Commonwealth v. Sebolka

J-S01017-19

2019 PA Super 58

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

NANCY ANN SEBOLKA :

:

Appellant : No. 321 MDA 2018

Appeal from the Judgment of Sentence January 10, 2018

In the Court of Common Pleas of Wyoming County Criminal Division at

No(s): CP-66-CR-0000080-2016

BEFORE: PANELLA, P.J., MURRAY, J., and PELLEGRINI*, J.

OPINION BY MURRAY, J.: FILED FEBRUARY 25, 2019

Nancy Ann Sebolka (Appellant) appeals from the judgment of sentence

imposed after a jury found her guilty of two counts of endangering the welfare

of a child (EWOC), two counts of corruption of minors, and two counts of

criminal solicitation to commit simple assault.1 After careful review, we affirm

Appellant’s convictions, but vacate her judgment of sentence and remand for

further proceedings consistent with this decision.

The trial court detailed the facts and procedural history of this case as

follows:

On or about November 24, 2015, the Meshoppen Borough

Police Department arrested and subsequently charged [Appellant]

with three (3) counts of [(EWOC)], 18 Pa.C.S. § 4304, a felony of

the third degree, three (3) counts of corruption of minors, 18

Pa.C.S. § 6301, a misdemeanor of the first degree, three (3)

counts of criminal solicitation/simple assault, 18 Pa.C.S. §

[902]/18 Pa.C.S. § 2701, a misdemeanor of the second degree

and two (2) counts of criminal conspiracy to commit simple

____________________________________________

1 18 Pa.C.S.A. §§ 4304(a)(1), 6301(a)(1)(i), 2701(a)(1), 902(a).

*Retired Senior Judge assigned to the Superior Court.

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assault. The basis of these charges were set forth in the Criminal

Information[,] which stated, in pertinent part, that [Appellant] did

knowingly endanger the welfare of three (3) juveniles, namely

[L.B.], [K.L.B.], and [K.B.], by feeding them small amounts of

food, making them work before they could eat, making them eat

food they did not like as punishment, making them think of and

carry out harsh and brutal punishments on each other, hitting

them, locking them out of the house, making one of the male

juveniles use a bucket outside as a bathroom, refusing to allow

them in the house during the day, sleeping outside in a shed,

making them walk around for hours, and all of the children were

underweight, malnourished and had distended abdomens.

On November 13, 2017, the matter was tried by a jury. Prior

to the commencement of the jury trial, Counsel for [Appellant]

made an oral motion to dismiss one count of [(EWOC)], one count

of corruption of minors and one count of criminal solicitation to

commit simple assault on the basis that at the time of the

preliminary hearing, the District Magistrate, after full hearing, did

not bind over charges as they related to the youngest child, [L.B.].

The Commonwealth did not object to said motion and as such, the

motion was granted. This issue was again addressed during the

trial.

At the time of the trial, [K.L.B.], whose date of birth is [], was

seventeen (17) years old and [a high school student] residing with

his paternal grandparents, brother [K.B.] and sister [L.B.]. (H.T.

11/13/17, pp. 127-8). [K.L.B.]’s . . . biological mother . . . lives

[out of state]. [K.L.B.]’s parents separated . . . and at that time

[K.L.B.] and his siblings went to reside with their father at paternal

grandparents’ home.

Sometime in 2009, Father met [Appellant] and in or around

August of 2012, Father and the children moved into [Appellant]’s

home with [Appellant] and her eighteen (18) year old daughter,

[].

* * *

Sometime after moving in with [Appellant], Father got a new

job where he primarily worked the night shift and the children

were left with [Appellant]. Because of his work schedule, Father

slept most of the day. During the summer, [Appellant] and the

children typically woke up between 10:00 am and noon and

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[Appellant] would give each child half a cup of oatmeal for

breakfast. [L.B.], who was twelve (12) years old at the time she

gave her testimony, testified that she would wake up between

eight or nine o’clock but that she was not allowed out of her room

until [Appellant] woke around noon. [K.L.B.] and his siblings

would eat breakfast together but [Appellant] would not allow them

to speak.

* * *

Typically, the children were not allowed in the house, with the

exception of [L.B.] to use the bathroom or to watch [Appellant]’s

granddaughter. [Appellant] kept all of the doors to the house

locked and the boys would go to the bathroom outside and

defecate in a five-gallon bucket without wiping themselves.

[Appellant] would place a jug of water out for the children,

together with three different colored cups. The children would

often pick berries or wild onions for food. Dinner typically

consisted of a salad or spaghetti and was served at 6:00 pm.

Again, the siblings would eat dinner together without permission

to speak. [L.B.] testified that the children would eat oatmeal

around noon and have salad and/or chicken for dinner around six

o’clock and those were the only times the children ate, except for

picking berries outside. After dinner, the children would either go

back outside or go to their bedrooms that did not have any light.

They were not allowed to watch television. The children were

allowed to shower two (2) to three (3) times per week.

* * *

During the school year, the children typically woke about a half

hour before the bus arrived, were fed a half of a cup of oatmeal

and provided a bag lunch of a sandwich, popcorn or pretzels, a

piece of fruit and a water. [K.L.B.] testified that he usually ate

his lunch on the bus ride to school because he was not fulfilled

from the oatmeal. [K.L.B.] testified that he would often eat

condiments for lunch, occasionally the lunch ladies would provide

him with a lunch and he would take leftover fruit and/or milk from

friends.

