J-S53023-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
FARUQ ROBINSON
Appellant No. 3377 EDA 2017
Appeal from the Judgment of Sentence Entered September 15, 2017 In the Court of Common Pleas of Philadelphia County Criminal Division at No.: CP-51-CR-0004473-2013; CP-51-CR-0004877-2013; CP-51-CR-0004834-2013; CP-51-CR-0004879-2013; and CP-51-CR-0004878-2013
BEFORE: OLSON, STABILE, and NICHOLS, JJ.
MEMORANDUM BY STABILE, J.: FILED DECEMBER 31, 2019
Appellant Faruq Robinson appeals from the September 15, 2017
judgments of sentence entered in the Court of Common Pleas of Philadelphia
County (“trial court”), following his jury convictions for involuntary deviate
sexual intercourse (“IDSI”) with a complainant who is less than 16 years of
age, unlawful contact with minors, corruption of minors, and four counts of
endangering the welfare of children (“EWOC”). 1 Upon careful review, we
affirm.
____________________________________________
1 18 Pa.C.S.A. §§ 3123(a)(7), 6318, 6301(a), 4304(a)(1), respectively. J-S53023-19
The facts and procedural history of this case are undisputed. 2 As a
result of sexually abusing his niece and physically abusing his four daughters,
Appellant was charged, inter alia, with the foregoing crimes. On July 11, 2016,
Appellant filed a pretrial motion seeking to suppress “any and all statements”
he made to law enforcement. Suppression Motion, 7/11/16 (unpaginated).
In support, Appellant asserted that the police questioned him without his
consent or without obtaining from him a waiver of his right against self-
incrimination. As a result, Appellant argued that “any statements obtained
from [him] were neither knowing, voluntary or authentic.” Id. at ¶ 4.
On May 22, 2017, the trial court conducted an evidentiary hearing on
Appellant’s suppression motion. At the hearing, the Commonwealth offered
the testimony of Special Agent Robert Walker of the United States Secret
Service. Agent Walker testified that Appellant was not under arrest at the
time of the interview. N.T. Hearing, 5/22/17 at 14. Agent Walker further
testified that he read Appellant his Miranda3 rights prior to the interview. Id.
at 15. Counsel for the Commonwealth rested, believing that Agent Walker’s
testimony was sufficient to establish Appellant’s waiver of his right against
self-incrimination. The trial court disagreed and granted Appellant’s
suppression motion. The Commonwealth immediately attempted to reopen
the hearing but was denied on the condition that it may do so if it provided
2Unless otherwise specified, these facts come from the trial court’s October 23, 2018 opinion filed pursuant to Pa.R.A.P. 1925(a). 3 Miranda v. Arizona, 384 U.S. 436 (1966).
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case law to the trial court showing that the testimony of Agent Walker was
sufficient to show a waiver of Miranda rights. That evening, the
Commonwealth filed a written motion to reopen the suppression hearing,
asserting that reopening was in the interest of justice. The following morning,
prior to the start of trial, the trial court conducted a hearing on the
Commonwealth’s motion at which counsel for the Commonwealth stated:
this is a case where the allegation is [Appellant] walked into special victims after having requested to give a statement and to undergo a polygraph examination, was given the polygraph examination, was given his Miranda warnings and waived his Miranda warnings and at the conclusion said, ‘I licked this child’s vagina.
N.T. Hearing, 5/23/17 at 8. Based on this explanation, the trial court found
that there were questions surrounding Appellant’s custodial status at the time
of the polygraph test. Further, the court found that there was an assertion
that Appellant made a confession to the sexual assault of a child. Thus, the
trial court, in its discretion, found that it was in the interest of justice to allow
the reopening of the suppression hearing to hear supplemental testimony.
At the supplemental hearing, the Commonwealth once again introduced
the testimony of Agent Walker, who testified that Appellant arrived for the
polygraph test on his own volition, without handcuffs or any type of restraints,
and was not placed in restraints of any kind throughout the test. Id. at 18-
19. Moreover, Agent Walker’s testimony indicated that Appellant was offered
breaks or cessation of the test at Appellant’s request. Agent Walker also
detailed his demonstration of Appellant’s Miranda rights to him and
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Appellant’s voluntary waiver of those rights prior to the test. The trial court
thus determined that the polygraph test performed by Agent Walker “did not
amount to a custodial interrogation.” Trial Court Opinion, 10/23/18 at 13.
The court found that “there is no evidence on the record to suggest that
[Appellant] was in custody during this interview because his freedom was in
no way restricted during the course of the polygraph test and thus Miranda
warning were not necessary.” Id. at 13-14.
