Commonwealth v. Howard, W., Aplt.
8 WAP 2020
| Pa. | Aug 25, 2021Background
- Appellant Waylynn Marie Howard was convicted under 18 Pa.C.S. § 4304(a)(1) for allegedly endangering her child by allowing the child to ride in a car‑for‑hire without a car seat. The Superior Court affirmed in part and reversed in part; this concurrence responds to the Supreme Court's Opinion Announcing the Judgment of the Court (OAJC).
- Justice Wecht concurs in the OAJC’s holdings that (1) the mens rea for § 4304(a)(1) requires awareness that the conduct is practically certain to create a dangerous situation, and (2) the evidence was insufficient to convict Howard solely for failing to secure the child in a car‑for‑hire.
- He rejects the OAJC’s reliance on the long‑standing judicial formula invoking the “common sense of the community” and the “sense of decency, propriety, and morality,” arguing such moralizing is improper for statutory interpretation in a code‑based criminal system.
- He explains that the Crimes Code abolished common‑law crime creation, so courts must identify criminal elements by statutory interpretation and the Statutory Construction Act, not community morality glosses.
- Justice Wecht concludes the Motor Vehicle Code provision (75 Pa.C.S. § 4581) creating a duty to restrain young children applies to vehicle operators, not a non‑driving passenger like Howard; and, in any event, failing to use a child restraint alone does not create the “actual and significant” likelihood of harm § 4304 requires.
- He cites persuasive MPC‑derived authority holding that “endanger” requires more than speculative risk — an actual and significant likelihood of harm — and finds the empirical risk from a typical car ride too low to sustain a § 4304 conviction on these facts.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Mens rea required under § 4304(a)(1) | Commonwealth: proof defendant knowingly endangered child by violating duty suffices. | Howard: prosecution must prove a high level of awareness of risk. | Court (Wecht): requires knowledge that conduct is practically certain to create a dangerous situation. |
| Use of "common sense of the community" in statutory interpretation | Commonwealth/OAJC: community‑sense standard helps define what conduct § 4304 proscribes. | Howard: statutory text and interpretive tools, not moralizing, should define offense. | Wecht: rejects community‑morality standard as improper; rely on statutory interpretation. |
| Whether Motor Vehicle Code § 4581 imposes a duty on a non‑driving parent | Commonwealth: failure to restrain child violates a legal duty under § 4581. | Howard: § 4581 duty is on the vehicle operator, not a passenger. | Wecht: § 4581 imposes duty on driver; no separate statutory duty on non‑driving parent. |
| Sufficiency of evidence that failing to use car seat endangered the child | Commonwealth: not using a car seat endangered the child’s welfare. | Howard: lone omission without evidence of likely harm is insufficient. | Wecht: lone failure to use restraint, without evidence of an actual and significant risk, is insufficient to convict under § 4304. |
Key Cases Cited
- Commonwealth v. Mack, 359 A.2d 770 (Pa. 1976) (earlier adoption of “common sense of the community” to avoid vagueness challenges under § 4304)
- Commonwealth v. Marlin, 305 A.2d 14 (Pa. 1973) (invoked community‑morality language in construing pre‑Crimes Code statute)
- Commonwealth v. Randall, 133 A.2d 276 (Pa. Super. 1957) (source of rhetorical ‘‘sense of decency, propriety, and morality’’ language)
- Commonwealth v. Booth, 766 A.2d 843 (Pa. 2001) (Crimes Code abolished common‑law crimes; courts must look to statutory text for criminal elements)
- Commonwealth v. Lynn, 114 A.3d 796 (Pa. 2015) (recent Pennsylvania decision applying community‑sense language under § 4304)
- In re N.K., 153 A.3d 198 (N.H. 2016) (persuasive MPC‑jurisdiction authority treating “endanger” as requiring an actual and significant risk)
- State v. Fisher, 631 P.2d 239 (Kan. 1981) (interpreting endangerment to require a reasonable probability or likelihood of harm)
- State ex rel. Juvenile Dept. v. Vanbuskirk, 122 P.3d 116 (Or. Ct. App. 2005) (evaluating endangerment under totality of circumstances and requiring reasonable likelihood of harm)