Com. v. Sumter, C. ( 2021 )


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  • J-S50044-20
    NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA,          :     IN THE SUPERIOR COURT OF
    :           PENNSYLVANIA
    Appellee               :
    :
    v.                   :
    :
    CLINTON SUMTER,                        :
    :
    Appellant              :          No. 3269 EDA 2018
    Appeal from the Judgment of Sentence Entered October 11, 2018
    in the Court of Common Pleas of Philadelphia County
    Criminal Division at No(s): CP-51-CR-0003982-2017
    BEFORE:      BENDER, P.J.E., SHOGAN, J. and STRASSBURGER, J.*
    MEMORANDUM BY BENDER, P.J.E.:                          Filed: April 30, 2021
    Appellant, Clinton Sumter, appeals from the judgment of sentence of an
    aggregate term of 11½ to 23 months’ incarceration, followed by 2 years’
    probation, imposed after he was convicted of endangering the welfare of a
    child (“EWOC”) (18 Pa.C.S. § 4304(a)(1)), and recklessly endangering
    another person (“REAP”) (18 Pa.C.S. § 2705). We affirm.
    We derive the following factual and procedural background from the
    record. On February 10, 2017, T.S. (born May 2012), was in the care of his
    maternal uncle, Appellant, when T.S. sustained severe burns covering 24% of
    his body. For several days in early February 2017, Appellant was taking care
    of T.S. They were staying at the home of Appellant’s ex-girlfriend, Syreeta
    Camp.1 On the morning of February 10, 2017, Appellant gave T.S. a bath
    1   Camp’s daughter, sister, and nephew also lived at Camp’s home.
    * Retired Senior Judge assigned to the Superior Court.
    J-S50044-20
    because he had wet himself on the couch. Camp was awakened to Appellant
    calling her into the bathroom, where she found Appellant upset, panicking,
    and “freaking out” because the water was too hot and she noticed blisters
    forming on T.S.’s hands and feet.       N.T., 7/2/2018, at 118, 123; N.T.,
    7/3/2018, at 23-24, 26. Camp filled the bathtub with cold water, placed T.S.
    in the tub to cool his burns, sent her nephew to buy burn creams and
    bandages, and applied them to T.S.’s burn wounds.
    Appellant and T.S. continued to stay at Camp’s home until February 16,
    2017. Appellant and Camp cared for T.S. during this time, with Camp applying
    creams, wrapping the wounds, and giving T.S. over-the-counter pain
    medication and fluids. While Appellant and Camp discussed taking T.S. to the
    hospital, they did not, nor did they seek medical treatment.
    On February 16, 2017, after an argument between Appellant and Camp,
    Appellant and T.S. left Camp’s home to stay at the home of his girlfriend,
    Taleka Moody.    The next day, February 17, 2017, Appellant texted Camp,
    saying “I can’t take care of [T.S.]. I’m [sic] have to send him somewhere.”
    N.T., 7/3/2018, at 15; Ex. C-5 at 13. Early the next morning, at about 1:45
    a.m. on February 18, 2017, T.S.’s father, L.S., picked up T.S. from Appellant
    and called for an ambulance.2       T.S. arrived at the emergency room of
    2 From the time of the incident on February 10, 2017, until T.S.’s father, L.S.,
    picked up T.S. from Appellant on February 18, 2017, L.S. was aware T.S. had
    been injured, but T.S. remained in Appellant’s care. There is conflicting
    evidence in the record as to whether L.S. visited T.S. during this time period
    or first saw T.S.’s injuries when he picked him up on the 18th of February.
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    Children’s Hospital of Philadelphia (“CHOP”) shortly thereafter and was
    immediately transferred to the pediatric burn unit at St. Christopher’s Hospital
    for Children in Philadelphia, where he stayed for over one month, until March
    23, 2017.
    T.S. remained in the intensive care unit (“ICU”) throughout his hospital
    stay, where he received critical care, surgical interventions, infection control,
    narcotic pain control, physical therapy, occupational therapy, nutrition,
    hydration, and social services.
    T.S.   required   six   surgeries    under   general   anesthesia   for   skin
    debridements (i.e., removal of dead skin) and skin grafting (both cadaver skin
    grafts and thickness grafts from his own body).3 He underwent near-daily
    intravenous (“IV”) sedation for dressing changes. He required transfusions
    and had feeding difficulties.      T.S. was largely bedridden and had to spend
    large parts of his hospitalization lying prone on his stomach, unable to bear
    weight on his buttocks and unable to use his hands and feet. T.S.’s burns
    over joints caused webbing, where the skin has limited mobility, and his
    wounds have an abnormal appearance due to the depth of the burns and the
    skin grafting. Upon discharge, T.S. was transferred to an in-patient acute care
    rehabilitation facility, where he remained for another month.