A jury trial was conducted on May 23, 2017 at which the Commonwealth
called to the stand Appellant’s niece, his four daughters and Agent Walker,
among others. His niece, C.M. (“Victim 1”), testified that, on December 31,
2008, when she was fourteen years old, she attended a New Year’s Eve party
at Appellant’s residence located on 2949 North 13th Street in Philadelphia.
Id. at 62-64. Victim 1 testified that Appellant woke her up in the early hours
of January 1, 2009, and ushered her downstairs to the kitchen where he asked
her to remove her pants and panties. After Victim 1 acquiesced to his demand
to spread her legs, Appellant performed oral sex on her. Later in the morning
of January 1, 2009, Victim 1 notified her aunt—Appellant’s wife C.R.—about
what Appellant had done. Later that day, Victim 1, accompanied by her
parents, went to the Philadelphia Police Department’s Special Victim’s Unit
(“SVU”), where she told Detective Norma Serrano that Appellant sexually
abused her.
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Appellant’s step-daughter, A.B. (“Victim 2”), the eldest of his four
daughters, 4 testified to the punishments that she and her sisters received
from Appellant. N.T. Trial, 5/23/17 at 91-94. Victim 2 and her sisters moved
out of Appellant’s house at 2949 North 13th Street in Philadelphia,
Pennsylvania, when she was fifteen years old. The children went to live with
their grandparents about a week after their mother passed away in the
summer of 2012. Victim 2 testified that when she and her sisters still lived
with Appellant, he would often force them into pushup position and strike them
with belts, wooden bed slats, extension cords, poles, or virtually anything
Appellant could get his hands on. Sometimes the beatings would occur while
the girls were not wearing clothes. Because of those beatings, Victim 2 had
welts and bruises on her body, often for minor rule violations. Describing the
beatings by Appellant, Victim 2 testified, “[i]t seemed like it was a game, like
it was fun for him to do.” Id. at 111.
Victim 2 testified to three separate instances in which she was
hospitalized because of Appellant’s conduct. Describing the first instance of
hospitalization when she was in eighth grade, Victim 2 testified: “[w]e were
all getting in trouble because somebody made lemonade in the water bottle
and nobody told who did it. . . . Everybody was in a push-up position and we
were all getting in trouble. . . . I got pushed into the radiator and a gash in
4Victim 2 is Appellant’s step-daughter whereas the other three (Victims 3, 4 an 5) are his biological daughters. N.T. Trial, 5/23/17 at 92, 115; N.T. Trial, 5/24/17 at 43, 59.
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my head. . . . I don’t know who did it. I know I got pushed into the radiator.”
Id. at 95-96. Describing the second instance requiring hospitalization, Victim
2 testified:
We were told to fold a bunch of bags of clothes. I don’t know how many bags of clothes, it was a lot. It filled up most of the front room. We were folding all night and we were getting tired so we ended up falling asleep on the bags. The next morning [Appellant] came downstairs and started beating everybody. I ran into the kitchen because I couldn’t take the hits. I ran into the kitchen and hid under the table. He flipped the table on my hand. . . . He was still trying to get to me with the belt.
Id. at 97-98. As a result of that incident, Victim 2 had two broken fingers.
Victim 2 then testified to the third incident resulting in her hospitalization: “I
went up to the third-floor bathroom, a place where nobody even uses, and I
was getting hit. I don’t know with what, but I was getting hit, and I kicked
the bathroom pole and it went into my foot.” Id. at 101. Victim 2 testified
that it was her mother who took her to the hospital. Id. at 97-100. Victim 2
further testified that, before she went to the hospital, Appellant told her “to
say we were playing it was an accident.” Id. at 97-100.
Appellant’s daughter, I.B. (“Victim 3”), the second oldest of his
daughters, testified that she lived with him until the girls moved out when she
was thirteen. When examined as to whether the beatings happened to her
specifically, or to all of the girls, Victim 3 testified: “It was usually all four of
us, unless it was something like, that one of us did individually, like a bad
grade or something like that. But usually just all of us.” Id. at 119. Victim
3 testified that all of the girls were beaten with broomsticks, wooden panels,
belts, and a bat. She also stated that the girls were hit all over their bodies.
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Victim 3 testified to the visible bruising and welts left on her and her sisters
because of Appellant’s punishments. Victim 3 further testified to Victim 2’s
three hospitalizations involving the gash from the radiator, the table breaking
her fingers, and the foot injury. Victim 3 finally testified to a time when
Appellant hit her with a braided belt, resulting in the skin being taken off her
face. Id. at 119-20.
The second youngest of Appellant’s daughters, C.B. (“Victim 4”),
testified that she lived with her father until she was about eleven years old.
