Opinion

Com. v. Brown, E.

Court: Superior Court of Pennsylvania
Filed: May 15, 2024
Status: Unpublished
On the bench: Lazarus, P.J.
Cited by: 0 cases
Authority: More cited than 16.0%

The opinion

J-S14008-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

v. :

EVAN BROWN :

Appellant : No. 1189 MDA 2023

Appeal from the Judgment of Sentence Entered June 21, 2023

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

No(s): CP-22-CR-0000356-2022

BEFORE: LAZARUS, P.J., PANELLA, P.J.E., and MURRAY, J.

MEMORANDUM BY LAZARUS, P.J.: FILED: MAY 15, 2024

Evan Brown appeals from the judgment of sentence, entered in the

Court of Common Pleas of Dauphin County, following his convictions of two

counts of endangering welfare of children (EWOC),1 and one count each of

driving under the influence – general impairment (DUI)2 and recklessly

endangering another person (REAP).3 After review, we affirm on the well-

written opinion authored by the Honorable William T. Tully.

We adopt the trial court’s full factual summary set forth in its opinion,

see Trial Court Opinion, 11/21/23, at 2-7, but, nevertheless, provide a

truncated version here. On January 5, 2022, Brown was in a heated argument

____________________________________________

1 18 Pa.C.S.A. § 4304(a)(1).

2 75 Pa.C.S.A. § 3802(a)(1).

3 18 Pa.C.S.A. § 2705.

J-S14008-24

with Rebecca Grady, his girlfriend. Brown was intoxicated at the time and

wanted to drive their children4 to “Nan’s” house. See id. Grady repeatedly

asked Brown to let her drive because Brown was intoxicated. However, Brown

refused, put the children in the vehicle, and demanded that Grady get in as

well.

Throughout the drive, Brown continued to argue with Grady, who, in

turn, continued to warn him that his behavior was dangerous and that he was

too drunk to drive, and begged him to pull over. During the drive, Brown also

sideswiped trash cans, struck a utility pole, and punched Grady. Grady

repeatedly warned Brown that he was endangering their children, but Brown

refused to acquiesce and continued driving intoxicated and arguing with

Grady.5 Brown told Grady to lie about who had been driving. See id. at 6.

____________________________________________

4Brown and Grady had a then-two-year-old daughter and a then-three-

month-old son. See id. at 5.

5 Police were notified that Grady had texted a friend and that the text had

prompted the friend to call the police. See id. at 2-3. As a result, Lower

Swatara Township Police Officer Jordan Thomas responded and, ultimately,

was provided with Grady’s phone number. See id. Officer Thomas called

Grady and spoke with her regarding Brown’s behavior. See id. Grady

informed Officer Thomas that she and Brown were at 905 Cumbler Street.

See id.

At roughly the same time, Dauphin County Dispatch received a call reporting

an intoxicated or suspicious person involved in a domestic violence incident

outside of 905 Cumbler Street. See id. at 3.

Police responded to 905 Cumbler Street, where they encountered Brown, who

was visibly intoxicated and belligerent. See id. at 2-4.

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J-S14008-24

Brown’s arrival at “Nan’s” house was captured on video surveillance by

the Dauphin County Housing Authority. See id. at 4. The video depicted

Brown pull into the parking lot, exit the driver’s seat, and retrieve a child out

of the back seat. See id. at 5. The video also depicted Grady exiting the

passenger seat and retrieving a child out of the back seat. See id.

Ultimately, police responded and arrested Brown. Brown was charged,

inter alia, with the above-mentioned offenses.6 On March 13-14, 2023,

Brown, acting pro se,7 proceeded to a jury trial, after which he was convicted

of the above-mentioned offenses. The trial court deferred sentencing and

ordered the preparation of a pre-sentence investigation report.

Following trial, Brown relinquished his pro se status and Attorney

Bradley filed a motion for acquittal, which the trial court denied on April 27,

2023. Subsequently, on June 21, 2023, the trial court sentenced Brown to an

aggregate sentence of 18 to 36 months’ imprisonment. On June 28, 2023,

Brown filed a timely counseled post-sentence motion, which the trial court

denied. Brown filed a timely notice of appeal and a court-ordered Pa.R.A.P.

1925(b) concise statement of errors complained of on appeal. Brown now

raises the following claims for our review:

[1.] Was there insufficient evidence to establish that [] Brown

acted recklessly when[,] under controlling law[,] there must be

____________________________________________

6 Brown was also charged with institutional vandalism – educational facility,

see 18 Pa.C.S.A. § 3307(a)(3), but this charge was withdrawn prior to trial.

7 Prior to trial, the trial court appointed Spencer Bradley, Esquire, as Brown’s

standby counsel. See Opinion and Order, 7/22/22, at 1.

-3-

J-S14008-24

evidence of unsafe driving separate from the underlying [DUI]

conduct?

[2.] Was there insufficient evidence to establish that [] Brown

knowingly placed his children in harm’s way when[,] under

controlling law[,] there must be evidence of unsafe driving

separate from the underlying [DUI] conduct?

