*1 114A.3d 796 Pennsylvania, Appellant COMMONWEALTH of
v. LYNN, Appellee. William Supreme Pennsylvania. Court of
Argued Nov. 2014. April Decided *3 Jr., Esq., F. McCann Edward Esq., Eisenberg, Ronald Jr., Burns, Office, J. Hugh Attorney’s District Philadelphia Pennsylva- of Williams, for Commonwealth Esq., R. Seth Esq., nia. Khaskelis, H. Esq., Allison Esq., Bergstrom, A.
Thomas P.C., Phila- Rooney, & Ingersoll Buchanan Esq., Tepper, Marc Lynn. for William delphia, TODD, BAER, EAKIN, C.J., SAYLOR,
CASTILLE, STEVENS, JJ.
OPINION BAER. Justice he endangered charges jury trial
Following was convicted children,1 Lynn (Appellee) William welfare of incarceration. years six three to to a term of and sentenced sentence, challenged he judgment from his appeal On conviction, contending sustain his sufficiency of the evidence found children was supervision no direct he had and re- agreed, Court Superior The endangered. to have we appeal, the Commonwealth’s conviction. On versed there is no statu- Court, concluding Superior reverse Rather, of children. supervision of direct tory requirement welfare. Under the child’s is supervised is that which trial, person supervising was a facts presented official because, high-ranking as a many children welfare responsi- specifically he was Philadelphia, the Archdiocese priests. abusive sexually from children protecting ble for *4 Charles Borromeo education at St. years of Following eight graduated Pennsylvania, Wynnewood, in Seminary earn went Philosophy, in degree Bachelor’s with a Administra- Education Divinity in degrees, two Master’s in the Catholic priest as a was ordained tion. ("A person 4304(a) (1995) guardian, or other parent, § 1. 18 Pa.C.S. age an years of commits of a child under supervising the welfare violating by the child knowingly endangers the welfare if he offense care, support.”). duty protection or May Church on 1976. He served as a for parish priest before the Dean of Men eight years becoming at St. Charles Borromeo in 1984. In Seminary January Appellee was appointed Associate Vicar for Office Vicar Administration in the Archdiocese of Philadelphia. As Associ- Vicar, ate one of Appellee’s responsibilities was to assist Monsignor Molloy by taking James notes when they met with the sexual abuse of a people regarding minor a member of and, the clergy, consequently, Appellee learned how to inter- view sexual abuse victims and record their allegations against a priest. N.T. at 183-85. In June Cardinal 5/23/2012 Anthony Bevilacqua appointed for Appellee Secretary Clergy for the Archdiocese of Philadelphia, where he served for twelve years, until June 2004. Secretary
As for Clergy, Appellee responsible for en- suring parishes were filled with enough priests, resolving disputes among priests, and handling clergy sexual abuse issues.2 N.T. at 74-75. Building upon experi- 5/23/2012 ence acquired assisting Monsignor Molloy, Appellee learned how to clergy handle victims of sex abuse and the minors, priests who sexually becoming “point abused man” in the into investigation allegations clergy such sexual abuse of minors within the Archdiocese of Philadelphia. N.T. 246; 173-202, at 219-20. this it regard, 5/7/2012 5/23/2012 was his role to collect and assess information concerning grand jury investigation, Appellee In a 2002 described his role as follows: you briefly your PROSECUTOR: Can tell us what are as the duties Secretary Clergy? Archbishop’s delegate priests APPELLEE: The Cardinal or the to the life, everything happens, personnel assign- all matters of their ments, personnel. Anypersonnel up priest, issues that come with the things. I handle those it, oversimplifying say PROSECUTOR: Without would it be fair to it’s essentially like a human resource— right APPELLEE: That’s way? PROSECUTOR: administrator in a Right APPELLEE: Okay. your position investigating PROSECUTOR: Does also include involving of sexual abuse members of the Archdiocese? does, yes; priests. APPELLEE: It (N.T.) Testimony