* * *

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On several occasions, [Appellant] asked [K.L.B.] to punish his

brother by hitting him and beating him up. In or around August

of 2015, [K.L.B]’s brother, [K.B.], stole crackers or some sort of

granola bar and [Appellant] found out about it. [K.B.], who was

fourteen years old at the time he testified, testified that when

[Appellant] realized the crackers were missing, she woke all of the

children up at 2:00 am and when [K.B.] admitted to taking the

crackers, [Appellant] forced [him] to walk outside in the rain for

about twenty to thirty minutes. [Appellant also] punished [K.B.]

by making him sand the deck of their home by hand.

* * *

[K.B.] ran away from home on several occasions. On August

24, 2015 Cindy Miner (hereinafter “Ms. Miner”) was working at

D&C Fuel on Route 6 in Washington Township, Wyoming County

as a shift supervisor for the night shift. When she arrived at work

at approximately 9:15 pm, she noticed a small, dirty boy wearing

torn up clothes trying to buy a bag of chips. Ms. Miner’s cashier

gave the boy the bag of chips and Ms. Miner then found the boy

sitting on a picnic table bench and she approached him. Ms. Miner

th[e]n made him chicken fingers and fries and the child ate the

meal in its entirety. Ms. Miner then called 9-1-1 and Meshoppen

Borough Chief of Police John Krieg (hereinafter “Chief Krieg”)

arrived.

Chief Krieg testified that when he first saw [K.B.], he . . .

noticed his dirty and ripped clothing and that he had a cut on his

knee. [K.B.] informed Chief Krieg that he got the cut because he

told [Appellant] he did not want to sand the porch and so

[Appellant] directed [K.L.B.] to punish [K.B.]. Chief Krieg

contacted CYS and proceeded to [Appellant]’s house. Chief Krieg

spoke with [Appellant] and directed [K.L.B.] to go outside.

Thereafter, Chief Krieg attempted to speak with [K.L.B.] who was

quiet and looking over his shoulder. Chief Krieg realized

[Appellant] was staring at [K.L.B.] and so Chief Krieg directed her

to wait inside with the door closed. After speaking with [K.L.B.],

Chief Krieg learned that the children were not allowed to eat until

their work was done. Chief Krieg took custody of all three children

and then turned them over to Wyoming County Children and

Youth Services (hereinafter “CYS”). While transporting the

children, they asked if they could have food when they got to

where they were going.

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* * *

Megan Georgia (hereinafter “Ms. Georgia”) is a school

counselor . . . and testified that she provided counseling services

to [K.L.B.] beginning in the 2011/2012 school year when he was

brought to her office by cafeteria workers and staff members. Ms.

Georgia had approximately four (4) or five (5) parent conferences

with [Father] regarding academic issues, behavioral concerns and

concerns about [K.L.B.] eating from a school garbage can. On a

couple of occasions, Ms. Georgia assisted [K.L.B.] in cleaning out

his locker. Cafeteria workers would frequently give [K.L.B.] food

and he would store it in his locker. Often times, the food would

begin to smell and so Ms. Georgia would assist [K.L.B.] in cleaning

out the locker. Ms. Georgia testified that [Father] and [K.L.B.]

participated in a CASSP meeting, which was an interagency

meeting to get services in place for [K.L.B.] and to attempt to get

[him] access to medical services.

* * *

Rebecca Grimaud Chilson (hereinafter “Dr. Chilson”) [testified]

as an expert in the field of pediatrics for the purposes of this trial

on November 15, 2017. Both [K.L.B.] and [K.B.] were patients of

Dr. Chilson. More specifically, [K.L.B.] came under Dr. Chilson’s

care on or about October 3, 2014. . . . During this visit, [K.L.B.]

indicated to Dr. Chilson that his step-mother was not feeding him

as much as he would like. Dr. Chilson stressed the importance of

a well-balanced diet with [K.L.B.] and [Father].

Thereafter, on August 27, 2015[,] Dr. Chilson again saw

[K.L.B.] when his foster parents and CYS brought all three children

for an exam. Dr. Chilson noted [K.L.B.]’s distended abdomen and

high-pitched bowel sounds that were abnormal. Dr. Chilson

testified that this was a result of his gut being overwhelmed by

the increased calorie and food intake, which is also known as

refeeding syndrome. Formal counseling was recommended for

the children, smaller and more frequent portions of food were

recommended and child neglect was noted. [K.L.B.] was again

seen by Dr. Chilson on September 18, 2015 to follow up on his

elevated liver enzymes and low vitamin D levels. After another

round of labs, Dr. Chilson noted that the laboratory results had

[returned] to normal levels.

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[K.B.] was also treated by Dr. Chilson and he first was seen on

September 22, 2014[.] Dr. Chilson noted that [K.B.] was small

for his age and therefore recommended increasing his caloric

intake. [K.B.] was again seen on May 21, 2015 when his paternal

grandmother brought him for a visit because his required sixth

grade physical was overdue. [K.B.] informed Dr. Chilson of his

home life and his hunger. As a result, Dr. Chilson placed a call

with CYS to voice her concerns. [K.B.] was again seen on August

27, 2015 when he presented with his siblings, foster parents and

CYS. [K.B.] explained to Dr. Chilson his reasons for running away

on August 24, 2015. A heart murmur, which he did not have

previously, was noted and an EKG and echo was recommended.

[K.B.] also had elevated liver enzymes and low vitamin D levels.

However, after repeat labs, these levels returned to normal levels.

On November 15, 2017, the jury returned verdicts of guilt

against [Appellant] on the following criminal offenses:

a. Case No.: 2016-CR-80A, Endangering the Welfare of

Children (F-3);

b. Case No.: 2016-CR-80B, Endangering the Welfare of

Children (F-3);

c. Case No.: 2016-CR-80C, Corruption of Minors (M-1);

d. Case No.: 2016-CR-80D, Corruption of Minors (M-1);

e. Case No.: 2016-CR-80E, Criminal Solicitation to Commit

Simple Assault (M-2); and

f. Case No.: 2016-CR-80F, Criminal Solicitation to Commit

Simple Assault (M-2).

