering acts”
over an extended period. See Kelly, 102 A.3d at 1031. While Case Manager
Perez acknowledged that the first time she observed S.J.’s door barricaded
was during her visit on July 28, 2021, she also explained that was her first
unannounced visit. See N.T., Dependency H’rg, at 15. However, as noted
above, she also testified that during prior visits, she and Appellant “discussed”
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the conditions of the home as “being problematic[,]” and Appellant “talked
about cleaning it up.” N.T., Trial, at 40. See also N.T., Dependency H’rg, at
15 (Case Manager Perez stating “I was always concerned of the quality of the
home and [S.J.’s] quality of life”). However, Appellant was unwilling “to put
any services in place for assistance that he had to be in the home for.” See
N.T., Trial, at 40. Thus, we conclude the Commonwealth presented sufficient
evidence for the trial court to determine Appellant engaged in a “course of
conduct” of endangering the welfare of his child to support the grading of the
offense as a third-degree felony.11 See Commonwealth v. Barkman, 295
A.3d 721, 735-36 (Pa. Super. 2023) (determining “confluence of
circumstances strongly suggested an ongoing pattern of neglect, not merely
a momentary state of affairs[,]” to support grading of EWOC as third-degree
felony when if it could be “reasonably inferred” that “unsanitary and
deplorable conditions” in home “developed over a period of days, weeks or
months”).
Consequently, we agree with Attorney Bispels’ determination that the
appeal is frivolous, and the pro se claims raised by Appellant warrant no relief.
Moreover, our independent review of the record reveals no non-frivolous
issues to be raised on appeal. See Yorgey, 188 A.3d at 1196. Therefore, we
11 We note, too, that Appellant was charged with the crime as a third-degree
felony, and the Commonwealth explicitly argued that Appellant engaged in a “course of conduct” in its closing before the court entered its verdict. See Criminal Information, 12/16/21; N.T., Trial, at 83-84.
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affirm the judgment of sentence and grant Attorney Bispels’ petition to
withdraw.
Judgment of sentence affirmed. Petition to withdraw as counsel
granted.
Judgment Entered.
Benjamin D. Kohler, Esq. Prothonotary
Date: 12/18/2023
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