Com. v. Kerstetter, B.

• Court: Superior Court of Pennsylvania
• Decided: April 27, 2020
• Docket: 1367 MDA 2019
• Status: Unpublished

Opinion

J-S17013-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : BRENDA L. KERSTETTER : : Appellant : No. 1367 MDA 2019

Appeal from the Judgment of Sentence Entered June 12, 2019 In the Court of Common Pleas of Snyder County Criminal Division at No(s): CP-55-CR-0000342-2018

BEFORE: PANELLA, P.J., STABILE, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY PANELLA, P.J.: FILED: APRIL 27, 2020

Appellant, Brenda Kerstetter, appeals from her judgment of sentence

entered by the Court of Common Pleas of Snyder County for endangering the

welfare of children and harassment. We affirm.

Appellant has a commercial driver’s license and, for several years, drove

a school bus to bring children to a vacation bible school at Kreamer Bible

Baptist Church in Snyder County. On June 15, 2018, Appellant was

transporting a busload of children to the bible school. Those children included

Appellant’s daughter, Alisha Kerstetter, as well as 14-year-old Jenay Aikey

and Jenay’s boyfriend, 16-year-old Jonathan Schlief. Appellant was also

driving children from a daycare and their two adult chaperones to the bible

school. J-S17013-20

During the bus ride, Alisha admonished Jenay for holding hands with

Jonathan as that was against the rules of the bible school. This quickly

escalated into an altercation, with Jenay grabbing Alisha by the hair. One of

the chaperones from the daycare alerted Appellant to the fact that there was

an incident occurring towards the rear of the bus.

Appellant stopped the bus alongside a back country road. She walked

to the back of the bus, grabbed Jenay by the hair and pulled her into the aisle

of the bus. Jenay, in turn, grabbed Appellant’s hair and began yelling and

cursing. Appellant pulled Jenay by the hair to the front of the bus, removed

her from the bus and closed the bus’s doors. Appellant did not ask either of

the daycare chaperones for assistance, nor did they intervene. However,

Jonathan asked to leave the bus so that Jenay would not be left alone.

Appellant complied, but before letting Jonathan off the bus, Appellant told him

that he should stay away from girls like Jenay.

Appellant drove away, leaving Jenay and Jonathan on the side of the

road. Although Jonathan had a cell phone, he testified that he did not have

good service where Appellant had left them. Both Jenay and Jonathan testified

that they did not know where they were, but began walking to try “to find a

road [they] knew to go home.” N.T. Trial, 2/26/19, at 65.1

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1 The area where Appellant left Jenay and Jonathan was described as “a village” with some houses. N.T. Trial, 2/26/19, at 36. Appellant described it in her statement to the police as “in the middle of nowhere.” Id. at 30.

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Appellant did not call anyone at that time. Rather, Appellant transported

the rest of the children and the two adult chaperones to the bible school at

the church. She then retrieved some more children from a different daycare

and returned to the church. Once there, Appellant called Jenay’s mother, Kelly

Aikey, to inform her about what had transpired on the bus. Ms. Aikey testified

that Appellant would not tell her the location of her daughter, so she hung up

on Appellant. Before hanging up, however, Ms. Aikey asked if Jonathan was

with her daughter and Appellant responded that he was.

Eventually, Ms. Aikey was able to reach Jonathan on his phone. She

testified that “[Jonathan] had no idea where he was, neither did Jenay, neither

did I” but “after about 25 minutes I finally found them.” See id. at 41. At that

point, Jenay and Jonathan were almost two and one-half miles from the spot

where Appellant had left them. See id. at 25. Ms. Aikey and Jenay reported

the incident to police.

Appellant was charged with endangering the welfare of children,

recklessly endangering another person, disorderly conduct and the summary

offense of harassment. Following a trial on February 26, 2019, a jury found

Appellant guilty of endangering the welfare of children. The trial court found

Appellant guilty of harassment. On June 12, 2019, Appellant was sentenced

to one year of probation for the endangerment of children conviction and 90

days of probation for the harassment conviction. Appellant filed a post-

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sentence motion, which the trial court denied on August 13, 2019. This timely

appeal followed.2

Appellant first argues that the evidence was insufficient to support her

conviction for endangering the welfare of children. This claim fails.