Thereafter on January 10, 2018, this [c]ourt . . . sentenced

[Appellant] to an aggregate sentence of not less than twenty-one

(21) months to not more than eighty-four (84) months in a state

institution.

[Appellant] filed Post Sentence Motions, which were denied by

Court Order dated January 19, 2018. [Appellant] then filed a

Supplemental Post-Sentence Motion for Judgment of Acquittal

and/or Arrest of Judgment and/or New Trial and to Modify or

Reconsider Sentence, which was denied as moot by this [c]ourt

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on January 22, 2018. [Appellant] filed a direct appeal to the

Pennsylvania Superior Court[.]

Trial Court Opinion, 5/7/18, at 1-11 (record citations and footnote omitted).

On appeal, Appellant presents the following issues for review:

1. WAS THE COMMONWEALTH’S EVIDENCE INSUFFICIENT TO

SUSTAIN GUILTY VERDICTS BEYOND A REASONABLE DOUBT

AGAINST THE APPELLANT?

2. WERE THE VERDICTS AGAINST THE WEIGHT OF THE

EVIDENCE?

3. DID THE COURT ERR BY ADMITTING PORTIONS OF THE

TESTIMONY OF [L.B.], WHO WAS NOT A NAMED COMPLAINANT

AT THE START OF THE TRIAL?

4. DID THE COURT ERR BY FAILING TO INSTRUCT JURY ON

IGNORANCE OR MISTAKE OF FACT REGARDING THE CHARGE OF

[EWOC]?

5. DID THE COURT ERR BY PRECLUDING CERTAIN TESTIMONY

OF THE CHARACTER AND FACT WITNESSES, BOBBI JO

KARPINSKI AND [K]RISTINA SEBOLKA, RESULTING IN

PREJUDICE TO [APPELLANT]?

6. DID THE COURT ERR BY PRECLUDING THE ADMISSION OF

RELEVANT EVIDENCE CONCERNING THE ELEVATED BMI AND

OBESE CONDITION OF THE COMPLAINANT, [K.L.B.] FOLLOWING

HIS REMOVAL FROM [APPELLANT’S] RESIDENCE IN 2015?

7. THE COURT ERRED BY STATING A PERSONAL OPINION ABOUT

THE CREDIBILITY OF THE COMMONWEALTH’S EXPERT WITNESS

DR. CHILSON.

8. DID THE COURT ABUSE ITS DISCRETION BY FAILING TO

IMPOSE A SENTENCE PURSUANT TO THE RRRI ACT?

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Appellant’s Brief at 5-6.2

Appellant’s first issues presents three distinct sufficiency of the evidence

challenges. In reviewing a challenge to the sufficiency of the evidence, our

standard of review is as follows:

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

our judgment for that of the fact finder; thus, so long as the

evidence adduced, accepted in the light most favorable to the

Commonwealth, demonstrates the respective elements of a

defendant’s crimes beyond a reasonable doubt, the appellant’s

convictions will be upheld.

Commonwealth v. Franklin, 69 A.3d 719, 722-23 (Pa. Super. 2013)

(internal quotations and citations omitted). Importantly, “the jury, which

passes upon the weight and credibility of each witness’s testimony, is free to

____________________________________________

2 We note that Appellant has abandoned her seventh issue in her appellate

brief.

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believe all, part, or none of the evidence.” Commonwealth v. Ramtahal,

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

First, Appellant challenges the sufficiency of the evidence with respect

to her EWOC convictions. Section 4304(a)(1) defines EWOC as follows:

(a) Offense defined.--

(1) 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).

Appellant asserts that the Commonwealth failed to prove that Appellant

knowingly violated a duty of care as to either K.L.B. or K.B. Section 302(b)

of the Pennsylvania Crimes Code states:

(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).

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):

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(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.

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

(quotations and citations omitted).

Appellant contends that she made a “reasonable, legitimate mistake as

to the necessary caloric intake requirements of children of varying ages,

weights, heights, and body types.” Appellant’s Brief at 24. Additionally,

Appellant maintains that the Commonwealth failed to prove that she was

aware “that the complainants[] were in circumstances that could threaten

their physical or psychological welfare and that [Appellant] has either failed to

act or has taken action so lame or meager that such actions cannot reasonably

be expected to protect complainants’ welfare.” Id.

We disagree. The record is replete with evidence demonstrating that

Appellant knowingly placed K.L.B. and K.B. in circumstances that threatened

their physical or psychological welfare, and she took actions that could not

reasonably be expected to protect the children’s welfare. Contrary to

Appellant’s claims, the record reflects that K.L.B. and K.B. were severely

underfed. Appellant fed the children a half cup of oatmeal for breakfast and

a salad or spaghetti for dinner. N.T., 11/13/17, at 142-45; 11/14/17, at 18.

Although the children took lunch with them to school, K.L.B. testified that he

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ate his lunch on the way to school because he did not get enough for breakfast,

which led him to eat condiments for lunch, get food from his friends or the

cafeteria staff, or retrieve uneaten food from the garbage. N.T., 11/13/17, at

146-47; N.T., 11/14/17, at 234. When they were not in school, the children

would often pick wild berries for food because they did not get enough to eat

at home. N.T., 11/13/17, at 141, 193. K.L.B. and K.B. were so malnourished

that after they were placed in foster care, they exhibited distended abdomens

and high-pitched bowel sounds indicating that their bodies were overwhelmed

by the increased food intake. N.T., 11/15/17, at 21, 30, 45. Both K.L.B. and

K.B. had elevated liver enzymes and low vitamin D levels as a result of

malnutrition. Id. at 22-23, 45-47. After several weeks in foster care, the

boys’ laboratory results returned to normal levels. Id. at 26, 47.