Brief for Appellant, at 5.

Both of Brown’s claims challenge the sufficiency of the evidence, for

which we adhere to the following standard of review:

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 [re-

]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 [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. Smith, 97 A.3d 782, 790 (Pa. Super. 2014) (citation

omitted).

The REAP statute provides that “[a] person commits a misdemeanor of

the second degree if he recklessly engages in conduct which places or may

-4-

J-S14008-24

place another person in danger of death or serious bodily injury.” 18 Pa.C.S.A.

§ 2705.

The EWOC statute provides that “[a] parent . . . supervising the welfare

of a child under 18 years of age . . . commits an offense if he knowingly

endangers the welfare of the child by violating a duty of care, protection or

support.” Id. at § 4304(a)(1).

Importantly, we are mindful that “the commission of DUI with children

in a vehicle — by itself — is inadequate to sustain convictions under either our

EWOC or REAP statutes.” Commonwealth v. Delamarter, 302 A.3d 1195,

1205 (Pa. Super. 2023).

However, as the trial court aptly describes throughout its opinion, this

case is not merely a DUI with children in the car. Rather, throughout the

course of his DUI incident, Brown was consistently notified by Grady that his

behavior was reckless and dangerous but, despite these warnings, Brown

continued to argue with Grady, punched her, and continued to drive.

Additionally, Brown struck several trash cans throughout the drive, as well as

a utility pole, and instructed Grady to lie about who was driving the vehicle.

Mindful of the record, the applicable standard of review, the relevant

caselaw, and the parties’ briefs, we affirm on the basis of the trial court’s

thorough and well-reasoned opinion. See Trial Court Opinion, 11/21/23, at

1-13. Consequently, we afford Brown no relief on either of his claims. The

parties are directed to attach a copy of the trial court’s opinion in the event of

further proceedings.

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J-S14008-24

Judgment of sentence affirmed.

Judgment Entered.

Benjamin D. Kohler, Esq.

Prothonotary

Date: 5/15/2024

-6-

Circulated 04/2502024

04/25/2024 09.56

09:56 AM

COMMONWEALTH OF PENNSYLVANIA IN THE COURT OF COMMON PLEAS

:. DAUPHIN COUNTY, PENNSYLVANIA

DOCKET NO. 356 CR 2022

EVAN BROWN SUPERIOR COURT

SUPERIOR COURT

DOCKET

DOCKET NO.

NO. 1189

1189 MDA 2023

2023

TRIAL COURT OPINION

COURT

TRIAL OPINION

Brown, ("Defendant)

Evan Brown, ("Defendant") appeals the judgment

judgment,of

of sentence imposed

imposed on June 21, 2023. For

the reasons set forth,

forth, the judgment should be affirmed

affirmed.

RELEVANT PROCEDURAL HISTORY

On January

January 24, 2022, the Commonwealth charged

charged Defendant with: 2

2counts of Endangering

Endangering

Welfare of Children --— Parent/Guardian/Other Commits

Commits, Offense ;

I;Institutional Vandalism

Educational Facility

Educational Facility 2;;DUI: General Impairment/Incapable

DUE General of Safe

Impairment/Incapable of Safe Driving- Second Offense';

Driving- Second Offense 3;

Recklessly

Recklessly Endangering

Endangering Another Person

Person"a

On March

March 13,

13, 2023,

2023, Defendant proceeded to trial

Defendant proceeded trial pro

pro se, with

with standby

standby counsel. At the

the

conclusion

conclusion of

of trial on March 14,,

14, 2023,

2023, aajury

jury found Defendant guilty

guilty on all counts. Defendant,

by counsel, filed

by filed aaMotion

Motion for Judgment Acquittal which the Court denied by Order filed

Judgment of Acquittal filed April

27, 2023. On June 21,

27, 21, 2023, the Court sentenced Defendant at counts 11and 2

2 to

t0 18-36 months

(concurrent with each other);

(concurrent other); 12-24 months at count 4

4 (concurrent

(concurrent with count 1),

I), and 6-24

months at count 55 (concurrent with count D).

1).

18 Pa.C.S.A.

'I8

1 Pa.CS.A. §$4304

4304 48Al

§§ Al

2 18 Pa.C.S.A. § 3307 §§.

18PCS.A. 4$3307 A3 (withdrawn)

8$43 (withdrawn)

1 75 Pa.C.S.A

75 Pa.CS.A §$3802

3802 §§ Al

$$ A1

18 Pa. C.S.A.§ 2705

I8PA.CS.A.$

5813

5-/3

On June.28, 2023, Defendant

June 28, 2023, Defendant filed

filed aa,Post-Sentence

Post-Sentence Motion

Motion for

for Judgment

Judgment of

of Acquittal,

Acquittal, Arrest

Arrest

of Judgment,

of Judgment, aaMotion

Motion to

to Vacate and aaMotion

Vacate and Motion for

for Alteration of Sentence,

Alteration of Sentence, to

to which

which the

the

Commonwealth filed Answers

Commonwealth Answers on

on June

June 30,

30, 2023.

