Com. v. Stephenson, V.

J-S12004-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
VAUGHN T. STEPHENSON :
:
Appellant : No. 389 MDA 2022
Appeal from the Judgment of Sentence Entered February 1, 2022,
in the Court of Common Pleas of Luzerne County
Criminal Division at No(s): CP-40-CR-0000021-2020.
BEFORE: KUNSELMAN, J., McCAFFERY, J., and COLINS, J.*
MEMORANDUM BY KUNSELMAN, J.: FILED: JUNE 2, 2023
Vaughn T. Stephenson appeals from the judgment of sentence entered
following his convictions for endangering the welfare of a child and possessing
a small amount of marijuana for personal use.1 We affirm.
The trial court summarized the facts of the case as follows:
[O]n November 27, 2019, officers from the Wilkes-Barre City
Police Department responded to a disabled vehicle call at 86 West
Chestnut Street, Wilkes-Barre City. Officer Casarella of the
Wilkes-Barre City Police Department responded to the call and
conducted a check of the registration of the vehicle which
identified [Stephenson] as the vehicle owner. A subsequent
records check returned information that [Stephenson] resided at
that address and further that he had an active felony warrant.
Officer Casarella knocked on the door at 86 West Chestnut Street
and [Stephenson] answered the door. He was advised that he
was being placed under arrest in satisfaction of the then
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. § 4304(a)(1) and 35 P.S. § 780-113(a)(31)(i).
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outstanding arrest warrant. [Stephenson] asked police to allow
him to re-enter the residence to check on his child and put on his
sneakers. [Stephenson] consented to officers entering the
residence with him while he checked on his infant daughter and
put on his sneakers.
Once inside[,] police detected a strong odor of marijuana
inside the residence. A pair of digital scales, suspected marijuana
and packaging materials were observed in plain view inside the
living room area. [Stephenson’s] then [13-month-]old child was
seated on a couch near the suspected marijuana and drug
paraphernalia. Also located in plain view, and later seized . . .
pursuant to a search warrant, was an unsecured and loaded .45
caliber Hi-point handgun located approximately two[2] . . . feet
away from [Stephenson’s] child.
Officers observed that the interior of [Stephenson’s]
residence was in an unsanitary condition. Strong rotting food and
excrement odors permeated the residence. Suspected excrement
was observed in an unflushed toilet and spoiled food items were
observed throughout the kitchen. The house was in a deplorable
condition and after a code enforcement inspection the residence
was condemned for being unfit for human habitation. Officers
secured the residence and made arrangements for the safe
placement of the child.
Trial Court Opinion, 8/4/22, at 1–2.
Police charged Stephenson in connection with this incident, and the case
proceeded to court. Following trial, a jury found Stephenson guilty of
endangering the welfare of a child, and the trial court convicted him of
possessing a small amount of marijuana.3 On February 1, 2022, the court
sentenced Stephenson to 18 to 36 months of incarceration and 30 days of
concurrent probation.
____________________________________________
2Stephenson contends that the distance between the child and the handgun
was approximately five feet.
3The jury found Stephenson not guilty of possession of a firearm and drug
paraphernalia.
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Stephenson timely appealed. Stephenson complied with Pennsylvania
Rule of Appellate Procedure 1925(b). The trial court entered a Rule 1925(a)
opinion on August 4, 2022.
Stephenson raises one issue for review: “Did the Commonwealth fail to
establish, beyond a reasonable doubt, that [Stephenson] knowingly violated
a duty of care, protection or support owed to a child in violation of 18
Pa.C.S.[A.] § 4304(a)(1)?” Stephenson’s Brief at 2. Stephenson contends
that the evidence was insufficient to establish that (1) he created a dangerous
situation or was aware that his conduct exposed the child to a dangerous
situation and (2) his conduct offended the common sense of the community.
Id. at 7–8.
This Court reviews a challenge to the sufficiency of the evidence under
the following well-settled principles:
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 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 [trier] of fact while passing upon the
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credibility of witnesses and the weight of the evidence produced,
is free to believe all, part or none of the evidence.
Commonwealth v. Holt, 270 A.3d 1230, 1233 (Pa. Super. 2022) (quoting
Commonwealth v. Jackson, 215 A.3d 972, 980 (Pa. Super. 2019)).
The crime is set forth by statute: “A parent . . . commits an offense if
he knowingly endangers the welfare of a child by violating a duty of care,
protection or support.” 18 Pa.C.S.A. § 4304(a)(1). “Knowingly” is defined:
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.
18 Pa.C.S.A. § 302(b)(2).
We have thus articulated the elements of the offense as follows:
(1) the accused must be aware of his or her duty to protect the
child; (2) the accused must be aware that the child is in
circumstances that could threaten the child’s physical or
psychological welfare; and (3) the accused either must have failed
to act, or must have taken action so lame or meager that such
actions cannot reasonably be expected to protect the child’s
welfare.
Commonwealth v. Sebolka, 205 A.3d 329, 337 (Pa. Super. 2019) (quoting
Commonwealth v. Smith, 956 A.2d 1029, 1038 (Pa. Super. 2008))
Additionally, our courts have noted that this statute is “designed to
cover a broad range of conduct in order to safeguard the welfare and security
of children.” Commonwealth v. Krock, 282 A.3d 1132, 1138 (Pa. Super.