In addition to causing malnourishment, Appellant forced the children to

live in an environment devoid of hygiene. Appellant forced K.L.B. and K.B. to

defecate outdoors in a five-gallon bucket without toilet paper, N.T., 11/14/17,

at 69-70, 87-88, 118-19, and only allowed them to shower one to three times

a week. N.T., 11/13/17, at 145; N.T., 11/14/17, at 88, 124.

The record further reflects that Appellant inflicted psychological damage

on the children. For example, the children were not allowed to speak during

meals. N.T., 11/13/17, at 136. After dinner, Appellant permitted the children

to either go back outside or go to their bedrooms, which did not have any

light. N.T., 11/13/17, at 143-44. Perhaps worst, the record reveals that on

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several occasions, Appellant forced K.L.B. to punish K.B., his younger brother,

by beating him. N.T., 11/13/17, at 151-52, 194-95; N.T., 11/14/17, at 27,

71, 94-95.

We conclude, based on the overabundance of evidence in the certified

record, that Appellant not only knowingly placed K.L.B. and K.B. in

circumstances that threatened their physical or psychological welfare, but also

deliberately acted in a manner that could not reasonably be expected to

protect the children’s welfare. Appellant’s arguments to the contrary are

entirely unavailing. Accordingly, Appellant’s challenge to the sufficiency of the

evidence relating to her EWOC convictions is meritless.

Second, Appellant challenges the sufficiency of the evidence with

respect to her corruption of minors convictions. Section 6301(a)(1)(i) of the

Pennsylvania Crimes Code provides:

(a) Offense defined.--

(1)(i) Except as provided in subparagraph (ii), whoever, being

of the age of 18 years and upwards, by any act corrupts or

tends to corrupt the morals of any minor less than 18 years of

age, or who aids, abets, entices or encourages any such minor

in the commission of any crime, or who knowingly assists or

encourages such minor in violating his or her parole or any

order of court, commits a misdemeanor of the first degree.

18 Pa.C.S.A. § 6301(a)(1)(i). “Actions that tend to corrupt the morals of a

minor are those that would offend the common sense of the community and

the sense of decency, propriety and morality which most people entertain.”

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Commonwealth v. Snyder, 870 A.2d 336, 351 (Pa. Super. 2005)

(quotations and citations omitted).

Appellant’s corruption of minors convictions stem from her demands

that K.L.B. strike K.B. whenever Appellant perceived that K.B. misbehaved.

Appellant asserts that the Commonwealth “failed to establish that [she] acted

in a manner to corrupt the morals of [the] complainants.” Appellant’s Brief at

26. Specifically, Appellant contends that because her instructions to K.L.B.

“were only to strike [K.B.] rather than give a savage beating[,]” that the

evidence is insufficient to sustain her corruption of minors convictions. Id.

At the outset, we note that Appellant admits that she instructed K.L.B.

to strike K.B. Appellant’s Brief at 26. Without question, Appellant’s demands

that K.L.B. beat K.B., his younger brother, to the point of bruising K.B., and

her insistence that K.B. receive these beatings, constitute actions that offend

the common sense of the community and the sense of decency, propriety and

morality that most people entertain. See Snyder, 870 A.2d at 351. Thus,

this concession alone is sufficient to sustain Appellant’s corruption of minors

convictions, as Appellant’s actions in this respect speak for themselves.

Moreover, Appellant’s assertion that the evidence is insufficient to sustain her

corruption of minors convictions because she only instructed K.L.B. to hit K.B.

and did not ask him to give K.B. a “savage beating,” not only strains credulity,

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but is also unsupported by any authority. Accordingly, we conclude that

Appellant’s challenge to her corruption of minors convictions is meritless.3

Third, Appellant challenges the sufficiency of the evidence with respect

to her solicitation to commit simple assault convictions. Section 902(a) of the

Pennsylvania Crimes Code defines solicitation as follows:

(a) Definition of solicitation.--A person is guilty of solicitation

to commit a crime if with the intent of promoting or facilitating its

commission he commands, encourages or requests another

person to engage in specific conduct which would constitute such

crime or an attempt to commit such crime or which would

establish his complicity in its commission or attempted

commission.

18 Pa.C.S.A. § 902(a). Section 2701 states that “a person is guilty of assault

if he . . . attempts to cause or intentionally, knowingly or recklessly causes

bodily injury to another.” 18 Pa.C.S.A. § 2701(a)(1). “Bodily injury” is any

“impairment of physical condition or substantial pain.” 18 Pa.C.S.A. § 2301.

Appellant does not dispute that she on multiple occasions instructed

K.L.B. to beat K.B. Instead, she asserts that the use of force was justified

under Section 509 of the Pennsylvania Crimes Code as a disciplinary action.

____________________________________________

3 Additionally, with respect to K.L.B., Appellant concedes that she encouraged

K.L.B. to commit the crime of simple assault. Section 2701 of the

Pennsylvania Crimes Code states that “a person is guilty of assault if he . . .

attempts to cause or intentionally, knowingly or recklessly causes bodily injury

to another.” 18 Pa.C.S.A. § 2701(a)(1). “Bodily injury” is any “impairment

of physical condition or substantial pain.” 18 Pa.C.S.A. § 2301. The record

clearly reflects, and Appellant admits, that on numerous occasions she

instructed K.L.B. to hit K.B. and that K.B. suffered bruising as a result. N.T.,

11/13/17, at 151-52, 194-95; N.T., 11/14/17, at 27, 71, 94-95. Thus, we

could sustain Appellant’s corruption of minors convictions on this basis.

