Com. v. Parris, C.

J-A25013-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellant :

:

:

v. :

:

:

CARMELLA MAY PARRIS : No. 1498 WDA 2021

Appeal from the Order Entered December 6, 2021,

in the Court of Common Pleas of Venango County,

Criminal Division at No(s): CP-61-CR-0000584-2019.

BEFORE: KUNSELMAN, J., NICHOLS, J., and McCAFFERY, J.

MEMORANDUM BY KUNSELMAN, J.: FILED: December 2, 2022

The Commonwealth of Pennsylvania appeals the order granting

Carmella May Parris’ post-verdict motion for judgment of acquittal after a jury

convicted her of false reports of child abuse.1 Because the Commonwealth

did not ensure that the trial exhibits were transmitted to this Court, we are

unable to determine whether the evidence was sufficient to prove that Parris

reported “child abuse” under 23 Pa.C.S.A. § 6303(b.1). Therefore, we affirm.

On May 20, 2019, Parris drove her daughter Carmella Poch-Wilt to Poch-

Wilt’s supervised physical custody with R.S., her four-year-old son. After the

visit, Richard Freeman, the child’s father, refused to reschedule Poch-Wilt’s

next custody period. Poch-Wilt reacted by yelling that Freeman was high on

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1 18 Pa.C.S.A. § 4906.1.

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methamphetamines, as did Parris. Freeman left with R.S., and Poch-Wilt and

Parris returned to Parris’ home.

Back home, Parris made emergency telephone calls and told CYS

representative Joshua Nace about Freeman. According to Nace, Parris said

Freeman “had obtained custody of the child from Family Services after a visit.

[H]e appeared to be grayish in skin tone, eyes were red and was twitching.

[H]e was ‘on something’ or obviously was on something.” N.T. Trial, 7/19/21,

at 73. CYS worker Angello Perillo, who visited Freeman within hours of Parris’

call, testified that Freeman did not appear to be under the influence of

anything or to be endangering R.S.

The Commonwealth charged Parris with false reports of child abuse,

conspiracy to commit false reports of child abuse, harassment, and conspiracy

to commit harassment. At trial on July 19 and 20, 2021, the Commonwealth

played Parris’ calls for the jury and entered the 911 center’s “incident detailed

report” into evidence. The Commonwealth presented the testimony of

numerous witnesses, including Nace, Perillo, and Poch-Wilt, who testified that

Freeman did not appear to be on drugs.

The jury found Parris guilty of false reports of child abuse. Parris was

acquitted of the remaining offenses. On August 23, 2021, the trial court

sentenced Parris to pay a $300.00 fine. On September 2, 2021, Parris moved

for a judgment of acquittal. On December 6, 2021, the trial court granted

Parris’ motion for judgment of acquittal. The Commonwealth timely appealed.

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“A motion for judgment of acquittal challenges the sufficiency of the

evidence to sustain a conviction on a particular charge, and is granted only in

cases in which the Commonwealth has failed to carry its burden regarding that

charge.” Commonwealth v. Hutchinson, 947 A.2d 800, 805 (Pa. Super.

2008) (citation omitted). Therefore, this Court applies the same scope and

standard of review that apply for a challenge to the sufficiency of the evidence:

we evaluate the record in the light most favorable to the

Commonwealth as verdict winner, giving it 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. 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. Additionally, the Commonwealth may sustain its

burden solely by means of circumstantial evidence.

Commonwealth v. Lake, 281 A.3d 341, 345–46 (Pa. Super. 2022) (citations

and quotation marks omitted).

Section 4906.1 of the Crimes Code defines the offense of false reports

of child abuse, in relevant part: “A person commits a misdemeanor of the

second degree if the person intentionally or knowingly makes a false report of

child abuse under 23 Pa.C.S. Ch. 63 (relating to child protective services).”2

18 Pa.C.S.A. § 4906.1. The elements of this offense are: (1) the defendant

must make a report of child abuse under Chapter 63, (2) the report must be

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2A person also commits an offense under the same section by intentionally or

knowingly inducing a child to make a false claim of child abuse under Chapter

63. 18 Pa.C.S.A. § 4906.1.

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false, and (3) the defendant must either intend to make a false report or know

that she is making a false report. See Pa. SSJI (Crim) § 15.4906.1 (May

2016);3 cf. Commonwealth v. Soto, 650 A.2d 108, 110 (Pa. Super. 1994)

(listing the elements of falsely incriminating another, 18 Pa.C.S.A. § 4906(a)).

Furthermore, a defendant who is a mandated reporter, like Parris, has

immunity from criminal liability for making a report of suspected child abuse

if she is “acting in good faith,” and good faith is presumed for mandated

reporters. 23 Pa.C.S.A. § 6318(a), (c).