Notes of at 259. 4/3/2012 *5 Archdiocese, in the against priests of sexual abuse allegations in participate priests, with the accused allegations discuss recommen- and make allegations, how to address deciding allega- whom against the priests about to the Cardinal dations made. tions were “funnel” account, was the sole
Indeed, Appellee his own abuse, it and clergy sex instances concerning of information receiving only for not responsible was alone that was his office them, vital passing also for but exploring up victims young and their priests abusive information about at N.T. in the Archdiocese. of command the chain 5/23/2012 remove a only independently could he Although that he had abused admitted if that parish priest from a priest responsibility it was someone, Appellee’s at N.T. 5/23/2012 Cardinal, to the assignments about recommendations to make For exam- authority. making decision had the ultimate who place priest make recommendations could ple, Appellee by, for ministry a priest’s or restrict leave administrative with children. or instance, public contact with prohibiting children protecting characterized respect, Appellee In this that he explained job, of his part most important N.T. Archdiocese. “for” the children worked 5/24/2012 at 56. considered his Appellee priest, of an abusive learning
Upon N.T. of the victim. be the welfare first priority 5/24/2012 child that the (“I mean, course, I understood always (when the first.”); at 190-91 would come victim 5/23/2012 job impor- more “any if there asked prosecutor being kids who was the innocent one of protecting tant than Ac- negative). in the abused,” answered sexually was, at investigations purpose cording Appellee, offending priest whether to determine part, least the—and taken out of ministry and removed from “should be at 98. way.” N.T. taken out of his could be children 5/16/2012 Secretary the office first assumed When “problem about information he collected June Clergy received com- basis,” whenever on a “need-be priests” addition, his at 261. about them. N.T. plaints 5/7/2012 authorized him to be one of the few officialswithin position Archdiocese of with access to the Ar- Philadelphia “Secret *6 chives.” The Secret Archives were located on the 12th floor of of Clergy key; they Office and maintained under lock and contained information about of “any major kind infractions a have,” priest only would and which a “very, very limited number people of within the Archdiocese had access to or a to.” N.T. key at 213-14. The Archives were Secret 3/26/2012 largely in control Appellee’s Secretary Clergy, as and he routinely consulted them if to determine there was already information contained therein relevant to a about whom priest he had received complaints. after early receiving information about a particular Dux,
priest, Rev. who was then in active ministry, Appellee consulted the Secret Archives and discovered documentation this particular priest had in serious sexual engaged misconduct in the past. discovery Appellee This caused become concerned that there were other priests active asserted, service against allegations whom of abuse had been accordingly and him a prompted comprehensive to conduct review of the Secret Archives to check for incidents of child sexual abuse all among priests ministry in active within the Archdiocese of Philadelphia.
This review encompassed priests and resulted in a report by Appellee created on February entitled (referred “Report from the Clergy” Secretariat for hereafter “February as 1994 Report”). report This identified 35 priests active service with previous complaints of sexual abuse Appellee placed of minors. each of these 35 on priests one of three priests lists: three were identified as “pedo- philes;” Misconduct priests “Guilty Sexual with Mi- nors;” and 20 were included on a list entitled “Allegations of Sexual Misconduct with Minors with No Conclusive Evidence.” N.T. at 182-98. the 12 Regarding priests 5/16/2012 determined were guilty sexual misconduct with minors, he considered it job his “to do about something N.T. at 47. [them].” 5/16/2012 Appel- name first was the Edward V.