Victim 4 testified that the girls were often forced into pushup position by
Appellant, where they would be hit with metal spoons, extension cords, bats,
and wooden bed slats. Victim 4 further testified that an example of a standard
punishment the girls faced would be a beating with a wooden panel if they did
not clean their room. Victim 4 also testified: “We had to get in the shower
and got in trouble in the shower. . . . He had a belt and we got hit while the
shower was running.” N.T. Trial, 5/24/17 at 73. The girls were not wearing
clothing during beatings in the shower. The frequency of the abuse, according
to Victim 4’s testimony, was “twice a week, two, three times a week.” Id. at
66. Because of the beatings, Victim 4 testified to the bruising on the girls’
bodies as “red marks or sometimes blue, purple if it was that bad.” Id. at 75.
Victim 4 recounted that she shared the abuse with her first-grade teacher
because “I couldn’t sit down because bruises on my legs. She asked me what
happened, like why was—why I couldn’t sit down. I told her and she looked
at the bruises and she took me to the principal and they called DHS.” Id. at
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78. Victim 4 also testified to and confirmed Victim 2’s three hospitalizations.
In specific, Victim 4 recounted that she “heard a table fall and my sister came
out with her hand bleeding. Her fingers were, like hanging off. My mom took
her to the hospital.” Id. at 67.
Appellant’s youngest daughter, B.B. (“Victim 5”), testified that she lived
with her father until she was nine. Victim 5 testified: “We would get beat
mostly with belts,” but also mentioned beatings with broomsticks and bats.
Id. at 46. Victim 5 also testified: “Usually, I would get in trouble, like, it would
be all of us together. I never got in trouble separately.” Id. at 48. According
to Victim 5, the girls were hit “everywhere” and that these beatings would
occur “every other day,” sometimes with clothing on, sometimes not. Id. at
46-47, 54. Describing the welts left on her body because of Appellant’s
punishment, Victim 5 testified that sometimes she had to wear different
clothing to hide them. Victim 5 also testified to Victim 2’s hospitalizations,
mentioning specifically the gash on Victim 2’s forehead from the radiator and
her broken fingers. Regarding the gash on Victim 2’s forehead, Victim 5
testified that Victim 2 was alone in the room with Appellant when it happened.
Finally, Victim 5 recalled an incident when “a roach had crawled in the cereal”
and Appellant told them “to eat it.” Id. at 52.
The Commonwealth next called to the stand Agent Walker, who testified
that, on April 9, 2009, he was brought in to perform a polygraph test on
Appellant. N.T. Trial, 5/24/17 at 146-48. The polygraph test took place in
the Episcopal Hospital interview room, in the SVU. Appellant drove himself to
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the interview. 5 Id. at 147. Agent Walker testified that Appellant came
voluntarily and waived his Miranda rights, written and orally, prior to taking
the polygraph test. The written waiver, however, was not available at trial.
Agent Walker testified: “[i]t was a completely voluntary process, he was
allowed to leave at any time, he’s allowed to request counsel at any time.”
Id. at 156. Agent Walker further testified that, at the conclusion of the
polygraph test, Appellant voluntarily signed a handwritten confession, which
reads: “I agree with [Victim 1’s] story. I had no reason to be alone with you
in the kitchen and I put my tongue on your vagina. I made a fucked up
decision and now have to live with it. I am very sorry.” Id. at 151.
In response, Appellant testified on his own behalf. He testified that he
requested an interview with Special Agent Robert Walker of the United States
Secret Service. N.T. Trial, 5/25/17, at 28. Appellant testified that he drove
himself to the polygraph test with Special Agent Walker. Appellant testified
that he was offered breaks at any time, and that he took two breaks during
the interview. When asked whether he was free to leave the polygraph test,
Appellant testified, “absolutely.” Id. at 30. During cross-examination,
Appellant was asked “after they talk to you about what your Miranda
warnings are, you tell them you’re happy to talk to them?” to which Appellant
testified, “Absolutely, yes.” Id. at 31. Appellant testified that he handwrote
5 Appellant also acknowledged that he requested and voluntarily appeared for the interview with Agent Walker and understood that he was free to leave or terminate the interview at any time. N.T. Trial, 5/25/17 at 29-30.
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the confession to performing oral sex on Victim 1. Id. at 35-36. Appellant
also testified that he disciplined his children with a belt for purposes of
punishment for flouting his rules. Id. at 22, 45. He testified that he had seen
the resulting bruises and welts on his children and used cocoa butter to heal
them. Id. at 23.