2023. Defendant

Defendant filed

filed aaSupplemental

Supplemental Post

Post Sentence

Sentence

Motion

Motion on June 30,

on June 30, 2023.

2023. We

We denied

denied Defendant's Post-Sentence Motion

Defendant's Post-Sentence and Supplemental

Motion and Supplemental Post-

Post-

Sentence Motion

Motion by

by Order filed

filed August 2023..

August 1, 2023.

On August

On 18, 2023,

August 18, 2023, Defendant

Defendant filed

filed a

a Notice of Appeal.

Notice of Appeal. Pursuant

Pursuant to our Order to do

to our do so,

Defendant filed aaConcise Statement of Matters Complained

Complained of on Appeal September 25,

Appeal on September

2023.

FACTS

The facts,

The facts, viewed

viewed in

in a light most

a light most favorable to the

favorable to the Commonwealth

Commonwealth as

as the

the verdict winner, are as

winner, are as

follows:

follows

On January

On January 5, 2022, at approximately

2022, at approximately 5:49 p.m., Lower Swatara

p.m., Lower Swatara Township

Township Police

Police Officer

Officer

Jordan Thomas

Jordan Thomas received

received a 9-1-1 dispatch

a 9-1-1 dispatch to

to 147 B Lane

147 B Lane and

and responded

responded to

to that address.

address.

(Transcript of

(Transcript of Proceedings, "N.T.", p.

Proceedings, "N.T", 51). The caller was

p. 51). was not

not at that

that address. Id. Although

Although the

the

lights

lights were

were on,

on, no

no one

one answered the door.

answered the door. (N.T.

(N.T, p. 52). Officer

p. 52). Officer Thomas

Thomas contacted

contacted the original

original

caller to gather

caller gather more

more information. That caller

information. Id. That caller stated

stated that

that Rebecca Grady texted

Rebecca Grady texted her.

her. Id.

Officer Thomas

Officer Thomas located

located a

a known number for

known number Rebecca Grady

for Rebecca Grady and

and reached

reached her by phone.

her by phone. Id.

Id.

Ms. Grady's

Officer Thomas described Ms. Grady's demeanor upon answering the

upon answering phone as

the phone as frantic,

frantic,

emotionally heightened,

emotionally heightened, upset, and almost

upset, and almost terrified.

terrified. Id. The

The officer

officer's mobile video

's mobile video recording

recording

system recorded

system and saved

recorded and saved the

the call

call upon the officer's

upon the officer's activation

activation of lights and

of lights and siren.

siren. (N.T.

(N.T. p. 53).

p. 53).

Video

Video footage captured by

footage captured by the mobile video

the mobile video recording system depicted

recording system Officer Thomas,

depicted Officer

accompanied by

accompanied another

by anot officer, in

her officer, front of

in front of their

their police

police vehicle at 147

vehicle at 147 B

B Lane.

Lane. (N.T. p. 54).

(N.T. p. 54). The

The

Commonwealth played.

played the audio portion

portion of the recording jury and

recording of the 9-1-1 call for the jury

entered the

entered transcript of

the transcript of the

the call

call into evidence. (N.T.

into evidence. (N.T. p.

p. 55; Exhibits 88and

55; Exhibits and 8A

8A pp.

pp. 53-56).

53-56). After

After

•speaking

speaking with Ms. Grady, Officer Thomas

Ms. Grady, Dauphin County

Thomas called Dauphin County Dispatch

Dispatch to determine

they received

whether they received a

a call which

which referenced Grady provided,

referenced the address Ms. Grady provided, 905 Cumbler

Street.

Street. (N.T.

(N.T. p. 58).

58). Dauphin County Dispatch

Dauphin County advised that they

Dispatch advised they did

did-receive

receive aacall

call which

which reported

reported

an intoxicated

an or suspicious

intoxicated or suspicious person

person outside

outside 905

905 Cumbler

Cumbler Street.

Street. Id. Suspecting a

Id. Suspecting domestic

a domestic

violence incident, Officer

violence incident, Officer Thomas advised Steelton Police

Police Officers on the scene

scene to

to detain

Defendant. Id.

Defendant.

When Officer Thomas arrived, Defendant was shouting

shouting obscenities at the officers and

demanding to

demanding know why

to know why he

he was

was being arrested. (N.T.

being arrested, (N.T. p.

p. 59). Police placed

placed Defendant

Defendant in the

the back

of Officer

of Officer Thomas'

Thomas' vehicle

vehicle-as

as the officer spoke

the officer spoke with

with Ms.

Ms. Grady.

Grady. Id. Officer

Officer Thomas

Thomas obtained

obtained

Grady's written statement.

Ms. Grady's statement. (N.T. pp. 60-61).