“Evidence presented at trial is sufficient when, viewed in the light most

favorable to the Commonwealth as verdict winner, the evidence and all

reasonable inferences derived therefrom are sufficient to establish all

elements of the offense beyond a reasonable doubt.” Commonwealth v.

Blakeney, 946 A.2d 645, 651 (Pa. 2008) (citation omitted). The

Commonwealth may sustain its burden entirely by circumstantial evidence and

the jury, which passes upon the weight and credibility of each witness’s

testimony, is free to believe all, part or none of the evidence. See

Commonwealth v. Ramtahal, 33 A.3d 602, 607 (Pa. 2011).

The offense of endangering the welfare of children is defined by 18

Pa.C.S.A. § 4304 (a)(1), which provides:

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 ____________________________________________

2 Appellant’s notice of appeal stated that she is appealing from the “verdict of the trial held on February 26, 2019, and specifically from its finding of guilt for Count 1, Endangering the Welfare of Children.” Notice of Appeal, 8/19/19, at 1. We remind counsel that in criminal cases, “appeals lie from judgment of sentence rather than from the verdict of guilt.” Commonwealth v. O’Neil, 578 A.2d 1334, 1335 (Pa. Super. 1990). However, because the trial court entered a judgment of sentence for the endangering the welfare of children count, which Appellant noted in her notice of appeal, we see no procedural impediment to reaching the issues raised by Appellant in this timely appeal.

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offense if he knowingly endangers the welfare of the child by violating a duty of care, protection or support.

Id. Therefore, to sustain a conviction under Section 4304(a)(1), the

Commonwealth must prove that a defendant: (1) was supervising the welfare

of a child under the age of 18; (2) knowingly endangered the welfare of the

child; and (3) violated a duty of care to the child. See id. In determining the

Commonwealth had presented sufficient evidence to do so here, the trial court

stated:

The Commonwealth presented sufficient evidence that [Appellant] was a person supervising the welfare of children under the age of eighteen in her capacity as the bus driver for the vacation bible school. Likewise, the jury received sufficient evidence that [Appellant] endangered the welfare of [Jenay] Aikey when she removed [her] from the bus and allowed [Johnathan Schlief] to leave the bus on a country road several miles from home or the bible school, without notifying anyone, including officials at the bible school, parents or authorities.

The jury also received sufficient evidence and the reasonable inferences derived from that evidence to find [Appellant] acted knowingly. [Appellant] drove the vacation bible school bus. She had a history as a school bus driver. From this evidence the jury could find that she was aware of her duty towards the children on the bus. The actions she took in throwing [Jenay] Aikey off the bus on a country road and not notifying anyone about her actions could not be reasonably expected to protect the child’s welfare.

Trial Court Opinion, 8/13/19, at 4.

Appellant now argues that the trial court improperly found that the

Commonwealth had proven the intent element of the offense because she did

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not knowingly endanger the welfare of Jenay or Jonathan. This Court has

stated that in order to show that a person knowingly endangered the welfare

of a child, the Commonwealth must establish that the person: (1) was aware

of her duty to protect the child; (2) was aware that the child was in

circumstances that could threaten the child’s physical or psychological

welfare; and (3) failed to act or took actions so meager that they could not

reasonably have been expected to protect the child’s welfare. See

Commonwealth v. Smith, 956 A.2d 1029, 1038 (Pa. Super. 2008).

Appellant first claims that the Commonwealth did not meet this standard

here because her actions did not cause Jenay or Jonathan any physical or

psychological harm. This argument, however, ignores the fact that in order to

establish that Appellant knowingly endangered the welfare of Jenay and

Jonathan, the Commonwealth needed to show only that Appellant was aware

that she placed Jenay and Jonathan in circumstances that could have

threatened their physical or psychological welfare. Contrary to Appellant’s

argument, it is clear the jury could have reasonably inferred that Appellant

was aware that abandoning Jenay and Jonathan on the side of the road, in the

“middle of nowhere” and miles from home, could have threatened their

physical or psychological welfare.

