Com. v. Kerstetter, B. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BRENDA L. KERSTETTER :
:
Appellant : No. 1367 MDA 2019
Appeal from the Judgment of Sentence Entered June 12, 2019
In the Court of Common Pleas of Snyder County
Criminal Division at No(s): CP-55-CR-0000342-2018
BEFORE: PANELLA, P.J., STABILE, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY PANELLA, P.J.: FILED: APRIL 27, 2020
Appellant, Brenda Kerstetter, appeals from her judgment of sentence
entered by the Court of Common Pleas of Snyder County for endangering the
welfare of children and harassment. We affirm.
Appellant has a commercial driver’s license and, for several years, drove
a school bus to bring children to a vacation bible school at Kreamer Bible
Baptist Church in Snyder County. On June 15, 2018, Appellant was
transporting a busload of children to the bible school. Those children included
Appellant’s daughter, Alisha Kerstetter, as well as 14-year-old Jenay Aikey
and Jenay’s boyfriend, 16-year-old Jonathan Schlief. Appellant was also
driving children from a daycare and their two adult chaperones to the bible
school.
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During the bus ride, Alisha admonished Jenay for holding hands with
Jonathan as that was against the rules of the bible school. This quickly
escalated into an altercation, with Jenay grabbing Alisha by the hair. One of
the chaperones from the daycare alerted Appellant to the fact that there was
an incident occurring towards the rear of the bus.
Appellant stopped the bus alongside a back country road. She walked
to the back of the bus, grabbed Jenay by the hair and pulled her into the aisle
of the bus. Jenay, in turn, grabbed Appellant’s hair and began yelling and
cursing. Appellant pulled Jenay by the hair to the front of the bus, removed
her from the bus and closed the bus’s doors. Appellant did not ask either of
the daycare chaperones for assistance, nor did they intervene. However,
Jonathan asked to leave the bus so that Jenay would not be left alone.
Appellant complied, but before letting Jonathan off the bus, Appellant told him
that he should stay away from girls like Jenay.
Appellant drove away, leaving Jenay and Jonathan on the side of the
road. Although Jonathan had a cell phone, he testified that he did not have
good service where Appellant had left them. Both Jenay and Jonathan testified
that they did not know where they were, but began walking to try “to find a
road [they] knew to go home.” N.T. Trial, 2/26/19, at 65.1
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1 The area where Appellant left Jenay and Jonathan was described as “a
village” with some houses. N.T. Trial, 2/26/19, at 36. Appellant described it in
her statement to the police as “in the middle of nowhere.” Id. at 30.
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Appellant did not call anyone at that time. Rather, Appellant transported
the rest of the children and the two adult chaperones to the bible school at
the church. She then retrieved some more children from a different daycare
and returned to the church. Once there, Appellant called Jenay’s mother, Kelly
Aikey, to inform her about what had transpired on the bus. Ms. Aikey testified
that Appellant would not tell her the location of her daughter, so she hung up
on Appellant. Before hanging up, however, Ms. Aikey asked if Jonathan was
with her daughter and Appellant responded that he was.
Eventually, Ms. Aikey was able to reach Jonathan on his phone. She
testified that “[Jonathan] had no idea where he was, neither did Jenay, neither
did I” but “after about 25 minutes I finally found them.” See id. at 41. At that
point, Jenay and Jonathan were almost two and one-half miles from the spot
where Appellant had left them. See id. at 25. Ms. Aikey and Jenay reported
the incident to police.
Appellant was charged with endangering the welfare of children,
recklessly endangering another person, disorderly conduct and the summary
offense of harassment. Following a trial on February 26, 2019, a jury found
Appellant guilty of endangering the welfare of children. The trial court found
Appellant guilty of harassment. On June 12, 2019, Appellant was sentenced
to one year of probation for the endangerment of children conviction and 90
days of probation for the harassment conviction. Appellant filed a post-
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sentence motion, which the trial court denied on August 13, 2019. This timely
appeal followed.2
Appellant first argues that the evidence was insufficient to support her
conviction for endangering the welfare of children. This claim fails.