Appellant also offered the testimony of his younger sister, Sakinah
Alexander, who testified that during the relevant timeframe she did not
observe any injuries on any of the children. Id. at 15. Furthermore, Appellant
called to the stand Dr. Sharon McClain, a mental health clinician at Wedge
Mental Health Clinic. N.T. Trial, 5/24/17 at 160. Dr. McClain testified that
Appellant and “his wife were involved in counseling, family counseling.” Id.
She testified that she had an opportunity to get to know Appellant’s children,
“from the youngest to the oldest.” Id. Dr. McClain testified that after leaving
her employment, she eventually became “fast friends” with Appellant’s family.
Id. at 161. “There were times when I spoke with the children by themselves.
There were problems in school that individually they had been having. So it
went from having them as clients to being best friends.” Id. While having
Appellant’s family as her clients, Dr. McClain was a “mandatory reporter” of
sexual or domestic abuse involving children. Id. She finally testified that she
never reported any abuse with respect to Appellant’s children. Id. Lastly,
Appellant presented his father’s, Daryle Robinson, testimony. Mr. Robinson
testified that during his visits to Appellant’s home, he did not notice any
injuries to any of Appellant’s children. Id. at 166.
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Following trial, on May 30, 2017, the jury found Appellant guilty of IDSI
with a complainant who is less than 16 years of age, unlawful contact with
minors, corruption of minors, and four counts of EWOC. On September 15,
2017, the trial court sentenced Appellant to an aggregate term of 10 to 24
years’ imprisonment. Appellant filed post-sentence motions, which the trial
court denied on September 28, 2017. Appellant timely appealed. 6 Both
Appellant and the trial court complied with Pa.R.A.P. 1925.
On appeal, Appellant raises three issues for our review:
[I.] Did the trial court err by granting Commonwealth’s motion to re-open evidentiary hearing where the Commonwealth intentionally omitted evidence?
[II.] Is the evidence insufficient to prove Appellant guilty beyond a reasonable doubt of [EWOC] where the children were not in circumstances that could threaten their welfare, Appellant did not act or fail to act in protecting their welfare, and use of force was justified corporal punishment?
[III.] Did the trial court err by denying Appellant’s motion for a new trial for the [EWOC] convictions, where the verdict was contrary to the weight of the evidence because any of force was justified corporal punishment?
Appellant’s Brief at 5 (unnecessary capitalizations omitted).
6 Although Appellant filed a notice of appeal within thirty days of the judgment of sentence, Appellant did not separately appeal the judgments of sentence registered under different docket numbers. In Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018), our Supreme Court confronted a situation where a litigant filed a single notice of appeal from an order that resolved issues relating to four different docket numbers and, on that notice of appeal, the litigant listed all four docket numbers. Walker, 185 A.3d at 974. The Walker Court held: “when a single order resolves issues arising on more than one lower court docket, separate notices of appeal must be filed. The failure to do so will result in quashal of the appeal.” Id. at 977. Walker, however, is prospective, and Appellant’s appeal was taken before Walker was decided. Because Walker is inapplicable, we decline to quash the instant appeal.
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We address Appellant’s claims seriatim. Appellant first argues that the
trial court abused its discretion in granting the Commonwealth’s motion to
reopen the suppression hearing. See Appellant’s Brief at 13. Appellant points
out that the Commonwealth intentionally and “deliberately chose to introduce
certain evidence and, more importantly, to omit other evidence.” Id. at 14.
Further, Appellant claims that the Commonwealth did not establish that he
“was not in custody” at the time of the polygraph test. Id. Appellant further
claims that the Commonwealth merely introduced Agent Walker’s statement
that he apprised Appellant of his Miranda rights, but did not introduce any
evidence that Appellant understood the warning or voluntarily relinquished his
right against self-incrimination. Id. at 15. Appellant maintains that the
Commonwealth did not produce any such evidence despite being invited by
the trial court to do so and rested its case. Id.
Pennsylvania law is well-settled:
It is within the trial court’s discretion to allow either side to reopen its case, prior to judgment, to prevent a failure or miscarriage of justice. The admissibility of evidence is a matter solely within the discretion of the trial court. This court will reverse an evidentiary ruling only when a clear abuse of discretion has occurred. The trial court may exclude evidence which is merely cumulative of other evidence.
Commonwealth v. Smith, 694 A.2d 1086, 1091 (Pa. 1997) (quotation and
citations omitted).
Instantly, we cannot conclude that the trial court abused its discretion
in granting the Commonwealth’s motion to reopen the suppression hearing.
