Com. v. Boaz, A. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ALEXIS CAMILLE BOAZ :
:
Appellant : No. 2812 EDA 2022
Appeal from the Judgment of Sentence Entered October 10, 2022
In the Court of Common Pleas of Chester County Criminal Division at
No(s): CP-15-CR-0001701-2020
BEFORE: LAZARUS, J., KUNSELMAN, J., and PELLEGRINI, J.*
MEMORANDUM BY LAZARUS, J.: FILED NOVEMBER 30, 2023
Alexis Camille Boaz appeals from the judgment of sentence, entered in
the Court of Common Pleas of Chester County, after a jury convicted her of
one count each of endangering the welfare of children (EWOC)1 and simple
assault.2 Upon review, we affirm.
On November 4, 2019, around 6:30 a.m., Boaz was nearing the end of
her shift as a member of the support staff at Devereux, a facility in Chester
County offering residential services for children and adolescents living with
emotional, behavioral, and cognitive differences. Boaz engaged with a
fourteen-year-old, male resident of Devereux, W.W., who was calling female
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. § 4304(a)(1).
2 Id. at § 2701(a)(1).
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staff inappropriate names, kicking towards staff, and threw a small object in
their direction. Boaz verbally insulted W.W. Shortly thereafter, Boaz
physically engaged with W.W. and the two fell to the ground. Boaz held W.W.
down, hit his chest with her fists, and kicked or stomped him in the head
several times. Nursing staff assessed W.W. after the incident and called
ChildLine to report suspected child abuse. Nursing staff observed injuries in
the form of red marks on W.W.’s chest, back, arms, face, head, and neck.
After an evaluation, the nurse gave W.W. ice and placed him on bed rest.
Approximately four to five hours after the incident, W.W.’s mother came to
Devereux and brought him to Brandywine Hospital. Following his evaluation
at Brandywine Hospital, W.W. was placed on concussion protocol. Upon
release from the hospital, W.W. returned to his family home, rather than
Devereux, where he was later interviewed by police.
Following a three-day trial, a jury convicted Boaz of the above-stated
offenses. With respect to Boaz’s EWOC conviction, the jury specifically found
that, in the course of committing the offense, Boaz created a substantial risk
of death or bodily injury, increasing the grade of the offense to a third-degree
felony. See 18 Pa.C.S.A. § 4304(b)(1)(iii). The trial court ordered a pre-
sentence investigation report prior to sentencing. On October 10, 2022, the
Honorable Allison Bell Royer sentenced Boaz to two years of probation for her
conviction of EWOC, and a concurrent term of one year of probation for her
conviction of simple assault.
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On October 20, 2022, while still represented by trial counsel, Boaz filed
three pro se post-sentence motions.3 On October 31, 2022, trial counsel for
Boaz timely filed a notice of appeal. On December 29, 2022, this Court
ordered that the trial court conduct a Grazier4 hearing in response to a
November 18, 2022 petition filed by trial counsel requesting an allowance of
additional time for the appointment of replacement counsel. On January 24,
2023, following the Grazier hearing, the trial court concluded that Boaz was
not waiving her right to counsel and granted trial counsel’s motion to
withdraw. Subsequently, the trial court appointed new counsel to represent
Boaz on appeal. Boaz filed a timely court-ordered Pa.R.A.P. 1925(b) concise
statement of errors complained of on appeal. Boaz raises the following issues
for our review:
[1] Was [the Commonwealth’s] evidence insufficient for the jury’s
finding that [Boaz], in the course of committing the offense of
[EWOC], . . . created a substantial risk of death or serious bodily
injury?
[2] Did the trial court err in granting [the] Commonwealth’s
motion to preclude [from evidence the] Commonwealth’s
witness’s conviction for unsworn falsification to law enforcement?
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3 Hybrid representation is forbidden in this Commonwealth. See
Commonwealth v. Jette, 23 A.3d 1032 (Pa. 2011) (disapproving of pro se
filings by counseled appellants); Commonwealth v. Reid, 117 A.3d 777, 781
n. 8 (Pa. Super. 2015) (pro se post-sentence motion filed by defendant who
is represented by counsel is a legal nullity); Pa.R.Crim.P. 576(A)(4). We note
that Boaz’s trial counsel had filed a motion to withdraw as the attorney of
record and for the appointment of new appellate counsel prior to filing the
notice of appeal in this case. See Motions, 10/12/22.