2022) (ellipsis omitted) (quoting Commonwealth v. Mack, 359 A.2d 770,
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772 (Pa. 1976)). The specific conduct that the statute proscribes depends on
“[t]he common sense of the community, as well as the sense of decency,
propriety and the morality which most people entertain.” Mack, 359 A.2d at
772 (quoting Commonwealth v. Marlin, 305 A.2d 14, 18 (Pa. 1973)).
Notably, the statute does not require proof of actual injury.
Commonwealth v. Wallace, 817 A.2d 485, 491–92 (Pa. Super. 2002). In
Wallace, the defendant allowed his eight children to live in “terrible”
conditions, with flies, maggots, and mice in the house, dirt and spoiled food
on the walls, non-functioning heating and plumbing, and a hole in the roof
that caused the floor to rot away. Id. at 488–91. Based on the lack of a
heating system, the poor structural condition, and unsanitary conditions, the
city code inspector condemned the home. Id. We held the evidence sufficient
to establish that the defendant was aware that the children were exposed to
a risk of harm yet failed to try to improve the conditions; we therefore affirmed
his judgment of sentence. Id. at 492–93.
Our Supreme Court addressed endangering the welfare of children in a
recent plurality decision involving a mother allowing her three-year-old to ride
unrestrained in a car-for-hire. Commonwealth v. Howard, 257 A.3d 1217,
1219 (Pa. 2021) (opinion announcing the judgment of the court (OAJC)). Six
of seven Justices agreed that the evidence was insufficient to sustain her
conviction for endangering the child’s welfare. Justices Todd and Donohue
reasoned that the offense requires that the defendant knew that her actions
would endanger the child; the “common sense of the community” prevented
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such a finding under the facts of the case. Id. at 1227, 1230. Justice Saylor
would have applied the rule of lenity to conclude that the statute did not
proscribe the defendant’s conduct. Id. at 1231 (Saylor, J., concurring).
Justice Dougherty and Chief Justice Baer read the statute to require that the
defendant was aware of the creation of a dangerous situation and aware that
she violated a duty of care; they found no evidence to prove the latter
element. Id. at 1231–32 (Dougherty, J., concurring). Justice Wecht would
have abandoned “the common sense of the community” as a basis to
determine what conduct is proscribed; he would have found the evidence
insufficient to prove the required elements that the defendant knowingly
violated a legal duty and created a situation that she knew would endanger
the child. Id. at 1233–39 (Wecht, J., concurring).
The precedential effect of a plurality decision like Howard depends on
whether a majority of the court agreed on a holding. See Commonwealth
v. McClelland, 233 A.3d 717, 733 (Pa. 2020) (analyzing what was “nominally
a plurality decision” to conclude that a majority of the court reached the same
holding). In Howard, a majority of the Justices held that the offense of
endangering the welfare of children requires proof that the defendant was
aware that (1) he or she violated a legal duty and that (2) his or her actions
would place a child in a dangerous situation. Howard, 257 A.3d at 1227
(OAJC), 1231–32 (Dougherty, J., concurring) (“[T]he record must support that
the mother in this case was, at a minimum, aware of the creation of a situation
dangerous to the child’s welfare, and aware she violated a duty of care.”),
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see 1239 (Wecht, J., concurring) (“Section 4304(a)(1) requires proof that the
accused knowingly violated a legal duty and that, in doing so, the accused
created a situation that she knew presented an actual and significant risk of
harm to the child.”).
Further, a majority of Justices retained the “common sense of the
community” standard in determining what conduct the statute covers. Id. at
1228 & n.16 (OAJC), 1232 (Dougherty, J., concurring) (accepting that this
standard “may at times appropriately provide context to application of the
EWOC statute”); id. at 1239–40 (Mundy, J., dissenting). Contra id. at 1233–
37 (Wecht, J., concurring); see id. at 1231 (Saylor, J., concurring) (avoiding
the community-standards approach in applying the rule of lenity).
With these holdings in mind, we turn to Stephenson’s case. Viewed in
a light most favorable to the Commonwealth, the evidence established that
Stephenson cared for his 13-month-old child in a house that was dirty enough
that it was condemned as being unfit for human habitation. The jury was free
to reject Stephenson’s claims that he was only there briefly and that the baby’s
room upstairs was clean, especially in light of Stephenson providing that
address on his state identification card and to post bail. Although the house
was not in as atrocious a condition as in Wallace, the record supports a
finding that Stephenson knew he owed a duty of care to his 13-month-old
child and he was aware that the dirty house and close proximity of the gun
endangered the child’s welfare. Wallace, 817 A.2d at 492. Furthermore,
Stephenson placed the child on the couch in a room with drugs, a few feet
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away from a loaded firearm. The jury could infer that a curious child more
than a year old would be able to move to these dangerous items. It is
reasonable to infer that Stephenson was aware of these risks to the child and
that his caring for the child in this space violated his duty of care as a parent.
Therefore, the evidence was sufficient to support Stephenson’s conviction for
endangering the welfare of a child.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 06/02/2023
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