As detailed above, the trial court initially granted Appellant’s suppression
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motion, concluding that the Commonwealth failed to establish that Appellant
was given Miranda warnings or that he understood and relinquished the
same. However, soon after, it became apparent that Appellant’s custodial
status was less than clear and that Appellant indeed had requested and
voluntarily appeared for the polygraph test. As a result, the trial court granted
the Commonwealth’s motion for purposes of fleshing out the facts concerning
Appellant’s custodial status and correcting a possible miscarriage of justice by
suppressing Appellant’s confessional statement given to Agent Walker at the
conclusion of the polygraph test. Even if the trial court had not granted the
Commonwealth’s motion, there was sufficient evidence presented at the initial
suppression hearing to suggest that Appellant was not in custody at the time
of the April 9, 2009 polygraph test to trigger a Miranda warning. Accordingly,
Appellant’s first issue does not merit relief.7
We next address Appellant’s challenge to the sufficiency of the evidence.
In this regard, Appellant argues that the evidence “is insufficient to prove that
the children were in circumstances that could threaten their welfare, or that
[Appellant] acted or failed to act in protecting their welfare.” Appellant’s Brief
at 18. Appellant claims that his “actions indicate that, to the contrary, he was
7To the extent Appellant claims that the Commonwealth intentionally withheld evidence concerning his custodial status, such claim is bereft of record support. The record, as recited above, merely demonstrates that the Commonwealth, represented by an inexperienced prosecutor (N.T. Hearing, 5/22/17 at 17) (“I’ve been in this office for four months”), committed a simple error in failing to highlight Appellant’s custodial status when contesting the suppression motion.
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concerned with their welfare as he would always rub cocoa butter on any welts
that they would have.” Id. at 19. Alternatively, Appellant argues that the
evidence is insufficient to establish EWOC because “his conduct was justified
corporal punishment.” Id. at 20.
“A claim challenging the sufficiency of the evidence is a question of law.”
Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000).
The standard we apply in reviewing the sufficiency of the evidence is whether viewing all the evidence admitted at trial in the light most favorable to the verdict winner, there is sufficient evidence to enable the fact-finder to find every element of the crime beyond a reasonable doubt. In applying the above test, we may not weigh the evidence and substitute our judgment for the fact-finder. In addition, we note that the facts and circumstances established by the Commonwealth need not preclude every possibility of innocence. Any doubts regarding a defendant’s guilt may be resolved by the fact-finder unless the evidence is so weak and inconclusive that as a matter of law no probability of fact may be drawn from the combined circumstances. The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. Moreover, in applying the above test, the entire record must be evaluated and all evidence actually received must be considered. Finally, the finder of fact while passing upon the credibility of witnesses and the weight of the evidence produced, is free to believe all, part or none of the evidence.
Commonwealth v. Antidormi, 84 A.3d 736, 756 (Pa. Super. 2014), appeal
denied, 95 A.3d 275 (Pa. 2014).
EWOC is defined in Section 4304, which provides in relevant part that
“[a] parent, guardian or other person supervising the welfare of a child under
18 years of age, or a person that employs or supervises such a person,
commits an offense if he knowingly endangers the welfare of the child by
violating a duty of care, protection or support.” 18 Pa.C.S.A. § 4304(a)(1).
Section 302(b) of the Pennsylvania Crimes Code provides:
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(2) A person acts knowingly with respect to a material element of an offense when:
(i) if the element involves the nature of his conduct or the attendant circumstances, he is aware that his conduct is of that nature or that such circumstances exist; and
(ii) if the element involves a result of his conduct, he is aware that it is practically certain that his conduct will cause such a result.
18 Pa.C.S.A. § 302(b). In Commonwealth v. Sebolka, 205 A.3d 329 (Pa.
Super. 2019), we explained:
This Court has employed a three-prong test to determine whether the Commonwealth’s evidence is sufficient to prove that a defendant knowingly violated a duty of care under Section 4304(a)(1): (1) the accused must be aware of his or her duty to protect the child; (2) the accused must be aware that the child is in circumstances that could threaten the child’s physical or psychological welfare; and (3) the accused either must have failed to act, or must have taken action so lame or meager that such actions cannot reasonably be expected to protect the child’s welfare.
Sebolka, 205 A.3d at 337 (citing Commonwealth v. Smith, 956 A.2d 1029,
1038 (Pa. Super. 2008)) (formatting altered) (emphasis added). In
Commonwealth v. Mack, 359 A.2d 770 (Pa. 1976), our Supreme Court
explained:
The purpose of juvenile statutes, as the one at issue here, is basically protective in nature. Consequently these statutes are designed to cover a broad range of conduct in order to safeguard the welfare and security of our children. Because of the diverse types of conduct that must be circumscribed, these statutes are necessarily drawn broadly. It clearly would be impossible to enumerate every particular type of adult conduct against which society wants its children protected. We have therefore sanctioned statutes pertaining to juveniles which proscribe conduct producing or tending to produce a certain defined result rather than itemizing every undesirable type of conduct. . . . . Thus, statutes such as the one at issue here are to be given meaning by reference to the common sense of the community and the broad protective purposes for which they are enacted.