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We disagree. Section 509 provides, in pertinent part, as follows:

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

(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).

As Section 509 plainly states, the defense of justification is only

available where the “the force is used for the purpose of safeguarding or

promoting the welfare of the minor” and “is not designed to cause or known

to create . . . mental distress or gross degradation.” Id. Appellant’s actions

in this case do not fit within the constructs of Section 509(1). Given that

Appellant asked K.L.B. to beat K.B. and laughed when he did, see N.T.,

11/13/17, at 151-52, the application of force was in no way meant to promote

the welfare of K.B. and was clearly designed to cause pain, mental distress,

and degradation. See N.T., 11/13/17, at 151-52, 194-95; N.T., 11/14/17, at

27, 71, 94-95. Accordingly, Appellant’s challenge to her solicitation to commit

simple assault convictions is meritless.

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For her second issue, Appellant argues that the trial court erred in

denying her post-sentence motion in which she argued that her verdicts were

against the weight of the evidence. Specifically, Appellant bases her weight

claim on the assertion that the testimony of K.L.B., L.B., and K.B. was

unreliable because they were children having difficulty dealing with separation

from their biological mother, and because they failed to report their allegations

of abuse in a timely fashion.

Our standard of review for a claim that the verdict was against the

weight of the evidence is as follows:

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. Commonwealth v. Widmer, [] 744 A.2d 745,

751-52 ([Pa.] 2000); [Commonwealth v. Brown, 648 A.2d

1177, 1189 (Pa. 1994)]. A new trial should not be granted

because of a mere conflict in the testimony or because the judge

on the same facts would have arrived at a different conclusion.

Widmer, 744 A.2d at 752. 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.’” [Id.] (citation

omitted). 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.” Brown, 648 A.2d at 1189.

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. Brown, 648 A.2d at 1189. Because

the trial judge has had the opportunity to hear and

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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. Commonwealth v.

Farquharson, 354 A.2d 545 (Pa. 1976). 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.

Widmer, 744 A.2d at 753 (emphasis added).

Commonwealth v. Clay, 64 A.3d 1049, 1054-55 (Pa. 2013).

As set forth in our discussion of Appellant’s sufficiency claims, the

consistent testimony of the three children, their school counselors, and Dr.

Chilson, indicates that Appellant: withheld food from K.L.B. and K.B., made

K.L.B. beat K.B., locked the children out of the house, made the boys use a

bucket outdoors for their toilet, limited bathing to a few times per week –

causing the children behavioral and physical problems, including, inter alia,

malnourishment, distended abdomens, elevated liver enzymes and insufficient

vitamin D. Thus, contrary to her assertions, Appellant’s multiple convictions

of EWOC, corruption of minors, and criminal solicitation to commit simple

assault, in no way shock one’s sense of justice. The trial court did not abuse

its discretion in determining that the verdicts were consistent with the weight

of the evidence.

For her third issue, Appellant argues that the trial court abused its

discretion in allowing L.B. to testify about Appellant’s mistreatment of L.B. and

her siblings. Appellant asserts that because L.B. was not a named

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complainant under any of the charges, her testimony was irrelevant and

prejudicial.

Our standard of review is as follows:

It is well settled that the admission of evidence is solely within the

discretion of the trial court, and a trial court’s evidentiary rulings

will be reversed on appeal only upon an abuse of that discretion.

An abuse of discretion will not be found based on a mere error of

judgment, but rather occurs where the court has reached a

conclusion that overrides or misapplies the law, or where the

judgment exercised is manifestly unreasonable, or the result of

partiality, prejudice, bias or ill-will.

Commonwealth v. Hicks, 151 A.3d 216, 224 (Pa. Super. 2016) (quotations,

citations and brackets omitted), appeal denied, 168 A.3d 1287 (Pa. 2017).

As our Supreme Court has explained, generally, “all relevant evidence,

i.e., evidence which tends to make the existence or non-existence of a

material fact more or less probable, is admissible, subject to the

prejudice/probative value weighing which attends all decisions upon

admissibility.” Commonwealth v. Dillon, 925 A.2d 131, 136 (Pa. 2007).

“The court may exclude relevant evidence if its probative value is outweighed

by a danger of one or more of the following: unfair prejudice, confusing the

issues, misleading the jury, undue delay, wasting time, or needlessly

presenting cumulative evidence.” Pa.R.E. 403. “Unfair prejudice means a

tendency to suggest decision on an improper basis or to divert the jury’s

attention away from its duty of weighing the evidence impartially.” Pa.R.Evid.

403 (comment).

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Appellant’s trial counsel objected to three questions during the

Commonwealth’s direct examination of L.B. – whether L.B. lost weight under

Appellant’s care, how L.B. felt when she was hungry, and whether she had

experienced stomach pains. N.T., 11/14/17, at 29-35. Of these three

questions, L.B. only responded to the first, indicating that she had lost weight

under Appellant’s care. See id. Not only was this testimony relevant, as it

tended to corroborate the claims regarding Appellant’s withholding of food,

but Appellant’s assertion that L.B.’s answer to this one question unfairly

prejudiced her and diverted the jury’s attention away from its duty of weighing

the evidence impartially, is tenuous at best. Accordingly, we conclude that

the trial court did not abuse its discretion in permitting L.B.’s testimony.