Appellant also argues that there was insufficient evidence to convict her

of endangering the welfare of Jenay and Jonathan because she was simply

trying to protect her daughter and the other children on the bus and merely

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made a “mistake in judgment” in trying to accomplish that by removing Jenay

from the bus. Appellant’s Brief at 20. In making this argument, Appellant relies

on Commonwealth v. Pahel, 689 A.2d 963 (Pa. Super. 1997), and in

particular, the following language from that decision:

Utilizing a common sense of community approach to interpret the specific intent element of the statute, we find implicit recognition that parents at times can make mistakes in judgment and that their children may be harmed as a result. However, for such mistakes to rise to the level of criminal culpability, parents must knowingly allow their children to be at risk with awareness of the potential consequences of their actions or failure to act.

Id. at 965 (Pa. Super. 1997) (citation omitted).

Appellant’s reliance on Pahel is misplaced. In Pahel, a child had

swelling around his nose and discoloration under both eyes. The mother

waited three days before seeking medical attention and was consequently

charged with, and subsequently convicted of, endangering the welfare of her

child. In reversing that conviction, this Court found that there was not

sufficient evidence to show the mother knew the delay in seeking medical

attention for her child created a risk, with an awareness of the potential

consequences, to the child’s welfare. Pahel, 689 A.2d at 967.

The circumstances here differ significantly from those in Pahel.

Appellant removed one child from her bus and allowed another child to exit

that bus and then purposefully drove away from them, leaving them on the

side of an unfamiliar country road. She now claims she did so as a means of

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protecting her daughter and the other children on the bus. However, if

Appellant was truly concerned for the safety of the other children on the bus,

there were other courses of action she could have taken. She could have asked

the other two adults on the bus for help or she could have promptly called the

police, the pastor at the vacation bible school or the parents of Jenay or

Jonathan.

Appellant did none of those things. Instead, she left Jenay and Jonathan

at an undesignated stop on a back road and then drove away without calling

anyone to let them know where the children were. Utilizing a common sense

of the community approach, we find that it was certainly reasonable for the

jury to have inferred that Appellant knew these actions created a risk to the

welfare of Jonathan and Jenay.

To be clear, we do not in any way condone Jenay’s behavior. We have

great empathy for people charged with supervising the welfare of children -

whether it be parents/guardians, teachers or bus drivers - who are confronted

with situations involving children acting in an unruly manner. However, it is

the duty of the supervisory figure to respond to those situations in a way that

does not place the children in their care at risk of harm. A jury could

reasonably find that abandoning two children on the side of a country road

without notifying anyone of their whereabouts a violation of that duty. As

such, we agree with the trial court that there was sufficient evidence to sustain

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the jury’s finding that Appellant was guilty of endangering the welfare of Jenay

and Jonathan.

Next, echoing the arguments she made above, Appellant asserts that

her conviction for endangering the welfare of children was against the weight

of the evidence. This claim also fails.

“The weight of the evidence is exclusively for the finder of fact who is

free to believe all, part or none of the evidence and to determine the credibility

of witnesses.” Commonwealth v. Small, 741 A.2d 666, 672 (Pa. 1999)

(citation omitted). When considering a claim that the verdict is against the

weight of the evidence, a “trial court should award a new trial on this ground

only when the verdict is so contrary to the evidence as to shock one’s sense

of justice.” Commonwealth v. Chamberlain, 30 A.3d 381, 396 (Pa. 2011)

(citation omitted).

Appellate review of a weight claim is not a reevaluation of the underlying

question of whether the verdict is against the weight of the evidence. See

Commonwealth v. Champney, 832 A.2d 403, 408 (Pa. 2003). Rather, our

standard of review is limited to determining whether the trial court palpably

abused its discretion in concluding that the verdict was or was not against the

weight of the evidence. See id. We will find an abuse of discretion only if the

trial court misapplied the law, reached a manifestly unreasonable judgment

or based its decision on partiality, prejudice, bias or ill-will. See

Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013).