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Mack, 359 A.2d at 772 (formatting altered; citations and quotation marks
omitted).
Instantly, based upon the evidence presented at trial, as detailed above
and viewed in a light most favorable to the Commonwealth, we agree with the
trial court’s conclusion that the Commonwealth proved beyond a reasonable
doubt that Appellant committed EWOC.
First, it is uncontested that Appellant owed a duty of care to his
daughters and that he breached the duty by repeatedly subjecting them to
physical abuse. Second, the evidence recited earlier demonstrates that
Appellant knowingly placed his daughters in circumstances that could and did
threaten their physical and psychological welfare. Commonwealth v.
Winger, 957 A.2d 325, 329 (Pa. Super. 2008) (In the context of EWOC,
“intent [often] cannot be proven directly but must be inferred from
examination of the facts and circumstances of the case. Therefore, the
Commonwealth is not required to provide direct proof of [a defendant’s] frame
of mind.”) (citations omitted), abrogated on other grounds by
Commonwealth v. Dantzler, 135 A.3d 1109 (Pa. Super. 2016) (en banc).
Appellant’s children, Victims 2, 3, 4, and 5 testified that he struck them—often
when they were forced into a pushup position—with belts, bats, broomsticks,
wooden bed slats, extension cords, poles or anything he could get his hands
on. He would hit them all over their bodies. Sometimes, when the beatings
occurred, the girls were not wearing any clothes. Because of these beatings,
the girls would suffer visible bruises and marks. In fact, Victim 3 recounted
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an incident where Appellant hit her with a braided belt, resulting in the skin
being taken off her face. In addition to the physical abuse, Victim 5 testified
that Appellant made the girls eat a roach that had crawled in their cereal.
Finally, the evidence in this case indicates that Appellant did not dial back the
physical abuse directed at his daughters and that he failed to take any actions
that reasonably could be expected to protect their welfare. On the contrary,
Appellant told Victim 2 to inform the hospital staff that her injuries were a
result of an accident. It long has been recognized that a defendant’s attempts
to cover up after a crime can be inferred to demonstrate a consciousness of
guilt. See Commonwealth v. Bradley, 69 A.3d 253, 258 (Pa. Super. 2013)
(“The fabrication of false and contradictory accounts by an accused criminal,
for the sake of diverting inquiry or casting off suspicion, is a circumstance
always indicatory of guilt.”) (citations omitted), appeal denied, 79 A.3d 1095
(Pa. 2013). Accordingly, Appellant’s sufficiency claim is without merit.
To the extent Appellant specifically challenges the sufficiency of the
evidence with respect to Victim 2, such challenge likewise is without merit.
Appellant argues that the evidence was insufficient to sustain his conviction
for EWOC because he was not responsible for Victim 2’s injuries. Appellant
claims that he did not push her into the radiator, but took her to the hospital
afterwards. Appellant’s Brief at 19. He also claims that he is not responsible
for her broken fingers. Id. He argues that when he flipped over the table
under which Victim 2 was hiding, he did not know “that this act would threaten
[Victim 2’s] welfare.” Id. “It is just as likely that this was an accident.” Id.
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Appellant, however, points out that he took Victim 2 to the hospital. Id.
Finally, Appellant claims that he did not cause Victim 2’s foot injury. Id. at
19-20. According to Appellant, “while [he] was punishing her, [Victim 2]
kicked a bathroom pole and it went through her foot.” Id. at 20. He asserts
that he took Victim 2 to the hospital afterwards. Id.
The Commonwealth notes:
[Appellant’s] arguments defy common sense. Simply because he did not directly cause the injuries does not mean he did not knowingly put [Victim 2] in a situation where injury would likely result. Even if it were one of [Appellant’s] other daughters who pushed [Victim 2] into the radiator, [Appellant] nonetheless put his children in a circumstance that could threaten their physical welfare by beating them with his belt [and other objects] to the point that they were pushing each other into radiators to escape. Similarly, any rational adult would understand that flipping over a kitchen table, under which his daughter hid from his repeated blows, places her in a position to be injured, as does beating her on the bathroom floor near poles on which she could impale her foot.