(N.T. pp. 60-61). Police took photos

photos of Ms. Grady's

Grady's Chrysler

Chrysler

Sebring parked

Sebring parked in

in front Cumbler Street. (N.T.

front of 905 Cumbler (N.T. pp.

pp. 61-62). The

The photographs

photographs depict front

end damage,

end damage, an

an exposed

exposed portion of the

portion of the radiator,

radiator, aadislodged

dislodged passenger side mirror

passenger side hanging by

mirror hanging by a

wire, aaslightly

wire, slightly lifted

lifted hood, and scratches

hood, and and marks

scratches and marks which appeared to

which appeared to be

be paint

paint transfer. (N.T.

transfer. (N.T.

pp. 61-64; Exhibits

pp. 61-64; Exhibits 1-3).

1-3)

Officer Thomas

Officer Thomas attempted

attempted to

to speak

speak to Defendant.

Defendant. (N.T. p. 64).

(NT. p. Defendant repeatedly

64). Defendant repeatedly

questioned why

questioned why he was under arrest and cursed the officer. Id.

Id, Officer Thomas attempted to

explain to

explain to Defendant

Defendant why

why he was under

he was arrest; but

under arrest, but Defendant

Defendant persisted

persisted in

in his

his demands and

demands and

continuously interrupted.

continuously interrupted. (Id.,

(Id.; p. 67). Defendant's,

p. 67). speech was slurred and incoherent.

Defendant's speech incoherent. Id. Officer

strongly of alcohol,

Thomas noted that Defendant smelled strongly alcohol. (N.T.

(N.T. pp.

pp. 64-65). Defendant kicked

the door of the police

police vehicle.

vehicle. (N.T.

(N.T. p.

p. 68). Officer Thomas described Defendant's behavior

throughout

throughout the interaction as very impairment. (N.T. p. 68;

very combative and indicative of impairment, 68;. p. 71).

7I).

footage of the rear facing

The Commonwealth entered footage facing camera of the mobile video recording

system evidence. (N.T.

system into evidence. 9).

(N.T. p. 66; Exhibit 9),

Defendant

Defendant remained combative en

remained combative en route

route to,

to, and during, the

and during, the booking.

booking. (Id.; p.

(/d; p. 75).

75). At

At the

the

booking

booking center,

center, Defendant became agitated

agitated in Officer Thomas' presence,

presence, making

making it impossible

for Officer Thomas to read the implied

implied DL-26 warnings

warnings to Defendant. '(N.T.

5 (

N.T. p. 69).

69)

Another officer read the warnings.

warnings. Id. Defendant made racial slurs toward Officer Thomas and

stated that he was going

going to "get

"get [him] way shape

[him] in some way shape or form".

fomm". (N.T. p. 71;

71, p.

p. 72).

72)

Defendant insisted that

that he was

was in the

the passenger's

passenger's seat, not

not the driver's

driver's seat although Ms.

Ms. Grady

told Officer Thomas

told Officer Thomas that

that Defendant drove to

Defendant drove to 905

905 Cumbler

Cumbler Street

Street then switched to

then switched to the passenger

the passenger

seat when they arrived. (N.T. p.

they arrived. p. 72).

The Commonwealth called

The Commonwealth called Derry Township Police

Derry Township Police Department Officer Todd

Department Officer Todd Hauser,

Hauser, who

who

was working

working at the booking

booking center that evening,

evening, as a

awitness.

witness. (N.T.

(N.T. p.

p. 83). Officer Thomas had

Officer Hauser

asked Officer to read

Hauser to read the

the DL-26

DL.-26 form regarding

regarding the rights and

the rights and penalties

penalties for refusal

refusal to

consent to

to aablood

blood draw. (N.T.

(N.T. p. 84). Officer Thomas testified

p. 84). testified that a

a refusal

refusal to

to consent to

to the

the

blood draw results

blood draw results in

in the

the presumption of the

presumption of highest level

the highest of driving

level of driving under

under the

the influence and

influence and

automatic license suspension,

suspension. Id. Officer Hauser read the form to Defendant verbatim. (Id.,

(Id.; p.

85). Defendant refused to submit to the blood draw and did not sign the form.

85). fom. (N.T. pp. 85-86)

85-86).

The Commonwealth also called Daniel Phillips,

Phillips, Facility Maintenance Manager for the

Dauphin County

Dauphin County Housing

Housing Authority, as a

Authority, as awitness. January 5, 2022,

witness. On January 2022, Mr.

Mr. Phillips

Phillips was working

was working

at an administrative building parking lot from 905 Cumbler Street. Mr. Phillips

building across the parking

75 Pa.C.S.A. §$ 1547.Chemical

75Pa.CS.A.

5 1547-Chemical Testing

Testing to

to Determine Amount of

Determine Amount of Alcohol

Alcohol or Controlled Substance,

or Controlled Substance,

commonly referred to

commonly to as the

the Implied Law.

implied Consent Law.

advised the responding

advised the responding police officers that

police officers that Housing Authority security

Housing Authority security cameras would have

cameras would have

captured surveillance

captured surveillance footage.

footage. (N.T.

