Commonwealth v. Halye

JOYCE, Judge,

concurring and dissenting:

I agree with the majority’s conclusions regarding the constitutionality of 42 Pa.C.S.A. § 9794 and join in this part of the majority opinion. However, as I believe that the evidence was sufficient to sustain Appellant’s conviction for endangering the welfare of children, I respectfully dissent as to this issue.

In determining whether the Commonwealth has met its burden of proof, the test to be applied is: [w]hether, viewing the evidence in the light most favorable to the Commonwealth, and drawing all reasonable inferences favorable to the Commonwealth, there is sufficient evidence to find every element of the crime beyond a reasonable doubt. 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 trial record must be evaluated and all evidence actually received must be considered. Finally, the trier 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. Valette, 531 Pa. 384, 388 , 613 A.2d 548, 549 (1992) (citations and quotation marks omitted).

A person commits the crime of endangering the welfare of a child if he is a parent, guardian or other person supervising the welfare of a child under 18 years of age and knowingly endangers the child by violating a duty of care, protection and support. 1 18 Pa.C.S.A. § 4304(a). In applying this statute, this Court has held that the Commonwealth satisfies its evidentiary burden by proving that: (1) the accused is aware of his or her duty to protect the child; (2) the accused is aware that the child is in circumstances that *777 could threaten the child’s physical or psychological welfare; and (3) that the accused has either failed to act or has taken action so lame or meager that such actions cannot reasonably be expected to protect the child’s welfare. Commonwealth v. Martir, 712 A.2d 327, 328-329 (Pa.Super.1998).

Appellant asserts that the evidence is inadequate because he was not asked to “supervise” the welfare of the victim. Appellant’s Brief at 12. While the majority accepts this position, see Majority Opinion, ante at 765, the statute does not identify explicit parental request for supervision as an element of the crime. Nor would I read this requirement into the statute.

The appellate courts have recognized that section 4304 is a juvenile statute which is basically protective in nature and designed to cover a broad range of conduct in order to safeguard the welfare and security of our children. Commonwealth v. Mack, 467 Pa. 613, 617 , 359 A.2d 770, 772 (1976). Commonwealth v. Ogin, 373 Pa.Super. 116 , 540 A.2d 549, 553 (Pa.Super.1988) (en banc). The statute therefore must be given meaning by reference to the common sense of the community and the broad protective purposes for which it was enacted. Commonwealth v. Mack, 467 Pa. at 618 , 359 A.2d at 772 ; Commonwealth v. Ogin, 540 A.2d at 553 . The term “supervise” is defined to mean “to oversee with the powers of direction and decision the implementation of one’s own or another’s intentions.” Webster’s Third New International Dictionary 2296 (1976). See also Black’s Law Dictionary 1438 (6th ed.1990) (defining supervise as to have general oversight over, to superintend or to inspect). In essence then, supervision entails oversight of and the power to direct the actions of another. Utilizing this definition, the evidence sufficiently proved Appellant’s supervision of the welfare of the victim.

The evidence presented at trial established that Appellant was the cousin of the victim’s mother. N.T. 1/20/97 at 67. Appellant came to the victim’s residence to visit. Id. at 67-68. Appellant, who was apparently speaking with the adults, excused himself and went to the bathroom. Id. at 69.

After using the bathroom, Appellant went into the bedroom where the victim and his sister were playing. Id. at 29-30, 38-39 and 68-69. Appellant asked the victim to sit on his lap. Id. at 30. When he refused, Appellant placed the child on his lap. Id. Appellant then asked the victim’s sister if she could play the game by herself. Id. at 49. Upon receiving her affirmative response, Appellant got up and entered the bedroom closet. Id. at 30 and 49.

Appellant repeatedly asked the victim to accompany him in the closet. Id. at 30 and 39. The victim refused. Id. at 30. Appellant then grabbed the victim by his arm and pulled him into the closet where he forcibly pulled down the victim’s shorts and underpants and proceeded to molest the victim. Id. at 30-33, 44-45 and 47.

While Appellant was not specifically asked to oversee or supervise the children, he voluntarily arrogated that role to himself by entering the children’s bedroom and involving himself in their games. He then directed and forced the victim to enter the closet and submit to Appellant’s unwanted sexual acts. This evidence was sufficient to prove that Appellant oversaw or supervised the victim. To hold the evidence insufficient merely because the victim’s mother did not specifically ask Appellant to supervise the children ignores Appellant’s status as an adult relative who assumed a position of authority over the victim. Because the evidence was sufficient to sustain Appellant’s conviction I would affirm the judgment of sentence.

. It is undisputed that Appellant was not the parent or guardian of the victim. Accordingly, my analysis will focus on the supervision element.