Commonwealth v. Cardwell

515 A.2d 311, 357 Pa. Super. 38, 1986 Pa. Super. LEXIS 12294
CourtSupreme Court of Pennsylvania
DecidedSeptember 18, 1986
Docket2180
StatusPublished
Cited by70 cases

This text of 515 A.2d 311 (Commonwealth v. Cardwell) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Cardwell, 515 A.2d 311, 357 Pa. Super. 38, 1986 Pa. Super. LEXIS 12294 (Pa. 1986).

Opinions

BECK, Judge:

This is an appeal from a denial by the court of common pleas of a writ of certiorari to the municipal court, which had convicted appellant Julia Cardwell of violating 18 Pa.C. S.A. § 4304, endangering the welfare of a child.

We are called upon to decide whether the evidence supports proof beyond a reasonable doubt of the intent element of this offense when the appellant, the child’s mother, took only inconsistent and ineffectual steps to protect her child from another’s severe abuse.

During the relevant time period, appellant Julia Cardwell (Julia) lived in a house in Philadelphia in a family unit with her daughter Alicia and her husband Clyde Cardwell [41]*41(Clyde), Alicia’s stepfather. For at least four years, beginning approximately in 1979, Clyde engaged in a pattern of sexual abuse of his stepdaughter Alicia. When Alicia was “about eleven” years old,1 Clyde began to buy her sexually stimulating clothing. He then began to photograph the child while clothed and in sexually explicit positions. Later, these photographic sessions included taking of photographs of Alicia either totally nude or wearing only stockings and garter belts. It was Clyde’s habit to write sexually suggestive notes to Alicia on an almost daily basis.

Alicia testified that Clyde had vaginal intercourse with her on four occasions and on one occasion had attempted anal intercourse. Alicia became pregnant by Clyde twice in 1983 and had abortions both times, the second abortion occurring on October 18, 1983. There was also testimony that Clyde had sex with the child with the use of a vibrator. The last instance of intercourse occurred in 1984.

Alicia testified that she did not tell anyone about any of the sexual abuse until she told her mother after the second abortion. On cross-examination, Alicia admitted that at first she “played a sort of guessing game with [her mother]” and that it was not until some time in November, 1983, that Julia clearly understood that Clyde had been abusing Alicia.

Julia wrote two lengthy letters to Clyde in January and February of 1984, indicating her full knowledge of this abhorrent situation and warning him vaguely that she would not tolerate it. We note that Alicia testified that she and Julia were afraid of Clyde, that Clyde beat up Julia on one occasion, that he threw and broke things in the house, that he had punched a number of holes in the walls of the house, and that he carried a ,.357 magnum pistol, which he kept on the mantelpiece. In February of 1984 Julia moved [42]*42some of her and Alicia’s clothes to her mother’s (Alicia’s grandmother’s) house. However, both Julia and Alicia remained at home with Clyde. In March 1984 Julia applied for a transfer of Alicia from her school to a school closer to Julia’s mother’s house. In April 1984, however, Julia’s mother’s house was demolished by fire, causing the death of Julia's father. The record reveals Julia took no further steps to relieve the situation until Alicia ran away from home on September 14, 1984.

On October 2, 1984, a criminal complaint was sworn against Julia Cardwell, listing Alicia as complainant and charging Julia with violating 18 Pa.C.S.A. § 4304, stating that she: “as parent supervising [Alicia] ... knowingly endangered the welfare of said child by violating a duty of care, protection, and/or support, to wit: defendant was aware that Clyde Cardwell was having sex with complainant and taking polaroid pictures of complainant in various sexually explicit positions without reporting this to authorities ____”

Julia was tried and convicted in a bench trial in Municipal Court of Philadelphia. She was sentenced to one-year probation and appealed the judgment of sentence to Common Pleas Court by filing a petition for a writ of certiorari. Judge Ned L. Hirsh of the Philadelphia Court of Common Pleas denied the writ of certiorari on August 13,1985. This appeal of the order denying the writ of certiorari followed. On appeal, appellant challenges the sufficiency both of the complaint and of the evidence.

We reject appellant’s allegation that the complaint was defective. On review of the briefs, the record, and Judge Hirsh’s opinion filed January 14, 1986, we find that the complaint was sufficient under Pa.R.Crim.P. 132. As to this issue we affirm on the basis of Judge Hirsh’s opinion.

Appellant’s challenge to the sufficiency of the evidence is that the evidence adduced at trial was insufficient to prove beyond a reasonable doubt the intent element of the offense of endangering the welfare of a child. This challenge is in two parts. The first part concerns the intent required by [43]*43the statute defining the offense and is a matter of statutory interpretation.

18 Pa.C.S.A. § 4304, Endangering the Welfare of Children, provides:

A parent, guardian, or other person supervising the welfare of a child under 18 years of age commits a misdemeanor of the second degree if he knowingly endangers the welfare of the child by violating a duty of care, protection or support.

Appellant alleges that this statute requires a “knowing act” of endangering the welfare of a child, and appellant implies that an omission to act cannot satisfy the statute. We do not agree.2 The crime of endangering the welfare of a child is a specific intent offense. The intent element required by § 4303 is a knowing violation of a duty of care. We must, therefore, interpret when an accused knowingly violates his or her duty of care.

To determine whether a defendant acts knowingly, we look to the section of the Crimes Code that defines kinds of culpability, 18 Pa.C.S.A. § 302(b), which provides, in relevant part:

(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.

We interpret “nature of his conduct” to mean overall conduct, including omissions to act as well as acts. If a violation of a duty of care can include an omission, then, a person can act “knowingly” in omitting to act with respect to that duty.

[44]*44This court previously discussed the issue of a parent’s duty of care in the context of a challenge to the sufficiency of evidence on a conviction for involuntary manslaughter. In Commonwealth v. Howard, 265 Pa.Super. 535, 402 A.2d 674 (1979), we upheld the conviction of a mother who failed to protect her child from the physical abuse of the mother’s boyfriend, who lived with them. We said in Howard:

an omission to act may create criminal culpability under our Crimes Code even though the law defining the offense, as here, requires an “act,” where “a duty to perform the omitted act is otherwise imposed by law.” 18 Pa.C.S.A. § 301(b)(2). Here, appellant and the victim stood in the relation of parent and child. A parent had the legal duty to protect her child, and the discharge of this duty requires affirmative performance.

Id., 265 Pa.Superior Ct. at 538, 402 A.2d at 676.

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Cite This Page — Counsel Stack

Bluebook (online)
515 A.2d 311, 357 Pa. Super. 38, 1986 Pa. Super. LEXIS 12294, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-cardwell-pa-1986.