(N.T. pp. 91-92; Commonwealth

pp. 91-92; Commonwealth Exhibit

Exhibit 7).

7). Police

Police obtained

obtained

surveillance which depicted

depicted Defendant pull

pull into the parking

parking lot"and

lot and exit the vehicle on the

driver's side.

driver's side. Id. The video

Id The depicted aafemale

video depicted female exit

exit the vehicle from

the vehicle the passenger

from the passenger side and

side and

remove

remove aachild from

from the

the back

back seat.

seat. (N.T.

(N.T p. 93). The

p. 93). The Defendant then

then removed

removed a

a child in

in a

a child

child

house. Id.

carrier and took that child into the house. Id

Jeff Enders, Director

Jeff of the

Director of the Dauphin

Dauphin County

County Department of Public

Department of Public Safety

Safety testified

testified that the

that the

Department

Department received a January 5, 2022, related 905 Cumbler Street. (N.T. p.

a 9-1-1 call on January p. 95).

The Commonwealth

The Commonwealth admitted

admitted into evidence the

into evidence the transcript

transcript of

of the call. (N.T.

the call. (N.T. p. 96;

p. 96;

Commonwealth Exhibit

Exhibit 17-A).

17-A)

Rebecca Grady

Rebecca testified that'Defendant

Grady testified that Defendant is her boyfriend

is her boyfriend and

and that

that they

they have

have a

a great

great

relationship when

relationship when he

he is

is not

not in

in jail. (N.T. p.

jail. (N.T. p. 98).

98). Ms. Grady

Grady stated that

that she

she hopes

hopes to

to maintain

maintain her

her

relationship

relationship with

with Defendant

Defendant and have

have more children with

more children with him.

him. Id. She and Defendant

She and have two

Defendant have two

children together,

children together, a daughter, then

a daughter, two years

then two years old,

old, and

and a son, then

a son, three or

then three or four

four months.

months. (N.T.

(N.T. p.

98.). On January

98). January 5,

5, 2022,

2022, Ms. Grady and

Ms. Grady and Defendant

Defendant lived at 147

lived at 147 B

B Lane in Harrisburg.

Lane in Harrisburg. (N.T.

(N.T. P.

99).

Ms.

Ms. Grady

Grady denied that she

she and

and Defendant argued that

Defendant argued evening, but rather,

that evening, rather, characterized the

the

interaction as

interaction as aa "misunderstanding".

"misunderstanding". (N.T. p. 100).

(N.T. p. 100). The Commonwealth entered

The Commonwealth entered Ms. Grady's

Ms. Grady's

written statement into evidence. (N.T.

into evidence. p. 101;

(N.T. p. 101, Exhibit 5).

5). Ms. Grady stated that

Ms. Grady that the

the

misunderstanding

misunderstanding arose because she believed Defendant was intoxicated.

intoxicated. (N.T. p. 102;

102, N.T. pp.

107-108).

107-108). After

After he arrived

arrived at

at 147

147 B

B Lane,

Lane, Defendant drove Ms.

Defendant drove Ms. Grady

Grady and their

their two

two children

children to

905 Cumbler Street. (Id.; pp.

Street. ,(Id., pp. 107-108). Grady testified that her friend called the police but

107-108), Ms. Grady

she denied that she requested

requested anyone

anyone call 9-1-1. Id. Ms. Grady acknowledged speaking with

police over

police over the phone

phone and

and in

in person.

person. (N.T.

(N.T. pp.

pp. 102-103).

102-103). When directed to

When directed do so

to do so by

by the

the

Commonwealth attorney, Grady read her written statement into evidence as follows:

attorney, Ms. Grady

Ms.

Ms. Grady:

Grady: It says, you

It says, are not

you are not supposed

supposed to

to be

be drinking,

drinking, you said. You

you said. You will

will lie

lie

and say

say I'm not. Here

I'm not. Here I

I say

say no, even

even he don't care

he don't care about

about me or our

me or our kids

kids so

so why

why would

would I

do anything

do anything to

to this

this point that IIsaid.

point that said. And I'm taking

And I'm taking the kids to

the kids to Nan's

Nan's house.

house. And

And he

persisted to come

persisted to come even

even though

though I said, no

I said, no you're

you're intoxicated. He said

intoxicated. He said shut

shut up and loaded

up and loaded

the

the kids

kids in

in the car. As

the car. As I

I got things packed,

got things packed, IIwalked

walked out

out to the car, and

the car, and he was

was in

in the

the

driver's seat of

driver's seat of the car. And

the car. And I

I told him to

told him to get

get out,

out, that

that he's

he's not

not driving.

driving. He said yes

He said yes and

and

gave

gave me the kids.

me the kids. And

And I say, no,

I say, no, our

our kids are in

kids are in the car. He

the car. said, you

He said, you know

know I can drive,

I can drive,

don't play

play with

with me.

me. I

I said, Evan, you

said, Evan, you know

know [J

[,] your kids. He

your kids. He said, shut up

said, shut up and get in

and get in the

the

car and don't

car and don't do this, meaning have

this, meaning someone call

have someone call the

the cops

cops or

or fighting.

fighting. Me

Me with

with him. He

him. He

then dragged

dragged me out of

me out of the passenger side by

the passenger by my jacket and

my jacket said get

and said get in

in the car, so

the car, so I did.