4 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
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Appellant’s Brief, at 6.
In her first issue, Boaz claims that the evidence was insufficient for the
jury to convict her of EWOC where her conduct during the incident with W.W.
did not create a substantial risk of death or serious bodily injury. See
Appellant’s Brief, at 20. Boaz argues that there was insufficient evidence to
prove that she created a substantial risk of death or serious bodily injury, and,
therefore, the court improperly graded the offense as a third-degree felony.
See Appellant’s Brief, at 21-22. Boaz suggests that to prove she created a
substantial risk, the Commonwealth needed to present evidence she did so
“knowingly,” the culpability required for the commission of EWOC. See 18
Pa.C.S.A. § 4304(a)(1); id. at § 302(b), (d). Boaz further argues that the
Commonwealth failed to prove she was “practically certain” her conduct would
create a substantial risk of death or serious bodily injury, as it did not produce
any medical testimony or evidence of W.W.’s injuries after he was taken to
the hospital. See Appellant’s Brief, at 24.
In reviewing a challenge to the sufficiency of the evidence, we must
determine whether, viewing the evidence in the light most favorable to the
Commonwealth as verdict winner, together with all reasonable inferences
therefrom, the trier of fact could have found that each and every element of
the crimes charged was established beyond a reasonable doubt.
Commonwealth v. Randall, 758 A.2d 669, 674 (Pa. Super. 2000).
Furthermore, “it is within the province of the fact finder to determine the
weight to be given to the testimony and to believe all, part, or none of the
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evidence.” Commonwealth v. Moore, 648 A.2d 331, 333 (Pa. Super. 1994)
(citations omitted). “This standard is equally applicable to cases where the
evidence is circumstantial rather than direct[,] so long as the combination of
the evidence links the accused to the crime beyond a reasonable doubt.”
Commonwealth v. Swerdlow, 636 A.2d 1173, 1176 (Pa. Super. 1994)
(citation omitted). See also Commonwealth v. Chmiel, 639 A.2d 9, 10-11
(Pa. 1994). Moreover, we will not “substitute our judgment for that of the
factfinder; if the record contains support for the convictions they may not be
disturbed.” Commonwealth v. Brewer, 876 A.2d 1029, 1032 (Pa. Super.
2005) (quotations omitted). Finally, “[b]ecause evidentiary sufficiency is a
question of law, our standard of review is de novo and our scope of review is
plenary.” Commonwealth v. Diamond, 83 A.3d 119, 126 (Pa. 2013).
To convict someone of EWOC as a third-degree felony, the
Commonwealth must prove that the accused is 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,” that such a person “knowingly
endangers the welfare of the child by violating a duty of care, protection[,] or
support,” and that during the commission of that violation, the person
“created a substantial risk of death or serious bodily injury[.]” 18 Pa.C.S.A.
§§ 4304(a)(1), (b)(1)(iii) (emphasis added).5
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5 EWOC is graded as a misdemeanor of the first degree, unless the person
committing the offense did so as a course of conduct, created a substantial
(Footnote Continued Next Page)
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The standard for culpability is set out in statute as follows, in relevant
part:
(b) Kinds of culpability defined.--
(2) A person acts knowingly with respect to a material
element of an offense when:
(i) if the element involves the nature of his
conduct or the attendant circumstances, he is
aware that his conduct is of that nature or that
such circumstances exist; and
(ii) if the element involves a result of his
conduct, he is aware that it is practically certain
that his conduct will cause such a result.
***
(d) Prescribed culpability requirement applies to all
material elements.--When the law defining an offense
prescribes the kind of culpability that is sufficient for the
commission of an offense, without distinguishing among the
material elements thereof, such provision shall apply to all the
material elements of the offense, unless a contrary purpose plainly
appears.
18 Pa.C.S.A. § 302.
Boaz acknowledges that the information was amended to include the
third-degree felony grading for the single EWOC count and that the
Commonwealth’s intent to prove the “substantial risk” factor was set out prior
to trial. See Appellant’s Brief, at 22-23. Boaz also acknowledges that the
trial court properly instructed the jury on the additional factor and that the
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risk of death or serious bodily injury, or the conduct was both a course of
conduct and created a substantial risk. If any of those factors exist, then the
offense is graded at a higher felony level. See id.