Reverend of sexual guilty to be he considered whom priests lee’s list familiar personally minors.3 with misconduct about attention Appellee’s had come Avery, who with Rev. Secretary for he first became earlier when a half year review comprehensive he performed before Clergy, into allegations investigated had Archives. Secret understanding conduct, memorialized Avery’s Rev. Ar- Avery’s Secret to Rev. notations these minor with same and action “alcoholism indicating file chives years ago.” than five more times,” occurred and “action three con- below, the information fully more discussed As will be that he file revealed Archives Avery’s Secret tained in R.F., minor, in his this relationship with trusting had built *7 religious outside -with attention church, R.F. groomed alcohol occasions, R.F. with context, and, supplied on several sexual conduct. inappropriate in engaged contained a file Archives Avery’s Rev. Secret Specifically, 31, 1992, prede- Appellee’s to R.F. on March by letter written re- Jagodzinski, Monsignor Secretary Clergy, as for cessor when in the 1970s Avery Rev. by his sexual abuse garding he wrote R.F. indicated an adolescent. R.F. was also may who boys” for “other adolescent of concern letter out R.F. at 38. Avery. N.T. abused Rev. have been 4/25/2012 to Rev. written previously he had of a letter copy attached formed had been the bond that he in which recounted Avery old, the sixth in years around was them when R.F. between Philip at St. pastor the assistant Avery Rev. grade, sexual Greenville, Rev. Avery’s and how East in Neri Parish had wreaked emotional occasions multiple him on of groping Monsi- Allegedly because age.4 a young him at upon havoc Avery’s history of abuse was knowledge of Rev. Appellee’s 3. Because endangering against Appellee for case of the Commonwealth’s the basis children, importance paramount are of these details of the welfare considering this case. when years, writing for put off the letter explained he had 4. R.F. further confronting N.T. his felt at abuse. fear he of the shame and because at 38-39. 4/25/2012 term, was in the he had gnor Jagodzinski process ending 31,1992 to March letter. responded R.F.’s position Secretary Once assumed the Clergy, letter, and, he reviewed R.F.’s met September with him to discuss the contained therein. R.F. further provided regarding Avery details how Rev. had victim- him young age. Specifically, ized at a when R.F. was an altar boy Avery he Rev. serve Mass at helped Philip St. Neri. He charismatic, described Rev. Avery very popular young people, youth and active with the in the parish. Outside church, Rev. R.F. his beer at Avery gave age first and took R.F. and other from the in boys parish to his home New Jersey, supplied where them with alcohol. There was a loft in Avery’s Rev. New home with several Jersey beds where the boys sleep, Avery join would and Rev. would in the boys loft to -wrestle with According Appellee’s them. notes of his R.F., encounters, during interview with two or three such Rev. Avery’s “slipped hand crotch.” N.T. [R.F.’s] 3/26/2012 R.F., Rev.
According Avery pattern continued this activities, him inviting seemingly innocuous participate and then him groping By when vulnerable. the time R.F. was Avery had been transferred from Philip St. Neri, but maintained contact with R.F. by telephone and him to parties invited where Rev. was the disc jockey; and, a particular Avery’s, notably, avocation of Rev. one that him into contact with men. brought multiple young Eventual- *8 ly R.F. to assist Rev. at began Avery parties. college At a where party helped Avery jockey, R.F. Rev. disc Rev. Avery alcohol, R.F. with in him supplied resulting becoming sick a later, bathroom, few hours in the and out in vomiting passing a hallway. Avery Rev. took R.F. back to the where rectory he resided, R.F. to in encouraged sleep Avery’s and Rev. bed. later, When R.F. awoke several hours Rev. Avery’s hands 1981, 18, were inside R.F.’s shorts. In when R.F. June Rev. him Avery trip Avery, invited on a ski to Vermont. Rev. (J.F.) R.F., and his brother a hotel night, shared room. bed, Avery joined Rev. R.F. in and molested him after again erect until it became penis his asleep, massaging he had fallen ejaculated. R.F. and had commit- Avery that Rev. Archives revealed