I did.

On the way

On the way to Nan's

Nan's house

house I told him

I told him to

to pull

pull over.

over.

(N.T. pp. 109-110).

(N.T. 109-110)

Upon

Upon questioning

questioning by

by the Commonwealth's

Commonwealth's attomey,

attorney, Ms. Grady

Grady acknowledged that her

reading of the written

reading of written statement omitted certain

statement omitted certain portions.

portions. (N.T. p.

p. 110). Until

Until confronted

confronted by

by the

Commonwealth's attorney,

Commonwealth's attorney, Ms. Grady denied

Ms. Grady denied that

that Defendant

Defendant hit

hit anything

anything while

while driving.

driving. (N.T.

(N.T. p.

111).

11). When

When instructed

instructed not to omit

not to omit any

any portions,

portions, Ms. Grady read,her

Ms. Grady read her written statement as

written statement as follows:

follows:

Ms.

Ms. Grady:

Grady: And

And he would not.

he would On the

not. On the way

way here.

here. And then he decided

And then decided to on the

to on the way here

way here

and he

and he sideswiped

sideswiped some

some trash

trash cans and caused

cans and caused some

some damage

damage on

on the

the right side of

right side of the

the car.

car. I

yelled him to stop

yelled at him stop the car and

the car and pull

pull over

over and

and I'm driving. He

I'm driving. He then

then punched

punched me on the

me on the

side of my

side of my arm

arm with

with no injury or

no injury or harm

harm caused,

caused, told

told me

me to shut up,

up, bitch.

bitch. If

If you

you weren't so

weren't so

annoying this

annoying this wouldn't

wouldn't happen.

happen. IIsaid

said I

I wasn't saying anything.

wasn't saying anything. Again,

Again, you're probably

you're probably

drunk and

drunk and shouldn't

shouldn't be driving.

driving. Then

Then again made aastatement,

again made statement, what

what will it take

take for

for you

you to

stop and have

stop and have your

your kids or love

kids or love yourself or why?

yourself or why? After all I

After all I did

did for

for you,

you, you

you keep

keep outing

outing

us through

through this. And then we went into the parking

parking lot at Nan's.

(N.T. p.

(N.T. p. 111;

I; Exhibit 5).

Exhibit 5)

The Commonwealth

The Commonwealth called

called Lower Swatara Township

Lower Swatara Township Police Officer Dan

Police Officer Tingle as

Dan Tingle as aawitness.

witness.

Officer Tingle

Officer Tingle responded

responded to

to the 9-1-1 call

the 9-1-1 call at 147 B

at 147 Lane on

B Lane on January

January 5, 2022.

2022. (N.T.

(N.T. p. 95; Exhibit

p. 95; Exhibit

17A;

I7A; N.T. p.

p. 136). Tingle assisted Officer Thomas with placing

136). Office Tingle placing Defendant in the back of

Officer Thomas' patrol

patrol vehicle during investigation at the scene.

during the investigation scene. (N.T. p. 137). Officer

Tingle testified as

Tingle testified as to

to photographs

photographs he

he took of Ms.

took of Grady's vehicle.

Ms. Grady's vehicle. (N.T.

(N.T. p.

p. 137). Officer Tingle

137). Officer Tingle

testified that Ms.

testified that Grady stated

Ms. Grady stated that

that only the damage

only the damage to

to the

the front

front of

of the vehicle

vchicle as

as depicted

depicted in

in the

the

first photograph

photograph pre-dated January 5, 2022. Id.

pre-dated January photograph depicts

Id. The second photograph depicts aamirror hanging

abrasions. (N.T.

down and abrasions. (N.T. p.

p. 139).

139). As to that damage,

damage, Ms. Grady

Grady stated to Officer Tingle that

while Defendant drove from

from 147

147 B

B Lane to Cumbler Street, Defendant trash cans

Defendant struck several trash

and a

and autility

utility pole.

pole. Id.

Id.

DISCUSSION

A. The

A. The Commonwealth presented

Commonwealth sufficient evidence

presented sufficient evidence upon which the jury

upon which could find

jury could find

Defendant guiltv

Defendant of the

guilty of the crime

crime of

of Endangering

Endangering the

the Welfare of Children.

Welfare of Children.

Regarding

Regarding aachallenge

challenge to the of

to the of sufficiency

sufficiency of

of evidence

evidence our

our Superior Court has

Superior Court has reminded,

reminded,

Our review

Our of aasufficiency

review of claim is

sufficiency claim is well

well settled:

settled:

[W]e evaluate the

[Wle evaluate the record

record in the light

in the light most

most favorable

favorable to the verdict

to the verdict winner

winner giving the

giving the

prosecution

prosecution the benefit of all reasonable inferences to be drawn from the evidence.