    3   At the time of trial, T.S. was scheduled to undergo further surgeries.
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    Based on the foregoing, Appellant was charged with REAP, EWOC,
    simple assault (child under 12) (18 Pa.C.S. § 2702), and aggravated assault
    (18 Pa.C.S. § 2701(b)(2)). On July 2-3, 2018, Appellant proceeded to a joint,
    non-jury trial with T.S.’s father.    At trial, the Commonwealth presented,
    consistent with the foregoing factual account, testimony of Detective Edward
    Enriquez, the detective assigned to the special victim’s unit and T.S.’s case,
    Camp, and Camp’s daughter Lachelle, along with, inter alia, T.S.’s medical
    records, photographs of T.S.’s injuries, police investigation reports, and text
    messages between Appellant and Camp.
    The Commonwealth also presented the expert testimony of Dr. Marita
    Lind, Director of Child Protection Program at St. Christopher’s Hospital. Dr.
    Lind is board-certified in pediatrics and child abuse pediatrics and was qualified
    as an expert in those areas. Dr. Lind consulted and examined T.S. at the
    hospital. She testified that T.S.’s injuries upon admission to St. Christopher’s
    Hospital were “burns to his hands and wrists, his feet and ankles, buttocks,
    and the underneath surface of his scrotum.” N.T., 7/2/2018, at 27. Covering
    24% of T.S.’s total body surface area, he suffered “very deep second-degree”
    partial thickness burns, which “are burns that have destroyed the tissue into
    the level of the dermis, but have not completely destroyed the dermis, and
    are all the way down to the muscle.” Id. at 27-28, 64.
    Dr. Lind opined that T.S. “sustained severe burns in a pattern indicative
    of immersion in a hot liquid” and the “pattern of injury [was] concerning for
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    non-accidental immersion.” N.T., 7/2/2018, at 96; Ex. C-2 at 17, 24; see
    also id. at 40. She further opined that “there is indication from the burn
    pattern that the child was not able to remove himself from the water.” Id. at
    96-97.   She explained that “when a body is exposed to hot liquid, and
    someone is able to move away from the hot liquid, there will be splash marks
    or irregularities of the border. If someone is still in hot liquid, then there will
    be a sharper demarcation,” which is when “a burn has a sharp edge” and “a
    clear border.” Id. at 48. Dr. Lind further testified that the edges of T.S.’s
    burns “being so defined raises concern that the child was still when he was in
    the hot liquid.” Id. at 49. The lack of an irregular border or splash marks on
    an immersion burn suggests the person was not moving to take that part of
    the body out of the hot liquid. Id. at 50-51. Dr. Lind explained as follows:
    [W]hen a person comes into contact with a hot liquid, the
    reflex is to protect the body from injury and withdraw the part of
    the body that’s being burned.
    It is very concerning when you have a pattern that involves
    both feet, both hands, and the buttocks, because it’s not a position
    that people can easily enter into a liquid without splashing. It is
    very concerning that none of the parts of the body were able to
    be lifted or removed.
    So the concern for child abuse is raised when you have no
    signs in the burn that there was the ability for the child to remove
    themselves from the injuring liquid.
    ***
    It’s concerning that all the areas were burned, because one
    would enter water with one foot or one hand or one side of your
    body rather than all of these points. So it’s concerning to me that
    the burn exists in these areas [of both hands, both feet, and
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    buttocks].   And it’s concerning that all the areas are severely
    burned.
    Id. at 51-52. Dr. Lind found “the lack of marks on the child indicating he tried
    to escape” to be “quite concerning.” Id. at 75. Dr. Lind acknowledged on
    cross-examination, however, that if the water temperature was hot enough,
    it is feasible T.S. was picked up and placed unknowingly in the hot water. Id.
    at 62-64.
    Dr. Lind opined T.S. experienced “very significant pain” immediately
    upon sustaining the burns and continuing for the nine days until he was
    hospitalized and received appropriate pain management. Id. at 36. In the
    hospital, T.S.’s pain continued to be severe and some days it was so acute it
    could not be controlled with pain medication.
