Com. v. Dickson, S. ( 2020 )

J-A29031-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SEAN J. DICKSON :
:
Appellant : No. 550 WDA 2019
Appeal from the Judgment of Sentence Entered February 26, 2019
In the Court of Common Pleas of Armstrong County Criminal Division at
No(s): CP-03-CR-0000158-2018
BEFORE: BENDER, P.J.E., KUNSELMAN, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED JANUARY 2, 2020
Sean J. Dickson (Dickson) appeals from the judgment of sentence
imposed in the Court of Common Pleas of Armstrong County (trial court)
following his jury conviction of one count each of possession of a controlled
substance and endangering the welfare of a child (EWOC).1 Dickson
challenges his EWOC conviction on appeal. We are constrained to reverse his
conviction for EWOC.
On January 3, 2018, police executed a search warrant on the residence
of 432 Reynolds Avenue with the objective of confiscating narcotics. Dickson,
his then-girlfriend, Melonie Johns (Johns), and one female child (Child) were
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* Retired Senior Judge assigned to the Superior Court.
1 35 P.S. § 780-113(a)(16) and 18 Pa.C.S. § 4304(a)(1).
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present at the time of the search, in a bedroom. Police recovered from that
bedroom a lockbox containing five grams of crack cocaine and drug
paraphernalia (including razor blades and a scale) and a glass skull-shaped
cup on the tip of a dresser containing methamphetamine residue. The lockbox
was locked and the keys were on Dickson’s person.
On February 26, 2019, the trial court sentenced Dickson to a term of
not less than ten nor more than twenty-four months’ incarceration on the
EWOC offense and no further penalty on the possession of a controlled
substance charge. The grading of the EWOC offense was increased because
of the young age of the Child.2 Dickson filed a post-sentence motion that the
trial court denied. Dickson timely appealed and he and the trial court complied
with Rule 1925. See Pa.R.A.P. 1925(a)-(b).
Dickson challenges the sufficiency of the evidence supporting his EWOC
conviction.3 We begin by addressing his argument that the Commonwealth
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2See 18 Pa.C.S. § 4304(b)(2), infra (providing for increased grading where
child is under age of six).
3In Commonwealth v. Smith, 206 A.3d 551, 557 (Pa. Super. 2019), appeal
denied, 2019 WL 3886668 (Pa. filed Aug. 19, 2019), we stated:
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 weigh
the evidence and substitute our judgment for the fact-finder. In
addition, we note that the facts and circumstances established by
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failed to meet its burden regarding the intent element of the crime, i.e., that
he knowingly violated a duty of care to the Child, as it is dispositive of our
decision.4 (See Dickson’s Brief, at 13-17).
The EWOC statute provides, in relevant part, 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. § 4304(a)(1).
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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 finder 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.
(citation omitted).
4 Dickson also contends that the Commonwealth presented no evidence
showing that he was the parent, legal guardian or person supervising the
welfare of the Child, as required by the statute; it merely established his
cohabitation at the residence. He also contests the increased grading of the
offense because the evidence was insufficient to establish that the Child was
less than six years old.
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“[T]he [EWOC] statute is protective in nature, and must be construed
to effectuate its broad purpose of sheltering children from harm.”
Commonwealth v. Spanier, 192 A.3d 141, 150 (Pa. Super. 2018), appeal
denied, 203 A.3d 199 (Pa. 2019) (citation omitted). “The common sense of
the community, as well as the sense of decency, propriety and the morality
which most people entertain is sufficient to apply the statute to each particular
case, and to individuate what particular conduct is rendered criminal by it.”
Id. at 151 (citation omitted).
We are also mindful that “[t]he crime of endangering the welfare of a
child is a specific intent offense.” Commonwealth v. A.R.C., 150 A.3d 53,
57 (Pa. Super. 2016). “The intent element under section 4304 is a knowing
violation of a duty of care.” Id. (citation omitted). The three-prong standard
to establish the knowing element of intent of EWOC is the: “(1) accused must
be aware of duty to protect child; (2) accused must be aware that child is in
circumstances that could threaten child’s physical or psychological welfare;
and (3) accused either must have failed to act, or must have taken action so
lame or meager that actions cannot reasonably be expected to protect child’s
welfare.” Id. (citation omitted).
At trial, Police Officer Gregory Koprivnak, who participated in executing
the warrant, testified that the lockbox containing the crack cocaine had a lock
on it when he found it, and that police forcibly opened it. (See N.T. Trial,
10/11/18, at 24-25, 28-29). Detective Phillip Young testified that he broke
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the lockbox in order to open it. (See id. at 63). Regarding the
methamphetamine residue, the record reflects that it was located on an object
on the top of the dresser and that the small amount was residue and not
weighable. (See id. at 70, 98-101).
After review of the record, we agree with Dickson’s contention that the
mere possession of controlled substances located in items locked and/or
inaccessible to a child does not, by itself, threaten the child’s physical or
psychological welfare. Because we conclude that the evidence was insufficient
to sustain Dickson’s EWOC conviction, that conviction is reversed.
However, Dickson does not challenge his possession conviction on which
he was sentenced without further penalty. Guilt without penalty constitutes
a sentence. See 42 Pa.C.S. § 9721(a)(2); Commonwealth v. Williams,
997 A.2d 1205, 1206 (Pa. Super. 2010). Because our reversal of the EWOC
conviction upsets the trial court’s sentencing scheme, we must remand to the
court for resentencing on the possession of a controlled substance charge.
Conviction for EWOC reversed. Case remanded to the trial court for
resentencing on the controlled substance charge. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/2/2020
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