Evidence will be deemed sufficient to support

support the verdict when it establishes each

material element of

material element of the

the crime

crime charged

charged and

and the

the commission

commission thereof

thereof by the accused,

by the accused,

beyond

beyond a a reasonable doubt. Nevertheless, the Commonwealth need not establish guilt to aa

mathematical certainty. Any

mathematical certainty. Any doubt about

about the

the defendant's

defendant's guilt

guilt is

is to

to be resolved

resolved by

by the

the fact

fact

finder

finder unless

unless the

the evidence

evidence is so weak

is so weak and

and inconclusive

inconclusive that, as aamatter

that, as of law,

matter of law, no

probability

probability of fact can be drawn from the combined circumstances.

The Commonwealth may

The Commonwealth sustain its

may sustain burden by

its burden means of

by means of wholly circumstantial evidence.

wholly circumstantial evidence.

..... Importantly,

Importantly, the jury, which passes

jury, which upon the

passes upon weight and

the weight and credibility

credibility of each witness's

of each witness's

testimony,

testimony, is free

free to

to believe part, or none of the

believe all, part, evidence.

the evidence

Commonwealth v. Sebolka, 205 336-37 (Pa.

205 A.3d 329, 336-37 (Pa. Super. 2019)

2019) (citations

(citations &&

quotation marks

quotation marks omitted).

Commonwealth v.v. Delamarter, A.3d 1195, 1201

1201 (Pa.

(Pa. Super. 2023).

A person

person is guilty of

is guilty of the crime of

the crime of Endangering the Welfare

Endangering the of Children

Welfare of Children ("EWOC") where:

(EWOC") where:

(1) A

(I) A parent,

parent, guardian or other

guardian or other person

person supervising

supervising the

the welfare of aachild

welfare of child under

under 18

I8 years

age, or

of age, or aaperson

person that

that employs supervises such aaperson, commits an offense

employs or supervises offense if he

knowingly endangers the

knowingly endangers welfare of

the welfare of the child by

the child by violating

violating aaduty

duty of

of care,

care, protection or

protection or

support.

(18 Pa.C.S.A.

(I8 Pa.C.S.A. §$ 4304).

4304).

In Commonwealh

In Commonwealh v.

• Delamarter, 302 A.3d

Delamarter, 302 A.3d 1195,

1195, 1201

1201 (Pa.

(Pa. Super. 2023) the

Super. 2023) the Superior Court

Superior Court

explained,

Section

Section 4304 of the

4304 of Code provides,

the Crimes Code provides, in in relevant

relevant part: "A parent

part: "A parent ... supervising the

... supervising the

welfare of achild under 18 years

welfare of a child under I8 years of age,

of age, ... commits an offense if he knowingly

... commits an offense if he knowingly

endangers

endangers the welfare of the child by

by violating

violating a a duty of care, protection

protection or support." 18

Pa.C.S. § 4304(a)(1). The Court

Pa.C.S. $ 4304(a)(1). The Court has developed

developed a three-part test for an EWOC

a three-part test conviction.

EWOC conviction.

The Commonwealth must

The Commonwealth must prove:

prove;

[(] 1) [T]he

[(I) accused [was]

[T[he accused aware of

[was] aware of his/her

his/her duty

duty to protect the

to protect child;

the child;

[(]2)

[(2) [T]he accused [was]

[T]he accused aware that

[was] aware that the child [was]

the child [was] in circumstances that

in circumstances that could

could.threaten

threaten

the child's physical

the child's or

or psychological

physical psychological welfare;

welfare; and

and

[(]3) [T]he

[(3) accused has

[TJhe accused either failed

has either to act

failed to or has

act or has taken action so lame

taken action lame or meager

meager that

that

such actions cannot reasonably

reasonably be expected protect

expected to protect the child's welfare.

Bryant,

Bryant, 57

57 A.3d at 197

A.3d at 197 (citations

(citations omitted). WeWe further

further note:

note:

Endangering

Endangering the welfare of a a child is aaspecific

specific intent offense enacted in broad

terms so as to safeguard the

to safeguard the welfare security of children. To be convicted

welfare and security convicted

under this statute,

statute, the Commonwealth must prove prove a of aaduty of

a knowing violation of

care.

Commonwealth

Commonwealth v.v. Foster, 764 A.2d

Foster, 764 A.2d 1076, 1082 (Pa.

1076, 1082 Super. 2000)

(Pa. Super. 2000) (citations

(citations omitted

omitted and

and

emphasis added).

A knowing

A knowing mens

mens rea

rea is

is defined

defined in

in the Crimes Code

the Crimes as follows:

Code as follows:

(b) culpability defined.--

(b) Kinds of culpability

(2) A person acts knowingly

(2)A knowingly with respect

respect to aamaterial element of an offense when:

(i}

(i) if

if the

the element involves the nature

nature of his

his conduct or the

the attendant

circumstances, he is aware that his conduct is of that nature or that such

circumstances,

circumstances exist;

circumstances exist; and

(ii)

(ii) •. if the element involves aaresult of his conduct, he is aware that it is

practically

practically certain that his conduct will

will cause such aaresult.

result.