Commonwealth’s Brief at 18. We agree. See Commonwealth v. Smith,
956 A.2d 1029, 1038 (Pa. Super. 2008) (“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.”) (emphasis added), appeal denied,
989 A.2d 917 (Pa. 2010); see also Commonwealth v. Passarelli, 789 A.2d
708 (Pa. Super. 2001) (evidence sufficient for EWOC where appellant’s act
“was not designed to protect, care or support” the child), abrogated on other
grounds by Commonwealth v. Spruill, 80 A.3d 453 (Pa. 2013).
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Appellant’s bald argument that his application of cocoa butter on wounds
or his taking Victim 2 to the hospital after each incident of abuse demonstrates
an intent to care for or protect the children’s welfare is without merit. First,
as the Commonwealth notes, Appellant does not cite any legal authority for
the proposition that application of cocoa butter on wounds is sufficient remedy
for beating a minor with belts, bats, broomsticks, wooden bed slats, extension
cords, or poles. Second, the application of cocoa butter was not Appellant’s
idea, but rather the idea of his daughters’ mother. N.T. Trial, 5/25/17 at 23.
Appellant concedes that the mother used cocoa butter because “she knew it
would heal the skin.” Id. Likewise, Victim 2’s trips to the hospital do not
illustrate Appellant’s intent to care for her. As indicated above, Victim 2
testified that it was her mother—not Appellant—who took her to the hospital.
Accordingly, under the circumstances of this case, Appellant’s remedial actions
taken after he physically abused his daughters were meager at best and they
did not obviate the recurrence of abuse.
Appellant’s invocation of the affirmative defense of corporal punishment
is equally unavailing. Section 509 provides in relevant part:
The use of force upon or toward the person of another is justifiable if:
(1) 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 and:
(i) 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
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(ii) the force used is not designed to cause or known to create a substantial risk of causing death, serious bodily injury, disfigurement, extreme pain or mental distress or gross degradation.
18 Pa.C.S.A. § 509(1) (emphasis added). In Commonwealth v. Ogin, 540
A.2d 549 (Pa. Super. 1988), appeal denied, 557 A.2d 343 (Pa. 1988), we
explained that Section 509 represents a compromise between a parent’s right
to use corporal punishment and the need for “limits regarding the type and
severity of the corporal punishment which a parent may impose.” Ogin, 540
A.2d at 554. We added that “Section 509(1)(i) and (ii) involve independent
requirements and appellants are not entitled to a justification defense unless
they complied with both standards.” Id.
For purposes of Section 509, “[t]he term ‘extreme’ is synonymous with
excessive. [Therefore, Section 509] simply says pain inflicted as a result of
discipline must not be excessive. The punishment must be justifiable and fit
the misconduct. Excessive discipline is contrary to the welfare of the child,
even when discipline is justifiable.” Commonwealth v. Douglass, 588 A.2d
53, 56 (Pa. Super. 1991); see also Ogin, 540 A.2d at 555 (noting that “a
defendant’s actions are not legally justified simply because he may sincerely
believe that the best way of safeguarding or promoting a child’s welfare is to
inflict a cruel and patently excessive punishment.”). “[W]hen applying the
justification statute, the court should focus not only on the degree of force
exerted by the parent but also on the age and the physical and mental
condition of the child who has been disciplined.” Ogin, 540 A.2d at 555. The
Commonwealth bears the burden of proof to show, beyond a reasonable
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doubt, that the defendant is not entitled to a justification defense. See
Douglass, 588 A.2d at 56; see also 18 Pa.C.S.A. § 502 (stating that “[i]n
any prosecution based on conduct which is justifiable under this chapter,
justification is a defense.”).
Here, viewing the evidence in the light most favorable to the
Commonwealth, there was sufficient evidence to establish that the force
exerted by Appellant was not undertaken for the purposes of safeguarding his
daughters—Victims 2, 3, 4 and 5—who were fifteen, thirteen, eleven and nine
years old, respectively. Appellant frequently forced them—sometimes when
they were naked—into a pushup position until exhaustion, and once beat
them—while they were naked—in the shower. The evidence also reveals that
Appellant forced the girls to eat a roach. Appellant’s style of “punishment”
went far beyond what Section 509 contemplated. See Commonwealth v.
Tullius, 582 A.2d 1, 4 (Pa. Super. 1990) (Corporal punishment protected
under Section 509 must be “necessary to maintain reasonable discipline” and
be “consistent with the child’s welfare”), appeal denied, 593 A.2d 418 (Pa.
1991).
Furthermore, the punishments employed by Appellant for rule
violations, such as beating his daughters with belts, bats and the like, was
designed to cause disfigurement, extreme pain, mental distress or gross
degradation. As stated, all of Appellant’s daughters suffered “red, blue,
sometimes puffy” marks and bruises.” N.T. Trial 5/24/17 at 76. Victim 3
testified that the skin was taken off her face. N.T. Trial 5/23/17 at 119-20.