For her fourth issue, Appellant argues that the trial court erred in

declining to provide the jury with a mistake of fact instruction. Specifically,

Appellant asserts that she was entitled to a mistake of fact instruction on her

EWOC charge because she did not knowingly fail to provide the children with

enough food to satisfy their daily caloric intake requirements, but rather was

mistaken and unaware of how much food they needed on a daily basis.

The standard of review regarding the denial of a jury instruction is well

settled. “Our standard of review when considering the denial of jury

instructions is one of deference – an appellate court will reverse a court’s

decision only when it abused its discretion or committed an error of law.”

Commonwealth v. Galvin, 985 A.2d 783, 799 (Pa. 2009).

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Section 304 of the Pennsylvania Crimes Code, which governs the

defense of mistake of fact, provides:

Ignorance or mistake as to a matter of fact, for which there is

reasonable explanation or excuse, is a defense if:

(1) the ignorance or mistake negatives the intent, knowledge,

belief, recklessness, or negligence required to establish a

material element of the offense; or

(2) the law provides that the state of mind established by such

ignorance or mistake constitutes a defense.

18 Pa.C.S.A. § 304.

This Court has explained the mistake of fact defense as follows:

It is well established that a bona fide, reasonable mistake of fact

may, under certain circumstances, negate the element of criminal

intent. 18 Pa.C.S.A. § 304 (providing, inter alia, that ignorance

or mistake as to a matter of fact, for which there is a reasonable

explanation or excuse, is a defense if “the ignorance or mistake

negatives the intent, knowledge, recklessness, or negligence

required to establish a material element of the offense”)[.] It is

not necessary that the facts be as the actor believed them to be;

it is only necessary that he have a bona fide and reasonable belief

in the existence of facts which, if they did exist, would render an

act innocent.

Commonwealth v. Scott, 73 A.3d 599, 603 (Pa. Super. 2013) (quotations

and citations omitted).

We conclude that the trial court did not abuse its discretion in declining

to instruct the jury on the mistake of fact defense. Appellant is both a parent

and a grandparent. At trial, Appellant professed her passion for nutrition, and

the children’s father indicated that Appellant had read books and magazines

on the subject. N.T., 11/15/17, at 216-17, 297. Additionally, as discussed

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extensively above, K.L.B. and K.B. were underfed to the point that their health

was jeopardized. Appellant’s assertion that she made a mistake of fact as to

how much she needed to feed K.L.B. and K.B., and that this alleged mistake

is a reasonable explanation for their malnourishment, is completely

unavailing. As a parent and grandparent with a self-professed interest in

nutrition, Appellant could not have possessed a bona fide and reasonable

belief that she was providing the children with enough food. See Scott, 73

A.3d at 603. Accordingly, the trial court properly declined to provide the jury

with an instruction on the mistake of fact defense.

For her fifth issue, Appellant argues that the trial court abused its

discretion by precluding the eyewitness testimony of Bobbi Jo Karpinski

(Karpinski), Appellant’s sister, and Kristina Sebolka (Sebolka), Appellant’s

daughter. Appellant asserts that their testimony was relevant because it

would have revealed their personal observations of the home, meals, and

familial interactions, and would have contradicted the Commonwealth’s theory

of guilt with respect to the crimes charged. In response, the Commonwealth

argues that the trial court appropriately limited Karpinski’s and Sebolka’s

testimony to character evidence because Appellant had violated Pennsylvania

Rule of Criminal Procedure 573 by failing to disclose the names and addresses

of the eyewitnesses.

Rule 573 provides, in relevant part, as follows:

(C) Disclosure by the Defendant.

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(1) In all court cases, if the Commonwealth files a motion for

pretrial discovery, upon a showing of materiality to the

preparation of the Commonwealth’s case and that the request is

reasonable, the court may order the defendant, subject to the

defendant’s rights against compulsory self-incrimination, to allow

the attorney for the Commonwealth to inspect and copy or

photograph any of the following requested items:

* * *

(b) the names and addresses of eyewitnesses whom the

defendant intends to call in its case-in-chief, provided that the

defendant has previously requested and received discovery

under paragraph (B)(2)(a)(i).

* * *

(E) Remedy. If at any time during the course of the proceedings

it is brought to the attention of the court that a party has failed to

comply with this rule, the court may order such party to permit

discovery or inspection, may grant a continuance, or may prohibit

such party from introducing evidence not disclosed, other than

testimony of the defendant, or it may enter such other order as it

deems just under the circumstances.

Pa.R.Crim.P. 573(C)(1)(b), (e).

In rejecting Appellant’s claim, the trial court explained:

Counsel for [Appellant] called [Appellant]’s daughter, [Kristina]

Sebolka, and [Appellant]’s sister, Bobbi Jo Karpinski to testify.

(H.T. 11/15/17, pp. 230, 303). During each witness’ testimony,

Counsel for the Commonwealth made an objection. (H.T.

11/15/17, pp. 233-236, 304-311). The Commonwealth made a

discovery request to the defense asking for the identification of

any eye witnesses the defense intended to call at trial. [Appellant]

never provided a list to the Commonwealth. As a result, these

witnesses’ testimony was limited to character testimony[] only.

Trial Court Opinion, 5/7/18, at 14.

On June 13, 2017 (approximately five months prior to trial), the

Commonwealth filed a Rule 573 motion, which the trial court granted the

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following day. Appellant, however, never provided the Commonwealth with

the names and addresses of the eyewitnesses she intended to call at trial.