    Dr. Lind testified that the severity of T.S.’s injuries would have been
    immediately apparent at the time of the incident (i.e., some of his skin would
    have immediately fallen off or blistered), and that the care provided by
    Appellant was inadequate. For a child T.S.’s age, she explained that proper
    treatment for his burn wounds is hospitalization in a pediatric burn center,
    medical treatment to the burned areas, pain control, and fluid and nutritional
    support. She testified that the delay in medical treatment increased T.S.’s
    risk of serious infection and dehydration; contributed to his fluid loss and
    volume depletion, which negatively affected his kidney function; and
    prevented him from receiving adequate pain management.
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    At the conclusion of the trial, the trial court found Appellant guilty of
    REAP and third-degree felony EWOC, and not guilty of aggravated assault and
    simple assault.4 Appellant was subsequently sentenced to a term of 11½ to
    23 months of incarceration, to be followed by 2 years of probation for EWOC,
    and a concurrent term of two years of probation for REAP. Appellant filed a
    timely notice of appeal, and timely complied with the trial court’s order to file
    a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. On
    February 12, 2020, the trial court advised that it would not file a Rule 1925(a)
    opinion because the trial judge who had been assigned to Appellant’s case was
    no longer sitting as a judge with that court.
    Appellant now presents the following issues for our review:
    A. Was not the evidence insufficient as a matter of law to sustain
    Appellant’s conviction for [EWOC], where the evidence
    presented by the Commonwealth failed to establish a knowing
    mens rea?
    B. Was not the evidence insufficient to raise the gradation of
    [EWOC] from a misdemeanor of the first degree to a felony of
    the third degree, where the evidence did not make out a course
    of conduct?
    Appellant’s Brief at 3 (suggested answers omitted).
    4 Camp and T.S.’s father, L.S., were similarly charged. N.T., 7/3/2018, at Ex.
    C-8 at 1. As noted above, Appellant and L.S. were tried jointly. The trial court
    found L.S. not guilty of all charges. Id. at 124-25. While not entirely clear
    from the record, it appears Camp entered into a plea agreement which
    resulted in her pleading guilty to EWOC. N.T., 7/2/2018, at 129. Camp
    testified at Appellant’s and L.S.’s joint trial as a cooperating witness for the
    prosecution.
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    Appellant’s first issue challenges the sufficiency of the evidence to
    support his EWOC conviction. “A challenge to the sufficiency of the evidence
    presents a question of law and is subject to plenary review.” Commonwealth
    v. Hitcho, 
    123 A.3d 731
    , 746 (Pa. 2015).
    In reviewing a sufficiency of the evidence claim, we must
    determine whether the evidenced admitted at trial, as well as all
    reasonable inferences drawn therefrom, when viewed in the light
    most favorable to the verdict winner, are sufficient to support all
    elements of the offense. Additionally, we may not reweigh the
    evidence or substitute our own judgment for that of the fact
    finder. The evidence may be entirely circumstantial as long as it
    links the accused to the crime beyond a reasonable doubt.
    Commonwealth v. Koch, 
    39 A.3d 996
    , 1001 (Pa. Super. 2011) (citations
    omitted). The factfinder is free to believe all, part, or none of the evidence
    presented. Commonwealth v. Frein, 
    206 A.3d 1049
    , 1063 (Pa. 2019).
    Appellant claims that the trial court erred in convicting him of EWOC
    because the Commonwealth failed to prove the requisite mens rea, i.e.,
    whether he acted knowingly. Appellant’s Brief at 12-21. Appellant argues
    that he did not act knowingly when he placed T.S. in the hot water without
    first checking the water temperature. Id. at 15-16. According to Appellant,
    it is “not common sense” to know “that placing a child into a bathtub in a
    regular residential apartment without checking the water temperature would
    place a child in the situation where his welfare is threatened to the extent that
    the flesh might be burned from his body.” Id. at 16-17. In addition, Appellant
    argues the same reasoning to justify his failure to seek medical treatment for
    T.S.’s injuries. Id. at 17. He claims that “hindsight is always 20/20” and he
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    did not know at the time that T.S. required medical treatment. Id. According
    to Appellant, “[t]hese burns initially would not have looked that bad” and
    because Appellant believed the burns were not serious, he did not know T.S.
    required medical treatment. Id. at 18.