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verdict sheet properly reflected a secondary question as to whether Boaz
created a substantial risk. Id. at 23, App. B. See also Commonwealth v.
Proctor, 156 A.3d 261, 269 (Pa. Super. 2017) (stating “the trial court must
frame the legal issues for the jury and instruct the jury on the applicable law,
[however] it must not usurp the power of the jury to be sole judge of the
evidence”).
In reviewing the record in this case, the evidence shows that three
witnesses testified they observed Boaz stomp or kick W.W., a fourteen-year-
old, in the face or shoulders, as well as hit him in the chest. First, Boaz’s co-
worker, Erick Smith, testified that he was preparing to end his shift on
November 4, 2019, when he was asked by a supervisor to support two female
co-workers with a difficult minor resident. See N.T. Trial, 6/1/22, at 50.
Smith observed Boaz and another staff member with W.W. Id. W.W. insulted
Boaz and the other staff member and “kick[ed] out [towards them.]” Id.Smith testified that Boaz called W.W. names, and, after a short time, Boaz
“rush[ed] in[,]” and Boaz and W.W. were “tussling a little.” Id. at 50-51.
Smith testified that Boaz “was holding [W.W.’s] shirt and stuff [and] holding
him down” after they fell to the ground. Id. at 59. Smith then stated that he
saw Boaz ball her fists and hit W.W. in the chest several times. Id. at 59-60.
Smith testified that Boaz got up and “start[ed] kicking [W.W.] in the head and
stuff with . . . boots [] with a hard [rubber sole.]” Id. at 60. Smith’s testimony
was clear that Boaz “stomp[ed]” W.W. on the head three to four times. Id.
at 61.
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Second, Sheronda King, another of Boaz’s co-workers, testified that she
was present during the altercation. King testified that Boaz had been alone in
the room with W.W. for a few minutes and that, when King entered the room,
Boaz and W.W. were “at each other” on the floor. Id., 6/2/22, at 48. King
testified that she tried to separate the two, but was unsuccessful, and saw
Boaz “on top of [W.W.] kicking him.” Id. W.W. was “on the ground in [] a
fetal position[]” and Boaz was “swinging her feet towards [W.W.]” Id. at 48-
49. King testified that she saw Boaz’s “foot connect with [W.W.] . . . .
[p]robably twice.”6 Id. at 49.
Third, W.W. testified that during the interaction, Boaz, King, and an
unidentified male staff member were blocking W.W.’s door, preventing him
from leaving the room. Id. at 202-03. W.W. stated that King and Boaz were
“instigating and calling [him] names and cursing at [him].” Id. at 204-05.
W.W. then stated that Boaz “tripped [him] and [he] fell on the floor.” Id. at
206. W.W. testified that, while he was on the ground, Boaz “stomped [his]
head in.” Id. at 207-08. W.W. stated he could see Boaz to the side of him
and could see the bottom of her shoe hit his face. Id. at 208. W.W. further
stated that he “lost consciousness” during the altercation after his head hit
the ground when Boaz kicked him. Id. at 208-09.
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6 Later in her testimony, King stated that she saw Boaz kick W.W. four times
and that there was “a lot going on” and she could not be sure if Boaz punched
W.W. Id. at 54.
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W.W. testified that, later that day, his mother took him to Brandywine
Hospital, where they took x-rays and scans of his head. Id. at 212. After
leaving the hospital, W.W. had to stay away from bright lights, limit his screen
time, and limit exercise. Id. at 213. W.W.’s mother also took photos of
W.W.’s injuries after the altercation, which were presented to the jury. See
id. at 217-18; Commonwealth Exs. 1 – 12, 16, 17 (admitted N.T. Trial,
6/2/22, at 217-18).