In granting Parris’ motion for judgment of acquittal, the trial court

reasoned in relevant part that the Commonwealth’s evidence was insufficient

to prove the first element of the offense, i.e., that Parris reported “child abuse”

as defined in 23 Pa.C.S.A. § 6303(b.1). Amended Trial Court Opinion,

2/25/22, at 5–6; Opinion, 12/6/21, at 5–6. Because Section 6303(b.1) does

not define child abuse to include being “on something,” the trial court found

the Commonwealth’s evidence to be insufficient to prove that Parris made a

report of child abuse.

The Commonwealth contends that its evidence was sufficient that Parris

reported child abuse, which includes “intentionally, knowingly or recklessly”

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3 The suggested standard criminal jury instruction states “that the defendant

made the report intentionally, that is, not by mistake or accident, and, at the

time, he or she knew that the report was false.” Pa. SSJI (Crim) § 15.4906.1

(May 2016). The statute, however, requires both the action of making the

report and the circumstance of the report’s falsity to be either intentional or

knowing. See 18 Pa.C.S.A. § 302(d) (providing that a culpability requirement

that does not distinguish among the material elements applies to all such

elements, “unless a contrary purpose appears”).

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“[c]reating a reasonable likelihood of bodily injury to a child through any

recent act or failure to act.” Commonwealth’s Brief at 15 (quoting 23

Pa.C.S.A. § 6303(b.1)(5)). It argues that the trial court’s standard is “overly

technical” based on the elements of the offense:

[Parris] clearly intended to report Freeman to child protective

services by making a report of child abuse in that Freeman was

purported to be supervising and picking up R.S., a 4 year old child,

while under the influence of a controlled substance. [Parris] used

the words “obviously on something” for a reason, and that was to

convey that R.S.’s safety was at risk due to Freeman being high.

Id. at 19.

Whether conduct is child abuse is a question of statutory interpretation,

which we review de novo. In the Interest of L.J.B., 199 A.3d 868, 873 (Pa.

2018) (citing Commonwealth v. Fant, 146 A.3d 1254, 1260 (Pa. 2016)).

Likewise, we will review de novo whether Parris’ report described child abuse.

Initially, we reject the reasoning that Parris would have had to recite

language from Section 6303(b.1) verbatim to report child abuse. If Parris told

Nace that Freeman was “supervising and picking up R.S.” while he was

“obviously on something,” this could indeed describe child abuse. “Picking up

R.S.” implies that Freeman was driving R.S., and being “obviously on

something” means that he was under the influence of a controlled substance.

Driving under the influence of a controlled substance with a child in the vehicle

places the child at risk of bodily injury. Commonwealth v. Winger, 957

A.2d 325, 331 (Pa. Super. 2008), abrogated on standard-of-review grounds

by Commonwealth v. Dantzler, 135 A.3d 1109, 1112 (Pa. Super. 2016) (en

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banc) (holding that the Commonwealth established a prima facie case of

endangering the welfare of children); see also Lancaster Cty. Children &

Youth Soc. Servs. Agency v. Dep’t of Human Servs., 235 A.3d 402, 414

(Pa. Cmwlth. 2020) (holding that overdosing on heroin while alone with a baby

in a car is child abuse under Section 6303(b.1)(5)).

However, according to Nace, Parris did not tell him that Freeman was

“supervising and picking up” R.S.; Parris only reported that Freeman “had

obtained custody of the child from Family Services after a visit.” Compare

Commonwealth’s Brief at 19, with N.T. Trial, 7/19/21, at 73. Although driving

under the influence increases the risk of harm to a child by the very nature of

driving, the same cannot be said of merely having custody of a child while

being “obviously on something.” See In the Interest of D.R., 216 A.3d 286,

295 (Pa. Super. 2019) (finding no probable cause that a parent committed

child abuse from a report that he was intoxicated in the presence of a child).

To prove that Parris reported child abuse, the Commonwealth would need

evidence that Parris reported Freeman driving under the influence with R.S.,

not just being under the influence with R.S.

To provide this evidence, the Commonwealth points to the call

recordings and the “incident detailed report” introduced at trial. However,

these exhibits were not part of the certified record on appeal. As the

appellant, the Commonwealth has the duty to ensure that the complete record

reaches the appellate court. Commonwealth v. Bongiorno, 905 A.2d 998,

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1000 (Pa. Super. 2006) (en banc).4 We cannot review the sufficiency of the

Commonwealth’s evidence without having that evidence before us. Therefore,

the Commonwealth’s issue is waived. Commonwealth v. B.D.G., 959 A.2d

362, 373 (Pa. Super. 2008) (en banc).

Order affirmed.

Judge McCaffery joins the Memorandum.

Judge Nichols concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/2/2022

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4 The list of record documents transmitted to this Court does not note any

exhibits. See Pa.R.A.P. 1931(d). Furthermore, while the Commonwealth

cites these exhibits as part of its reproduced record, its reproduced record was

never filed with this Court. Although the trial court provided trial transcripts

in response to this Court’s informal inquiry, see Commonwealth v. Preston,

904 A.2d 1, 7–8 (Pa. Super. 2006) (en banc), the exhibits from trial were not

attached and do not otherwise appear in the certified record submitted to this

court.

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