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Victim 2 suffered a gash to her head, an impalement in her foot, and broken
fingers “hanging off” her hands, requiring hospitalizations. Id. at 96-101.
Victim 4’s teacher observed Appellant’s abuse because the bruises on her legs
were so bad that she could not sit down at school. N.T. Trial, 5/24/17 at 78.
Victim 5 sustained welts on her arms and legs to the point that she testified
to wearing certain types of clothes to conceal them. Id. at 53-54. Thus,
Victims 2 and 3 were at risk for disfigurement and Appellant created a risk of
“extreme pain, mental distress and gross degradation” for all four victims of
his physical abuse. As the trial court reasoned:
[Appellant’s] four children provided extensive testimony regarding the abuse they suffered at the hands of their father. The punishments the girls faced appear to be excessive in proportion to their violations of rules, crossing the threshold from corporal punishment to malicious abuse. [Victim 2’s] testimony, regarding [Appellant’s] abuse, that “it seemed like it was a game, like it was fun for him to do” displays [Appellant’s] mental state—that the punishments were not accomplished with an attitude of proper parental responsibility for teaching the children right from wrong, but were an abuse of the privilege of Appellant’s relationship with his children.
Trial Court Opinion, 10/23/18 at 19. Therefore, viewing the evidence in a light
most favorable to the Commonwealth, we conclude that the Commonwealth
introduced sufficient evidence to reject Appellant’s justification defense.
We lastly turn to Appellant’s weight of the evidence claim. Appellant
argues that none of his trial witnesses observed any injuries on his daughters
and that his three biological daughters expressed a desire to live with him
again. Appellant’s Brief at 23.
A motion for a new trial based on a claim that the verdict is against the weight of the evidence is addressed to the discretion of the trial court. A new trial should not be granted because of a
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mere conflict in the testimony or because the judge on the same facts would have arrived at a different conclusion. Rather, the role of the trial judge is to determine that notwithstanding all the facts, certain facts are so clearly of greater weight that to ignore them or to give them equal weight with all the facts is to deny justice. It has often been stated that a new trial should be awarded when the jury’s verdict is so contrary to the evidence as to shock one’s sense of justice and the award of a new trial is imperative so that right may be given another opportunity to prevail.
An appellate court’s standard of review when presented with a weight of the evidence claim is distinct from the standard of review applied by the trial court:
Appellate review of a weight claim is a review of the exercise of discretion, not of the underlying question of whether the verdict is against the weight of the evidence. Because the trial judge has had the opportunity to hear and see the evidence presented, an appellate court will give the gravest consideration to the findings and reasons advanced by the trial judge when reviewing a trial court’s determination that the verdict is against the weight of the evidence. One of the least assailable reasons for granting or denying a new trial is the lower court’s conviction that the verdict was or was not against the weight of the evidence and that a new trial should be granted in the interest of justice.
Commonwealth v. Clay, 64 A.3d 1049, 1054–55 (Pa. 2013) (internal
citations and quotation marks omitted) (emphasis in original). “A motion for
new trial on the grounds that the verdict is contrary to the weight of the
evidence, concedes that there is sufficient evidence to sustain the verdict.”
Widmer, 744 A.2d at 751.
Here, in support of his weight of the evidence claim, Appellant points
out that none of the defense witnesses observed any injuries on his daughters
and that his daughters have expressed a desire to live with him. At the core,
Appellant challenges the trial court’s credibility and weight determination,
which is something we may not entertain. It is within the province of the jury
to make credibility determinations and this Court will not reweigh credibility
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determinations on appeal. “Conflicts in the evidence and contradictions in the
testimony of any witnesses are for the fact finder to resolve.”
Commonwealth v. Sanders, 42 A.3d 325, 331 (Pa. Super. 2012) (citing
Commonwealth v. Tharp, 830 A.2d 519, 528 (Pa. 2003)). “A jury decision
to credit certain evidence and reject other testimony is appropriate; therefore,
the trial court did not abuse its discretion in concluding that its sense of justice
was not shocked by the verdict.” Id. Thus, it is clear that the jury heard the
testimony of all witnesses and found the testimony of the victims more
credible than the testimony of Appellant’s witnesses. Additionally, his
daughters’ desire to live with him does not mitigate the evidence of physical
and psychological abuse nor does it absolve Appellant of the same. Based
upon our review, we find no abuse of discretion on the part of the trial court
for concluding its sense of justice was not shocked by the verdict. Appellant’s
final issue, therefore, fails.
Judgments of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 12/31/19
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