Viewed in the light most favorable to the Commonwealth, the testimony
and evidence presented at trial was sufficient to prove that Boaz created a
substantial risk of death or serious bodily injury as a result of her course of
conduct during the altercation with W.W. Randall, supra. Further, the jury,
as the trier of fact, was properly instructed on the definition of serious bodily
injury. See N.T. Trial, 6/3/22, at 235, 237. We conclude that the jury could
properly find that Boaz, particularly by repeatedly kicking or stomping on
W.W.’s head, knowingly created a substantial risk of death or serious bodily
injury. Thus, we conclude there was sufficient evidence for the jury to convict
Boaz of EWOC graded as a third-degree felony. See Randall, supra. See
also Commonwealth v. Santiago, 294 A.3d 482, 486 (Pa. Super. 2023)
(compiling cases and concluding that concussion was serious bodily injury).
Boaz’s second claim is that trial court erred by granting the
Commonwealth’s motion in limine to exclude from trial Smith’s, a
Commonwealth’s witness, more-than-ten-year-old conviction for unsworn
falsification to law enforcement. Appellant Brief, at 25. Boaz takes issue with
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the trial court’s determination that admission of a witness’s conviction would
have been more prejudicial than probative due to “the age of [the] conviction
coupled with the age of the witness at the time that it was incurred.” Id. at
32-33 (citation omitted). See Pa.R.E. 609(b)(1).
“Questions concerning the admissibility of evidence lie within the sound
discretion of the trial court, and a reviewing court will not reverse the [trial]
court’s decision on such a question absent a clear abuse of discretion.”
Commonwealth v. Harris, 884 A.2d 920, 924 (Pa. Super. 2005) (citations
omitted). “An abuse of discretion is not merely an error of judgment but is
rather the overriding or misapplication of the law, or the exercise of judgment
that is manifestly unreasonable, or the result of bias, prejudice, ill-will or
partiality, as shown by the evidence of record.” Commonwealth v. Hyland,
875 A.2d 1175, 1186 (Pa. Super. 2005) (citations omitted).
Pennsylvania Rule of Evidence 609 provides, in pertinent part:
(a) In General. For the purpose of attacking the credibility of any
witness, evidence that the witness has been convicted of a crime,
whether by verdict or by plea of guilty or nolo contendere, must
be admitted if it involved dishonesty or false statement.
(b) Limit on Using the Evidence After 10 Years. This
subdivision (b) applies if more than 10 years have passed since
the witness’s conviction or release from confinement for it,
whichever is later. Evidence of the conviction is admissible only if:
(1) its probative value substantially outweighs its
prejudicial effect; and
(2) the proponent gives an adverse party reasonable
written notice of the intent to use it so that the party
has a fair opportunity to contest its use.
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Pa.R.E. 609(a), (b)(1) & (2).
Convictions more than ten years old may be used upon a judge’s
determination that the probative value substantially outweighs the prejudicial
effect. See Pa.R.E. 609(b)(1). The Pennsylvania Supreme Court has held
that any prior convictions introduced “must be for a crime that reflects upon
the perpetrator’s veracity.” Commonwealth v. Roots, 393 A.2d 364, 366
(Pa. 1978). See also Commonwealth v. Bighum, 307 A.2d 255, 262 (Pa.
1973). The Supreme Court also stated a trial court should consider and
balance other factors before determining the admissibility of evidence in the
form of prior convictions for impeachment purposes, including:
1) the degree to which the commission of the prior offense reflects
upon the veracity of the []witness; 2) the likelihood, in view of the
nature and extent of the prior record, that it would have a greater
tendency to smear the character of the [witness] and suggest a
propensity to commit [a] crime [], rather than provide a legitimate
reason for discrediting him as an untruthful person; 3) the age
and circumstances of the [witness]; 4) the strength of the
prosecution’s case and the prosecution’s need to resort to this
evidence as compared with the availability to the defense of other
witnesses through which its version of the events surrounding the
incident can be presented; and 5) the existence of alternative
means of attacking the [witness’s] credibility.
Roots, 393 A.2d at 367. See also Commonwealth v. Randall, 528 A.2d
1326, 1328 (Pa. 1987).
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The conviction at issue was Smith’s conviction for unsworn falsification
to authorities7 in 2008. The Commonwealth made a motion to prohibit Boaz
from questioning Smith on the conviction on the basis that it was more than
ten years old. See N.T. Preliminary Hearing, 5/31/22, at 55. Following an
on-the-record discussion, the court briefly took the matter under advisement
before ruling on the record and granting the Commonwealth’s motion. Id. at
55-65. See also Trial Court Opinion, 5/4/23, at 13-16 (reproducing relevant
portions of transcript).