The trial transcript indicates that it was the Commonwealth’s understanding

that, consequently, Appellant had called Karpinski and Sebolka as character

witnesses only. N.T., 11/15/17, at 233-36, 304-10. When Appellant’s counsel

began to treat them as eyewitnesses, the Commonwealth objected, and the

trial court sustained the objection based on Appellant’s violation of Rule

573(C)(1)(b). Id. Appellant fails, in any manner, to refute the trial court’s

determination that she violated Rule 573. Accordingly, we conclude that the

trial court did not abuse its discretion in limiting Karpinski and Sebolka’s

testimony to character evidence. See Pa.R.Crim.P. 573(E).

For her sixth issue, Appellant argues that the trial court abused its

discretion in denying her request to introduce evidence of K.L.B.’s Body Mass

Index (BMI) both before and after the time he lived with Appellant. Appellant

asserts that this testimony was admissible under the res gestae exception to

show that K.L.B. had struggled with his health prior to living with Appellant

and she was merely helping him to lose weight.

The res gestae exception “to the general proscription against evidence

of other criminal acts is also known as the ‘complete story’ rationale, as

such evidence is admissible in order ‘to complete the story of the crime on

trial by proving its immediate context of happenings near in time and place.’”

Commonwealth v. King, 959 A.2d 405, 417 n.3 (Pa. Super. 2008)

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(emphasis added and citations omitted). Evidence subject to this exception

is admissible only “where the probative value of the evidence outweighs the

tendency to prejudice the jury.” Id.

In rejecting this claim, the trial court explained:

While Dr. Chilson was testifying, Counsel for [Appellant]

wanted to question Dr. Chilson about the records of Dr. Diamond,

the children’s current pediatrician and the pediatrician for the

children prior to moving into [Appellant]’s home. Dr. Chilson

indicated that she had not seen those records. (H.T. 11/15/17, p.

64). An objection was made by the Commonwealth on the basis

that Counsel for [Appellant] was attempting to have Dr. Chilson

testify regarding Dr. Diamond’s records, specifically [K.L.B.]’s

body mass index (hereinafter “BMI”) from October of 2015

through October of 2016. (H.T. 11/15/17, pp. 65-84). Counsel

for [Appellant] wanted to introduce records that reflect that prior

to moving to [Appellant]’s residence, [K.L.B.] had a BMI of 99 and

that at the time of trial, [K.L.B.] had a BMI of 98, in order to

suggest that [K.L.B.] was grossly overweight. Counsel for

[Appellant] argued that this evidence was relevant to show that

the child had a problem with food and that [Appellant] was simply

helping the child lose weight. (H.T. 11/15/17, pp. 73-5). Counsel

for [Appellant] was permitted to question Dr. Chilson about the

children’s BMI prior to moving in with [Appellant]. However, this

[c]ourt held that the children’s BMI approximately one year after

they were removed from [Appellant]’s home was not relevant.

Trial Court Opinion, 5/7/18, at 14-15.

Preliminarily, we point out that contrary to Appellant’s claims, the trial

court did permit her to question Dr. Chilson regarding K.L.B.’s BMI prior to the

time he lived with Appellant. See N.T., 11/15/17, at 73-75. Regarding the

res gestae exception, Appellant’s claim is nonsensical, as evidence of K.L.B.’s

BMI in no way fits with the definition of the rule because it is not evidence of

a prior crime. Moreover, we note that Appellant cites no authority to support

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her claim that this evidence is admissible under the res gestae exception.

Therefore, the trial court did not abuse its discretion in declining to admit

evidence of K.L.B.’s BMI after he no longer lived with Appellant.

Finally, Appellant argues that the trial court erred in failing to find

Appellant eligible for the Recidivism Risk Reduction Incentive (RRRI) program,

61 Pa.C.S.A. §§ 4501-4512. Appellant contends that the trial court wrongly

concluded that her conviction for solicitation to commit simple assault

precluded her from receiving status as an eligible offender under the RRRI

Act.

The question of whether a defendant is RRRI eligible “presents a

question of statutory construction and implicates the legality of the sentence

imposed.” Commonwealth v. Quiles, 166 A.3d 387, 392 (Pa. Super. 2017)

(quotations and citation omitted). “Therefore, our standard of review is de

novo and the scope of our review is plenary.” Id. (quotation and citation

omitted).

Appellant’s RRRI claim presents a question of statutory interpretation.

“Generally speaking, under the rule of lenity, penal statutes are to be strictly

construed, with ambiguities resolved in favor of the accused.”

Commonwealth v. Lynn, 114 A.3d 796, 818 (Pa. 2015). Our Supreme Court

has explained:

In matters involving statutory interpretation, the Statutory

Construction Act directs courts to ascertain and effectuate the

intent of the General Assembly. 1 Pa.C.S. § 1921(a). A statute’s

plain language generally provides the best indication of legislative

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intent. In construing the language, however, and giving it effect,

we should not interpret statutory words in isolation, but must read

them with reference to the context in which they appear.

The United States Supreme Court also takes a contextual

approach in assessing the plain language of statutes and in

determining if an ambiguity exists. See generally King v.

Burwell, [] 135 S .Ct. 2480, 2489 [] (2015) (“If the statutory

language is plain, we must enforce it according to its terms. But

oftentimes the meaning – or ambiguity – of certain words or

phrases may only become evident when placed in context. So

when deciding whether the language is plain, we must read the

words in their context and with a view to their place in the overall

statutory scheme.” (internal quotation marks and citations

omitted)); Yates v. United States, [] 135 S. Ct. 1074, 1081-82

[] (2015) (“‘[T]he plainness or ambiguity of statutory language is

determined [not only] by reference to the language itself, [but as

well by] the specific context in which that language is used, and

the broader context of the statute as a whole.’ Ordinarily, a word’s

usage accords with its dictionary definition. In law as in life,

however, the same words, placed in different contexts, sometimes

mean different things.” (internal citations omitted)).