“Evidence presented at trial is sufficient when, viewed in the light most
favorable to the Commonwealth as verdict winner, the evidence and all
reasonable inferences derived therefrom are sufficient to establish all
elements of the offense beyond a reasonable doubt.” Commonwealth v.
Blakeney, 946 A.2d 645, 651 (Pa. 2008) (citation omitted). The
Commonwealth may sustain its burden entirely by circumstantial evidence and
the jury, which passes upon the weight and credibility of each witness’s
testimony, is free to believe all, part or none of the evidence. See
Commonwealth v. Ramtahal, 33 A.3d 602, 607 (Pa. 2011).
The offense of endangering the welfare of children is defined by 18
Pa.C.S.A. § 4304 (a)(1), which provides:
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
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2 Appellant’s notice of appeal stated that she is appealing from the “verdict of
the trial held on February 26, 2019, and specifically from its finding of guilt
for Count 1, Endangering the Welfare of Children.” Notice of Appeal, 8/19/19,
at 1. We remind counsel that in criminal cases, “appeals lie from judgment of
sentence rather than from the verdict of guilt.” Commonwealth v. O’Neil,
578 A.2d 1334, 1335 (Pa. Super. 1990). However, because the trial court
entered a judgment of sentence for the endangering the welfare of children
count, which Appellant noted in her notice of appeal, we see no procedural
impediment to reaching the issues raised by Appellant in this timely appeal.
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offense if he knowingly endangers the welfare of the
child by violating a duty of care, protection or support.
Id. Therefore, to sustain a conviction under Section 4304(a)(1), the
Commonwealth must prove that a defendant: (1) was supervising the welfare
of a child under the age of 18; (2) knowingly endangered the welfare of the
child; and (3) violated a duty of care to the child. See id. In determining the
Commonwealth had presented sufficient evidence to do so here, the trial court
stated:
The Commonwealth presented sufficient
evidence that [Appellant] was a person supervising
the welfare of children under the age of eighteen in
her capacity as the bus driver for the vacation bible
school. Likewise, the jury received sufficient evidence
that [Appellant] endangered the welfare of [Jenay]
Aikey when she removed [her] from the bus and
allowed [Johnathan Schlief] to leave the bus on a
country road several miles from home or the bible
school, without notifying anyone, including officials at
the bible school, parents or authorities.
The jury also received sufficient evidence and
the reasonable inferences derived from that evidence
to find [Appellant] acted knowingly. [Appellant] drove
the vacation bible school bus. She had a history as a
school bus driver. From this evidence the jury could
find that she was aware of her duty towards the
children on the bus. The actions she took in throwing
[Jenay] Aikey off the bus on a country road and not
notifying anyone about her actions could not be
reasonably expected to protect the child’s welfare.
Trial Court Opinion, 8/13/19, at 4.
Appellant now argues that the trial court improperly found that the
Commonwealth had proven the intent element of the offense because she did
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not knowingly endanger the welfare of Jenay or Jonathan. This Court has
stated that in order to show that a person knowingly endangered the welfare
of a child, the Commonwealth must establish that the person: (1) was aware
of her duty to protect the child; (2) was aware that the child was in
circumstances that could threaten the child’s physical or psychological
welfare; and (3) failed to act or took actions so meager that they could not
reasonably have been expected to protect the child’s welfare. See
Commonwealth v. Smith, 956 A.2d 1029, 1038 (Pa. Super. 2008).
Appellant first claims that the Commonwealth did not meet this standard
here because her actions did not cause Jenay or Jonathan any physical or
psychological harm. This argument, however, ignores the fact that in order to
establish that Appellant knowingly endangered the welfare of Jenay and
Jonathan, the Commonwealth needed to show only that Appellant was aware
that she placed Jenay and Jonathan in circumstances that could have
threatened their physical or psychological welfare. Contrary to Appellant’s
argument, it is clear the jury could have reasonably inferred that Appellant
was aware that abandoning Jenay and Jonathan on the side of the road, in the
“middle of nowhere” and miles from home, could have threatened their
physical or psychological welfare.