18 Pa.C.S.

Pa.C.s. §$ 302(b)(2)(i)-(ii).

302(0)2)6-(i0).

Commonwealth v. Delamarter, 302 A.3d

A.3d 1195,1201-02 (Pa. Super. 2023)

1195, 1201--02 (Pa. 2023)

In Delamarter, just

just as in the

the instant case,

case, the defendant challenged

challenged the sufficiency of evidence

of the mens rea element EWOC,. There, the

element of the conviction of EWOC, the defendant told the

the officer

responding

responding to the

the accident that

that he was reading aatext and bumped

was reading bumped into

into the

the guardrail

guardrail on the

the

passenger side

passenger side of

of his car. The officer

his car. officer observed

observed Defendant's

Defendant's child

child standing

standing on

on the

the floor of the

floor of the

back seat of the car, uninjured.

uninjured. The defendant exhibited slow movements, sluggish, thick, and

speech, and constricted pupils.

slurred speech, pupils. Id. at 1198. The officer arrested the defendant for

suspicion of DUI and the defendant refused to submit to a

suspicion a blood test. The defendant asserted that

the Commonwealth failed to prove that he knowingly violated aaduty of care to his child because

the

the fact that he

he drove

drove under

under the

the influence

influence of aacontrolled substance is, alone,

alone, insufficient to

specific intent.

demonstrate specific

In affirming

affirming the defendant's conviction,

conviction, The Superior

Superior Court in Delamarter looked to

to the

Pennsylvania Supreme Court's sufficiency review in Commonwealth v.

Pennsylvania Supreme • Howard,257

257 A.3d 1217

(PA 2021).

(PA 2021). There,

There, the Supreme Court

the Supreme clarified that

Court clarified that the

the Commonwealth must prove

Commonwealth must that the

prove that the

defendant was

was aware of both their duty

duty of care to their child when transporting the child and that

endangered the

their conduct endangered the welfare

welfare of their child. Delamarter, at 1205,

1205, citing Howard, 257

257

A.3d 1225. The Delamarter Court explained:

explained:

With respect

respect to the latter component

component of the mens rea clement,

element, the defendant must be

aware that

aware that they

they have

have placed

placed the

the child in

in aaperilous dangerous situation, but

perilous or dangerous but they do

do not

not

have

have to be aware

aware of the certainty

certainty of aaparticular

particular result such as aacar accident:

[A] person violates Section 4304(a)(1)

4304(a( if he

he "knowingly endangers the welfare of the

"knowingly endangers

child by

child by violating

violating aaduty

duty of care, protection

of care, or support."

protection or support." 18

18 Pa.C.S.

Pa.C.S. §$ 4304(a)(1).

4304(a)(1).

"Endanger"

Endanger" is is defined, inter alia, as "to bring

bring into danger

danger or peril,"

peril," or "to create

createa

dangerous situation." https://www.merriam-webster.com/dictionary/endanger.

dangerous https://www.merriam-webster.com/dictionary/endanger. Thus, the

material element of Section 4304(a(I)

4304(a)(1) is the creation of a a perilous

perilous or dangerous

situation...

situation... We emphasize that,

We emphasize that, for purposes of

for purposes of Section

Section 4304,

4304, the

the requirement

requirement of of Section

Section

302(b)(2)(i)

302(b)02(i) that

that the accused be be "aware

"aware that it is

that it is practically

practically certain that

that his

his conduct will

cause such aaresult" does not require

require that he be certain of a a particular

particular harm or injury

injury— for

example,

example, in this case, a a car accident. Again, as it pertains

pertains to Section 4304, the result of

the actor's

the conduct is

actor's conduct the creation

is the creation ofof a

a dangerous

dangerous situation,

situation, which

which isis what Section

what Section

4304(a)(1) seeks to

4304(a)(1) seeks to prevent

prevent.

Id.

Id. (emphasis in original).

(emphasis original). Moreover,

Moreover, "in determining

determining what conduct violates the

the [EWOC]

[EWOC]

statute,

statute, `[t]he

'[the common sense of the community,

community, as well as the sense of decency, propriety

propriety

and the morality

morality which most people entertain is sufficient to apply the statute to each

particular case, and to individuate

particular case, individuate what particular

particular conduct is rendered

rendered criminal by it.'

it.'""

Id. at

at 1222

1222 n.9,

n.9, quoting

quoting Commonwealth v. Lynn, Pa. 541,

Lynn, 631 Pa. 541, 114

114 A.3d

A.3d 796, 818

818 (2015).

(2015)

Commonwealth v.v. Delamarter,

Delamarter, 302 A.3d

A.3d 1195, 1205-06

1205--06 (Pa.

(Pa. Super. 2023).

2023). See