Applying the five-factor test set out above, Roots, supra, as it pertains
to Smith’s prior conviction, we find the trial court properly weighed the factors
and did not abuse its discretion in granting the Commonwealth’s motion in
limine. The first factor, the degree to which the offense reflects upon the
witness’s veracity and credibility, directly relates to a conviction of crimen
falsi. In the instant case, this was Smith’s only crimen falsi conviction. We
have held that a prior conviction of perjury, for example, may be admissible
well beyond the ten-year period. See Commonwealth v. Osborn, 528 A.2d
623, 627 (Pa. Super. 1987). Furthermore, a prior conviction of crimen falsi is
generally relevant to a jury’s determination of the witness’s testimony. See
Commonwealth v. Rivera, 983 A.2d 1211, 1228 (Pa. 2009);
Commonwealth v. Cascardo, 981 A.2d 245, 256 (Pa. Super. 2009). The
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7 18 Pa.C.S.A. § 4904.
Crimes of falsehood, such as unsworn falsification to
authorities, are commonly referred to as crimen falsi. See, e.g.,
Commonwealth v. Moser, 999 A.2d 602, 607 n.6 (Pa. Super. 2010).
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trial court, in its evaluation, noted that Smith’s conviction was related to an
unsworn statement, not under oath, and not necessarily predictive of his
veracity and credibility under oath. See Trial Court Opinion, 5/4/23, at 23.
The trial court was aware that the conviction was related to a firearms charge.
However, the firearms charge was nolle prossed and no additional information
was presented to the trial court as to the circumstances surrounding the
unsworn falsification conviction. See N.T. Preliminary Hearing, 5/31/22, at
57-58.
The second factor addresses the nature and extent of Smith’s prior
record and whether it would have a greater tendency to smear his character
than discredit him on the stand. Here, the conviction at issue was Smith’s only
crimen falsi conviction and the trial court had limited information as to the
circumstances, beyond its relation to a gun charge. The unsworn statement,
in conjunction with details about the gun charge, could tend to smear his
character, rather than simply discredit his testimony. But see Osborn, 528
A.2d at 627-28 (stating perjury, unlike other crimes, does not “suggest any
propensity” to commit crimes for which the defendant-witness was charged).
Judge Royer inquired into the third factor, Smith’s age and
circumstances, at the hearing. See N.T. Preliminary Hearing, 5/31/22, at 57.
The Commonwealth stated that Smith was 23 years old at the time of his
conviction, which occurred fourteen years prior to the trial. Id. The trial court
found that Smith’s young age at the time of his conviction and the old age of
the conviction to be a particularly compelling factor in favor of preclusion. Id.
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at 65. See Osborn, 528 A.2d at 628 (discussing ages of witnesses and
convictions).
The fourth factor considers the importance of the witness’s testimony
and whether the case turned on the credibility of the witness. See id. The
trial court recognized that Smith’s testimony was important as an individual
“involved in the same fracas,” N.T. Preliminary Hearing, 5/31/22, at 64, but
that he was not the only witness to provide testimony as to the events on the
day in question. The jury heard from King, W.W., and Boaz, and was also
shown photographs of W.W. following the incident.8 Smith was not the
Commonwealth’s sole witness for the purpose of establishing what happened
on the day in question and who was responsible for W.W.’s injuries.
Regarding the last factor, the existence of alternative means of
attacking Smith’s credibility, Boaz had several alternative means, which she
utilized at trial. Smith changed the details of his report by initially not stating
Boaz had caused W.W.’s injuries. See N.T. Trial, 6/1/22, at 65-67, 72-74,
81-82. Indeed, it was suggested that Smith may have been motivated to
point the finger at Boaz to avoid being personally implicated in the incident,
id. at 70-72, 74-78, 80-82, 86-103, 123-25, and it was even acknowledged
at the preliminary hearing that Boaz had “plenty to explore without [the
crimen falsi.]” N.T. Preliminary Hearing, 5/31/22, at 65.
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8 See supra pp. 7-8.
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Upon review of the record, and balancing the relevant factors set forth
above, we find that the trial court did not abuse its discretion in granting the
Commonwealth’s motion in limine. See Harris, supra.Judgment of sentence affirmed.
Date: 11/30/2023
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