Appellant also argues that there was insufficient evidence to convict her
of endangering the welfare of Jenay and Jonathan because she was simply
trying to protect her daughter and the other children on the bus and merely
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made a “mistake in judgment” in trying to accomplish that by removing Jenay
from the bus. Appellant’s Brief at 20. In making this argument, Appellant relies
on Commonwealth v. Pahel, 689 A.2d 963 (Pa. Super. 1997), and in
particular, the following language from that decision:
Utilizing a common sense of community approach to
interpret the specific intent element of the statute, we
find implicit recognition that parents at times can
make mistakes in judgment and that their children
may be harmed as a result. However, for such
mistakes to rise to the level of criminal culpability,
parents must knowingly allow their children to be at
risk with awareness of the potential consequences of
their actions or failure to act.
Id. at 965 (Pa. Super. 1997) (citation omitted).
Appellant’s reliance on Pahel is misplaced. In Pahel, a child had
swelling around his nose and discoloration under both eyes. The mother
waited three days before seeking medical attention and was consequently
charged with, and subsequently convicted of, endangering the welfare of her
child. In reversing that conviction, this Court found that there was not
sufficient evidence to show the mother knew the delay in seeking medical
attention for her child created a risk, with an awareness of the potential
consequences, to the child’s welfare. Pahel, 689 A.2d at 967.
The circumstances here differ significantly from those in Pahel.
Appellant removed one child from her bus and allowed another child to exit
that bus and then purposefully drove away from them, leaving them on the
side of an unfamiliar country road. She now claims she did so as a means of
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protecting her daughter and the other children on the bus. However, if
Appellant was truly concerned for the safety of the other children on the bus,
there were other courses of action she could have taken. She could have asked
the other two adults on the bus for help or she could have promptly called the
police, the pastor at the vacation bible school or the parents of Jenay or
Jonathan.
Appellant did none of those things. Instead, she left Jenay and Jonathan
at an undesignated stop on a back road and then drove away without calling
anyone to let them know where the children were. Utilizing a common sense
of the community approach, we find that it was certainly reasonable for the
jury to have inferred that Appellant knew these actions created a risk to the
welfare of Jonathan and Jenay.
To be clear, we do not in any way condone Jenay’s behavior. We have
great empathy for people charged with supervising the welfare of children -
whether it be parents/guardians, teachers or bus drivers - who are confronted
with situations involving children acting in an unruly manner. However, it is
the duty of the supervisory figure to respond to those situations in a way that
does not place the children in their care at risk of harm. A jury could
reasonably find that abandoning two children on the side of a country road
without notifying anyone of their whereabouts a violation of that duty. As
such, we agree with the trial court that there was sufficient evidence to sustain
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the jury’s finding that Appellant was guilty of endangering the welfare of Jenay
and Jonathan.
Next, echoing the arguments she made above, Appellant asserts that
her conviction for endangering the welfare of children was against the weight
of the evidence. This claim also fails.
“The weight of the evidence is exclusively for the finder of fact who is
free to believe all, part or none of the evidence and to determine the credibility
of witnesses.” Commonwealth v. Small, 741 A.2d 666, 672 (Pa. 1999)
(citation omitted). When considering a claim that the verdict is against the
weight of the evidence, a “trial court should award a new trial on this ground
only when the verdict is so contrary to the evidence as to shock one’s sense
of justice.” Commonwealth v. Chamberlain, 30 A.3d 381, 396 (Pa. 2011)
(citation omitted).
Appellate review of a weight claim is not a reevaluation of the underlying
question of whether the verdict is against the weight of the evidence. See
Commonwealth v. Champney, 832 A.2d 403, 408 (Pa. 2003). Rather, our
standard of review is limited to determining whether the trial court palpably
abused its discretion in concluding that the verdict was or was not against the
weight of the evidence. See id. We will find an abuse of discretion only if the
trial court misapplied the law, reached a manifestly unreasonable judgment
or based its decision on partiality, prejudice, bias or ill-will. See
Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013).
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In finding that Appellant’s verdict was not against the weight of the
evidence, the trial court pointed to the Commonwealth’s evidence that it had
referenced in rejecting Appellant’s sufficiency claim. Based on that evidence,
including Appellant’s actions in “throwing [Jenay] off the bus on a country
road and not notifying anyone about her actions,” the trial court concluded
that the verdict in no way shocked its sense of justice. Trial Court Opinion,
8/13/19, at 4.