Commonwealth v. Giulian, 141 A.3d 1262, 1267-68 (Pa. 2016) (some

citations omitted or modified).

The RRRI program “permits offenders who exhibit good behavior and

who complete rehabilitative programs in prison to be eligible for reduced

sentences.” Commonwealth v. Hansley, 47 A.3d 1180, 1186 (Pa. 2012).

Section 4503 defines an “eligible offender,” in relevant part, as follows:

“Eligible offender.” A defendant or inmate convicted of a

criminal offense who will be committed to the custody of the

department and who meets all of the following eligibility

requirements:

(1) Does not demonstrate a history of present or past violent

behavior.

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2) Has not been subject to a sentence the calculation of which

includes an enhancement for the use of a deadly weapon as

defined under law or the sentencing guidelines promulgated by

the Pennsylvania Commission on Sentencing or the attorney

for the Commonwealth has not demonstrated that the

defendant has been found guilty of or was convicted of an

offense involving a deadly weapon or offense under 18 Pa.C.S.

Ch. 61 (relating to firearms and other dangerous articles) or

the equivalent offense under the laws of the United States or

one of its territories or possessions, another state, the District

of Columbia, the Commonwealth of Puerto Rico or a foreign

nation.

(3) Has not been found guilty of or previously convicted of or

adjudicated delinquent for or an attempt or conspiracy to

commit a personal injury crime as defined under section 103

of the act of November 24, 1998 (P. L. 882, No. 111), known

as the Crime Victims Act, except for an offense under 18

Pa.C.S. § 2701 (relating to simple assault) when the offense is

a misdemeanor of the third degree, or an equivalent offense

under the laws of the United States or one of its territories or

possessions, another state, the District of Columbia, the

Commonwealth of Puerto Rico or a foreign nation.

(4) Has not been found guilty or previously convicted or

adjudicated delinquent for violating any of the following

provisions or an equivalent offense under the laws of the United

States or one of its territories or possessions, another state,

the District of Columbia, the Commonwealth of Puerto Rico or

a foreign nation:

18 Pa.C.S. § 4302(a) (relating to incest).

18 Pa.C.S. § 5901 (relating to open lewdness).

18 Pa.C.S. Ch. 76 Subch. C (relating to Internet child

pornography).

Received a criminal sentence pursuant to 42 Pa.C.S. §

9712.1 (relating to sentences for certain drug offenses

committed with firearms).

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Any offense for which registration is required under 42

Pa.C.S. Ch. 97 Subch. H (relating to registration of sexual

offenders).

(5) Is not awaiting trial or sentencing for additional criminal

charges, if a conviction or sentence on the additional charges

would cause the defendant to become ineligible under this

definition.

(6) Has not been found guilty or previously convicted of

violating section 13(a)(14), (30) or (37) of the act of April 14,

1972 (P.L. 233, No. 64),2 known as The Controlled Substance,

Drug, Device and Cosmetic Act, where the sentence was

imposed pursuant to 18 Pa.C.S. § 7508(a)(1)(iii), (2)(iii),

(3)(iii), (4)(iii), (7)(iii) or (8)(iii) (relating to drug trafficking

sentencing and penalties).

61 Pa.C.S.A. § 4503.

Upon review, we conclude that the trial court erred in failing to designate

Appellant RRRI-eligible. The trial court determined that Appellant was not

RRRI-eligible based on Subsection (3) of Section 4503 because of her

“conviction[s] of simple assault[,]” which were graded as second-degree

misdemeanors. Trial Court Opinion, 5/7/18, at 16. Appellant, however, was

not found guilty of simple assault, but rather was convicted of solicitation to

commit simple assault. Subsection (3) plainly states that in order for a

defendant to be RRRI-eligible, he or she must not have “been found guilty of

or previously convicted of or adjudicated delinquent for or an attempt or

conspiracy to commit a personal injury crime[,]” such as the crime of simple

assault when graded as at least a second-degree misdemeanor. See 61

Pa.C.S.A. § 4503. Thus, because Subsection (3) does not include the crime

of solicitation, we are bound by the plain language, and solicitation to commit

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a personal injury crime cannot preclude a criminal defendant from RRRI-

eligibility. See Giulian, 141 A.3d at 1267-68. Accordingly, the trial court

improperly determined that Appellant was not RRRI-eligible based on her

solicitation to commit simple assault convictions.

The Commonwealth argues that Appellant is not RRRI-eligible based on

Subsection (1) of Section 4503 because her convictions of solicitation to

commit simple assault demonstrates a history of present or past violent

behavior. Although the behavior underlying Appellant’s solicitation to commit

simple assault is reprehensible, the Commonwealth does not cite, and our

research did not produce, any legal authority to indicate that solicitation to

commit a personal injury crime demonstrates “a history of present of past

violent behavior” under Section 4503. As our Supreme Court has explained,

“Section 4503’s list of disqualifying offenses . . . include[s] both violent and

potentially non-violent crimes[,]” which “suggests the Legislature did not

intend for all crimes of violence to be disqualifying in and of themselves.”

Commonwealth v. Cullen-Doyle, 164 A.3d 1239, 1243-44 (Pa. 2017)

(quotations and citations omitted; emphasis in original). Therefore, we hold

that Subsection (1) does not preclude Appellant’s RRRI-eligibility in this case.

Based on the foregoing, we affirm Appellant’s convictions, but vacate

her judgment of sentence and remand for further proceedings consistent with

this decision.

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Judgment of sentence affirmed in part and vacated in part. Case

remanded. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 02/25/2019

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