    The crime of EWOC is defined, in relevant part, as follows: “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. § 4304(a)(1).5
    EWOC “is a specific intent offense which was enacted in broad terms to
    safeguard the welfare and security of children.” Commonwealth v. Fewell,
    
    654 A.2d 1109
    , 1117 (Pa. Super. 1995) (citation omitted). To be convicted
    under this statute, the Commonwealth must prove a “knowing violation of a
    duty of care.” 
    Id.
     (quoting Commonwealth v. Cardwell, 
    515 A.2d 311
    , 313
    (Pa. Super. 1986)).
    Moreover, this Court has employed a three-prong standard
    to determine whether the Commonwealth has met its burden of
    establishing the intent element of the EWOC offense. … [T]o
    support a conviction under the EWOC statute, the Commonwealth
    must establish each of the following elements: (1) the accused is
    aware of his/her duty to protect the child; (2) the accused is aware
    that the child is in circumstances that could threaten the child’s
    physical or psychological welfare; and (3) the accused has either
    failed to act or has taken action so lame or meager that such
    5Appellant does not dispute that he was a “person supervising the welfare of
    a child” as defined in the statute. See Appellant’s Brief at 15; see also 18
    Pa.C.S. § 4304(a)(3).
    -9-
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    actions cannot reasonably be expected to protect the child’s
    welfare.
    Commonwealth v. Wallace, 
    817 A.2d 485
    , 490-91 (Pa. Super. 2002)
    (citations and internal quotation marks omitted). Section 4304 is to be given
    meaning by reference to the common sense of the community and the broad
    protective purposes for which it was enacted. Commonwealth v. Taylor,
    
    471 A.2d 1228
    , 1231 (Pa. Super. 1984).
    Here, the trial court offered the following in support of Appellant’s EWOC
    conviction:
    [O]n the [EWOC] charge, and the [REAP] charge, that’s a
    different story [from the aggravated and simple assault charges].
    It is possible for me to believe that under the circumstances, it
    was more than you should have known that that water was too
    hot before you put [T.S.] in it. The circumstantial evidence tells
    me that anybody running that bath and preparing a four-year[-
    ]old for a bath would have seen when the water was running into
    the tub, that there was something different with the water than
    what you were accustomed to when you were bathing children in
    the past. And you having accepted the responsibility of care and
    supervision over that child, you were responsible for what you do
    and what you didn’t pay attention to.
    Furthermore, after the injuries took place, you, much more
    than [T.S.’s father, L.S.,] had an opportunity to really begin to
    understand the seriousness of these injuries. You were the one
    who had accepted supervision and control over that child. It is no
    defense that you left that[,] as your lawyer says, to [Camp’s]
    judgement [sic]. You had a duty to do more and you didn’t do
    more. So for that reason, that combination of reasons, I think
    you are guilty of [EWOC] at both ends of this; both in terms of the
    infliction of the injury and in terms of your failure of promptly to
    see to it that that child got the kind of hospital care that he
    [needed]. And that goes way beyond what I think or any other
    parent would think or any doctor would think, or any detective
    would think should have been done under these circumstances.
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    That goes directly to a duty you had, a responsibility you accepted,
    and the evidence that was there in front of your own eyes.
    ***
    So I find you guilty of [EWOC], and that is graded as a felony
    of the third degree. I also find you guilty of a misdemeanor,
    [REAP], because I think you recklessly endangered [T.S.] when
    you put him in water that you must have known was too hot, way
    too hot for a child to be bathing in it.
    N.T., 7/3/2018, at 126-28.
    We agree that the evidence presented at trial, viewed in the light most
    favorable to the Commonwealth, was sufficient to find Appellant guilty of
    EWOC. As noted supra, Appellant concedes he was supervising T.S.’s welfare.
    With respect to Appellant’s intent, the three-prong test was satisfied. First,
    there is no dispute Appellant was aware of his duty to protect T.S.          The
    Commonwealth proved the second prong of the test, that Appellant was aware
    that T.S. was in circumstances that could threaten his physical welfare. As
    this Court has explained, “[i]t is impossible to place [a] child in scalding hot
    bath water, either intentionally or recklessly causing bodily injury, without
    knowingly violating a duty of care by not checking the water before placing
    the child in the tub.” Commonwealth v. Coppedge, 
    984 A.2d 562
    , 563 (Pa.