Appellant does not argue, much less establish, how the trial court
abused its discretion in reaching this conclusion. Instead, Appellant merely
recycles her underlying argument that the verdict, contrary to what the trial
court found, was in fact against the weight of the evidence. Such an argument
misconstrues our limited standard of review of a trial court’s decision that the
verdict was not against the weight of the evidence. See Champney, 832 A.2d
at 408. We look only to see if the trial court abused its discretion, and if we
find that it did not, as in the instant case, the trial court’s decision must stand.
See id. This claim warrants no relief.
Appellant asserts in her final claim that the trial court abused its
discretion by not allowing defense counsel to recall “certain witnesses” to the
stand for further cross-examination during her case-in-chief. Appellant’s Brief
at 23. This claim also fails.
In the first instance, Appellant’s very sparse argument regarding this
claim fails to identify exactly which witnesses she now asserts the trial court
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should have allowed her to recall. This Court has repeatedly reminded
appellants that it is not our “duty to comb through the record seeking the
factual underpinnings of [their] claim.” Commonwealth v. Samuel, 102 A.3d
1001, 1005 (Pa. Super. 2014). Appellant also does not attempt to explain to
this Court why she wished to recall the unidentified witnesses. Given
Appellant’s complete failure to develop her claim in any meaningful way, we
have no reservation in finding that Appellant has waived her claim. See
Commonwealth v. Love, 896 A.2d 1276, 1287 (Pa. Super. 2006) (stating
that claims that are not sufficiently developed are waived).
Even if not waived, we would find the claim to be without merit. In its
opinion, the trial court identified the witnesses defense counsel wished to
recall as Jenay and Ms. Aikey. Counsel wanted to recall them after the
Commonwealth had rested its case and after the defense had presented its
case in order to ask Jenay and Ms. Aikey about allegedly inconsistent prior
statements they had made to the investigating police officer. The
Commonwealth objected. In sustaining the objection, the trial court noted that
defense counsel had ample opportunity to ask Jenay and Ms. Aikey about any
prior inconsistent statements while cross-examining them during the
Commonwealth’s case-in-chief.
In her brief to this Court, Appellant does not suggest that defense
counsel was prevented in any way from asking Jenay and Ms. Aikey - or any
other witness for that matter - about statements they had previously made to
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the police during his cross-examination of them. Instead, Appellant asserts,
without further explanation, that “the trial court initially told counsel he would
allow the witnesses to be recalled … [and counsel] relied on this ruling and it
was an abuse of discretion for the trial court to reverse its earlier ruling.”
Appellant’s Brief at 24.
As the Commonwealth points out, however, the trial court consistently
ruled that it was not going to allow defense counsel to recall any witnesses to
ask them about prior statements to the police. The record reflects that it was
the court’s position all along that defense counsel had the opportunity to ask
those questions during his cross-examination of those witnesses and the court
was not going to grant counsel a second chance to do what he could have
done at that time. See N.T. Trial, 2/26/19, at 182 (telling defense counsel
that “if you wish to recall them for further cross examination, I’ll permit you
to do that. If you’re going to cross[-] examine them on their prior statements,
you should have done that in your cross before.”); see id. at 195-99 (denying
defense counsel’s attempt to recall witnesses to question them about prior
statements made to the investigating officer because counsel had the
opportunity to do that during cross-examination).
Therefore, even if Appellant’s claim was not waived, we would find it
was without merit. Appellant has simply not shown that the trial court abused
its discretion by not allowing defense counsel to recall witnesses to ask them
questions he had the opportunity to ask when cross-examining them during
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the Commonwealth’s case-in-chief. See Commonwealth v. Chambers, 685
A.2d 96, 109 (Pa. 1996) (stating that the decision of whether to permit a party
to recall witnesses and present additional evidence is within the sound
discretion of the trial court and will not be reversed absent an abuse of that
discretion). No relief is due.
Judgment of Sentence Affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 04/27/2020
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