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In finding that Appellant’s verdict was not against the weight of the

evidence, the trial court pointed to the Commonwealth’s evidence that it had

referenced in rejecting Appellant’s sufficiency claim. Based on that evidence,

including Appellant’s actions in “throwing [Jenay] off the bus on a country

road and not notifying anyone about her actions,” the trial court concluded

that the verdict in no way shocked its sense of justice. Trial Court Opinion,

8/13/19, at 4.

Appellant does not argue, much less establish, how the trial court

abused its discretion in reaching this conclusion. Instead, Appellant merely

recycles her underlying argument that the verdict, contrary to what the trial

court found, was in fact against the weight of the evidence. Such an argument

misconstrues our limited standard of review of a trial court’s decision that the

verdict was not against the weight of the evidence. See Champney, 832 A.2d

at 408. We look only to see if the trial court abused its discretion, and if we

find that it did not, as in the instant case, the trial court’s decision must stand.

See id. This claim warrants no relief.

Appellant asserts in her final claim that the trial court abused its

discretion by not allowing defense counsel to recall “certain witnesses” to the

stand for further cross-examination during her case-in-chief. Appellant’s Brief

at 23. This claim also fails.

In the first instance, Appellant’s very sparse argument regarding this

claim fails to identify exactly which witnesses she now asserts the trial court

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should have allowed her to recall. This Court has repeatedly reminded

appellants that it is not our “duty to comb through the record seeking the

factual underpinnings of [their] claim.” Commonwealth v. Samuel, 102 A.3d

1001, 1005 (Pa. Super. 2014). Appellant also does not attempt to explain to

this Court why she wished to recall the unidentified witnesses. Given

Appellant’s complete failure to develop her claim in any meaningful way, we

have no reservation in finding that Appellant has waived her claim. See

Commonwealth v. Love, 896 A.2d 1276, 1287 (Pa. Super. 2006) (stating

that claims that are not sufficiently developed are waived).

Even if not waived, we would find the claim to be without merit. In its

opinion, the trial court identified the witnesses defense counsel wished to

recall as Jenay and Ms. Aikey. Counsel wanted to recall them after the

Commonwealth had rested its case and after the defense had presented its

case in order to ask Jenay and Ms. Aikey about allegedly inconsistent prior

statements they had made to the investigating police officer. The

Commonwealth objected. In sustaining the objection, the trial court noted that

defense counsel had ample opportunity to ask Jenay and Ms. Aikey about any

prior inconsistent statements while cross-examining them during the

Commonwealth’s case-in-chief.

In her brief to this Court, Appellant does not suggest that defense

counsel was prevented in any way from asking Jenay and Ms. Aikey - or any

other witness for that matter - about statements they had previously made to

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the police during his cross-examination of them. Instead, Appellant asserts,

without further explanation, that “the trial court initially told counsel he would

allow the witnesses to be recalled … [and counsel] relied on this ruling and it

was an abuse of discretion for the trial court to reverse its earlier ruling.”

Appellant’s Brief at 24.

As the Commonwealth points out, however, the trial court consistently

ruled that it was not going to allow defense counsel to recall any witnesses to

ask them about prior statements to the police. The record reflects that it was

the court’s position all along that defense counsel had the opportunity to ask

those questions during his cross-examination of those witnesses and the court

was not going to grant counsel a second chance to do what he could have

done at that time. See N.T. Trial, 2/26/19, at 182 (telling defense counsel

that “if you wish to recall them for further cross examination, I’ll permit you

to do that. If you’re going to cross[-] examine them on their prior statements,

you should have done that in your cross before.”); see id. at 195-99 (denying

defense counsel’s attempt to recall witnesses to question them about prior

statements made to the investigating officer because counsel had the

opportunity to do that during cross-examination).

Therefore, even if Appellant’s claim was not waived, we would find it

was without merit. Appellant has simply not shown that the trial court abused

its discretion by not allowing defense counsel to recall witnesses to ask them

questions he had the opportunity to ask when cross-examining them during

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the Commonwealth’s case-in-chief. See Commonwealth v. Chambers, 685

A.2d 96, 109 (Pa. 1996) (stating that the decision of whether to permit a party

to recall witnesses and present additional evidence is within the sound

discretion of the trial court and will not be reversed absent an abuse of that

discretion). No relief is due.

Judgment of Sentence Affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 04/27/2020

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