The Secret had gone after church officials R.F. against these offenses ted when Rev. Avery: Rev. way their to accommodate out of Mary Heart of Immaculate at pastor was assistant Avery had sug- church official Chester, a Pennsylvania, Church Avery be that Rev. to Cardinal in memorandum the gested (the another breakdown” Neri to “avoid Philip to St. appointed unknown), prompted which apparently which are details of accommodat- official for the church Avery’s gratitude Rev. N.T. speaking, predicament.” ing “euphemistically to St. utilizing his transfer Rather than at 3/26/2012 obli- priestly focus on his opportunity Neri as an Philip in the engaged instead however, Avery had Rev. gations, described of R.F. molestation sexual behavior grooming above. Appellee, of his sexual abuse the details revealing
After permit- be would not Avery that Rev. assurances sought R.F. that the assured R.F. harm else. anyone ted to victim, the victim’s is the of priorities Archdiocese’s “order N.T. Church, himself.” priest and the 3/26/2012 family, later on Avery Rev. a week met with 259-60. Rev. Although allegations. R.F.’s regarding October shock that expressed R.F.’s account initially denied Avery issue, confirmed Avery Rev. for this counseling R.F. was in that he took provided, including R.F. had many of the details roughhouse Jersey New and “would his house in kids to the ski with R.F. on ...,” he a bed and that shared boys R.F. in the if he Vermont, touched but stated trip at 10-11. “accidental.” N.T. it night, was 3/27/2012 college party after the the incident Regarding to remem- too much alcohol had consumed Avery claimed it could be admitted that but night, about any ber details intoxicated, and he did he was while something happened again spoke at 270. N.T. not remember. 3/26/2012 *9 Rev. retort that Avery’s R.F. “has a selective N.T. memory.” at 5. 3/27/2012
Following R.F.’s and Rev. Avery’s concession 16, 1992, the abuse could happened, have on October Appellee account, informed Bevilacqua Cardinal of R.F.’s stat- Avery denial,” ed that Rev. “expressed absolute and informed the Cardinal that R.F. did not legal mention action. On November informed R.F. Avery that Rev. had allegations. denied his Appellee recommended to Cardi- nal Bevilacqua Avery Rev. be sent to an Archdiocese- affiliated mental health treatment facility, St. John Vian- ney Center in Downingtown,5for a four-day outpatient evalua- 30,1992. tion beginning November The accepted recommendation, Cardinal and Rev. Avery went to Vianney. St. John As part the evaluation process for Rev. Avery, Appellee had to complete a referral form intended to detail the background of issues to Rev. important Avery’s details, assessment. Despite request this did not any include information Avery about Rev. touching shorts, R.F. while wrestling, placing his hands inside R.F.’s massaging Vermont, R.F.’s penis during trip to and did not mention that Avery Rev. conceded “it could be” that Rather, something happened. Appellee merely indicated there were allegations against Avery by Rev. an adult male about events that occurred when the man teenage years, and focused on the fact that had supplied alcohol to minors.
Even with such an incomplete picture Avery’s of Rev. background, the staff at Vianney St. John recommended inpa- tient hospitalization, a recommendation which Cardinal Bevi- Vianney facility 5. The St. John Center is a mental health treatment Archdiocese; operated by sat on the Board of Directors there, Moreover, request Bevilacqua. at the according of Cardinal to a Archdiocese, investigated clergy detective who sex abuse in the St. John Vianney routinely priests was where the Archdiocese sent who "had minors, problems dealing, basically, sexually abusing alcohol treatment programs, psychological problems. The center itself was owned and Archdiocese, operated by they priests prob- would send Op. lems to the center to be evaluated.” Tr. Ct. n.17. *10 long for admitted Avery Rev. was and accepted, lacqua again than three weeks 18,1993. Less February treatment on term a parishioner to 11, 1993, responded Appellee later, March made that had been calls “unfavorable” about who had written that affirmatively misrepresenting Rev. Avery regarding in this heard compliments but anything “never been there had at 38. N.T. Avery....” about Father office 3/27/2012 to John Vian- St. he was admitted months six after About Ph.D., Pellegrini, Wayne therapist, Avery’s primary ney, Rev. “ac- and was ashamed Avery that Rev. Appellee to reported hap- must have R.F.] incident [with that knowledged ” Pellegrini Dr. Additionally, 42. at .... N.T. pened 3/27/2012 about concerns [sic] “there remains Appellee informed Avery’s victims,” and, on Rev. based of other the existence treat- continued fully responsibility, his own accept failure acting further prevent “to strongly recommended ment out.” Id. Pellegrini’s Dr. received September