    Super. 2009). And finally, the third prong, that Appellant failed to act or acted
    so inadequately, is satisfied. The evidence established that Appellant failed
    to check the water temperature before placing T.S. in the bathtub and failed
    to seek any medical treatment for T.S. following his being burned. The expert
    testimony established that T.S.’s injuries would be apparent immediately, as
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    his skin would have fallen off or blistered upon being so severely burned. As
    Dr. Lind testified, the actions Appellant did take after T.S. was injured were
    inadequate, rendering them “so lame or meager that such actions could not
    reasonably be expected to protect” T.S.’s welfare. See Wallace, 
    817 A.2d at 490-91
    .     The record contains sufficient evidence that Appellant knowingly
    placed T.S., age four, in scalding water, which caused severe burns, and
    knowingly failed to seek timely medical treatment. Accordingly, Appellant is
    not entitled to relief on this claim.
    Appellant’s next challenge is to the trial court’s gradation of his EWOC
    offense as a felony of the third degree. Appellant’s Brief at 22-25. He argues
    that if we conclude sufficient evidence existed to sustain his EWOC conviction,
    we “should find that the trial court erred in grading the charge as a felony of
    the third degree because the Commonwealth failed to establish a course of
    conduct.”    Id. at 22.    According to Appellant, “[t]here was no course of
    conduct. Rather, there was an evolving situation, at the end of which
    [Appellant] knew that the child needed more care than he could provide and
    he chose to relinquish him to father.” Id. at 24.
    “The proper grading of a criminal offense is an issue of statutory
    interpretation and implicates the legality of the sentence imposed.”
    Commonwealth v. Felder, 
    75 A.3d 513
    , 515 (Pa. Super. 2013) (citation
    omitted). “The interpretation of a statute is a pure question of law, and
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    therefore our standard of review is de novo and our scope of review is
    plenary.” 
    Id.
     (citation omitted).
    At the time of the incident, the EWOC statute established gradation as
    follows: “An offense under this section constitutes a misdemeanor of the first
    degree.   However, where there is a course of conduct of endangering the
    welfare of a child, the offense constitutes a felony of the third degree.” 18
    Pa.C.S. § 4304(b) (effective Jan. 29, 2007 – Aug. 27, 2017).6
    In interpreting the legislative language for “course of conduct,” this
    Court has explained that it is designed “to punish a parent who over days,
    weeks, or months, abuses his children.” Commonwealth v. Popow, 
    844 A.2d 13
    , 17 (Pa. Super. 2004). “Although the EWOC statute does not define
    ‘course of conduct,’ the phrase is clearly used in that context to differentiate
    the penalties for single and multiple endangering acts.” Commonwealth v.
    Kelly, 
    102 A.3d 1025
    , 1031 (Pa. Super. 2014).
    As noted supra, at the conclusion of trial, the trial court explained that
    it found Appellant had engaged in a course of conduct when he inflicted T.S.’s
    injuries and then failed to seek prompt and proper medical attention for
    several days. N.T., 7/3/2018, at 127. Upon review, we discern no error in
    the court’s decision. Appellant engaged in a course of conduct over the nine
    6 On August 28, 2017, the EWOC statute was amended to include, inter alia,
    additional factors that could elevate the grading of an EWOC conviction from
    a misdemeanor to a felony. The EWOC statute was amended after the incident
    at issue in this case and, thus, the prior version, as quoted supra, applies
    herein.
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    days between when T.S. was burned and when he received medical treatment
    at the hospital. During this period, Appellant (1) inflicted T.S.’s injuries, (2)
    failed to seek proper medical attention even though it was immediately
    apparent that T.S.’s injuries were so severe that a large area of T.S.’s skin
    had fallen off or blistered, and (3) continued to violate his duty of care to T.S.
    by failing to seek any medical treatment whatsoever. At no point did Appellant
    actually pursue medical care for T.S.; rather, he returned him to his father,
    who then immediately sought medical care upon seeing T.S.’s condition. The
    record evidence established that Appellant’s care of T.S. was inadequate, as
    T.S.’s condition worsened over the course of time he was in Appellant’s care
    and was not receiving medical treatment.        Because the evidence and trial
    testimony were sufficient to establish a course of conduct, the third-degree
    felony grading was appropriate.      Accordingly, Appellant’s second claim is
    meritless.
    Judgment of sentence affirmed.
    Judge Strassburger did not participate in the consideration or decision
    of this case.
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    J-S50044-20
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 4/30/21
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Document Info

Docket Number: 3269 EDA 2018

Filed Date: 4/30/2021

Precedential Status: Precedential

Modified Date: 4/30/2021