Com. v. Payne, P.

J-A33022-16
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
PARIS EMMANUEL PAYNE, :
:
Appellant : No. 1198 WDA 2015
Appeal from the Judgment of Sentence Dated April 20, 2015,
in the Court of Common Pleas of Allegheny County,
Criminal Division, at No(s): CP-02-CR-0016341-2014
BEFORE: LAZARUS, SOLANO, and STRASSBURGER, JJ.*
DISSENTING MEMORANDUM BY STRASSBURGER, J.:FILED: FEBRUARY 14, 2017
Because the evidence was insufficient to sustain Appellant’s conviction,
I dissent and offer the following analysis.
In analyzing the EWOC statute, we have observed 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 of their failure to act.
Commonwealth v. Miller, 600 A.2d 988, 992 (Pa. Super. 1992).
Instantly, the evidence at trial established that Appellant was actually
trying to protect P.Z. when he believed she was running away. The trial
court even acknowledged this series of events. See N.T. 4/20/2015, at 85-
86 (“[Father] didn’t even realize that grandmother lived within a stone’s
throw of where the mother lived; and that the little girl was going to see her
*Retired Senior Judge assigned to the Superior Court.
J-A33022-16
mother and her grandmother. [U]nfortunately, no one had that
conversation, or no one made that phone call.”).
Appellant, in an apparent effort to protect his daughter from going
somewhere he did not believe she was supposed to go, utilized questionable
judgment by grabbing her and swearing at her. The trial court stated:
I do believe Appellant is guilty of [EWOC], not just by physically
accosting her, but I believe the filthy language, where the fuck
are you going? I believe that whenever a man talks to his
daughter that way, to me, I believe that’s endangering the
welfare of a child, because of the psychological and emotional
effect that this man that hasn’t been in my life is confronting me
with.
Id.
Stated simply, this conduct does not rise to the level of criminality
which the EWOC statute is designed to prevent. Accordingly, the evidence is
insufficient to sustain Appellant’s conviction and his judgment of sentence
should be reversed.
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