On from St. 1993 release Avery’s October for Rev. plan treatment diag- was not Avery that Rev. Vianney, provided which John only “there is two reasons: for a sexual disorder nosed with drinking “had been abuse,” Avery Rev. and report (cid:127)one 48. at Neverthe- N.T. incidents....” those 3/27/2012 during Avery Rev. continue less, recommended Pellegrini Dr. assignment where treatment an outpatient receive around children: not be would Avery] for [Rev. team’s recommendations treatment The treat- One, outpatient continued ... discharge include: post team, ministry super- Two, integration an aftercare ment. with a adolescents Three, ministry excluding vision. whom with [sic] vulnerable minorities other than population Four, attend- overidentify [sic]. tends to Avery] [Rev. meeting Anonymous] 12-step [Alcoholics ance at a priests. at
N.T. 3/27/2012 “it could admission Despite Avery’s his admission really alleged happened, what R.F. be” that Vianney the staff at John that his abuse of R.F. “must St. have Dr. concern the existence happened,” Pellegrini’s about victims, and the of the treatment other recommendation team at that Rev. be from Vianney Avery kept away St. John minors, Appellee’s Avery’s first recommendation for Rev. at post-discharge assignment pastor was as associate Our Lady Philadelphia, grade of Ransom with a school. parish recommendation, N.T. at 52. made this 3/27/2012 least in because Rev. had not been as a part, diagnosed pedophile. Appellee later admitted on cross-examination that the lack of a is a indicator of pedophilia diagnosis poor whether an individual will in acts of N.T. engage pedophilia. (acknowledging at 218-19 that “I’ve seen where a 5/23/2012 *11 is not as a person diagnosed pedophile yet engaged and has acts of pedophilia.”). Bevilacqua rejected
Cardinal recommendation for Appellee’s reasons, Avery’s placement Rev. for unknown in- suggesting stead that Avery placed Rev. be in a chaplaincy assignment. On November recommended an Appellee assignment for Rev. Avery Chaplain at Nazareth in Philadel- Hospital phia, which would have for Rev. on provided housing Avery however, site. Avery’s Pursuant to Rev. and request, despite Dr. him in Pellegrini’s warning against placing a that position minors, give would him access to Appellee petitioned permit Avery nearby rectory Cardinal to Rev. to live in a at Church, St. Jerome’s which a attached. The grade had school accepted Avery’s Cardinal this recommendation. Rev. place- 13,1993, ment was effective December less than three months before Rev. name his list of Appellee placed Avery’s atop Minors,” Guilty “Priests Misconduct with demon- Sexual his belief that R.F.’s were credible. De- strating his conclusion in spite regard, Appellee this never shared his belief that Rev. Avery guilty was of sexual misconduct with minors or Rev. while Avery’s anyone, housing admissions with him where he grade had access to school children. exception pastor, Joseph
With the of St. Jerome’s Father Graham, who Appellee notify any priests did not lived rectory about of Rev. any Avery’s past St. Jerome’s conduct. Avery Rev. Father informed Graham Although Appellee di- children, this explain he did not not to be around was he had Father Graham rective, informed and he also Accord- parish. in the offer Avery Rev. assistance asked and celebrating Mass parish assisted the Avery Rev. ingly, 5/29/2012, N.T. on occasion. children’s confessions helping assigned allegedly was Father Graham Although 107-08. he un- was he later testified that Avery, Rev. monitor help he and did plan, treatment aftercare Avery’s of Rev. aware supervisor. Avery’s Rev. consider himself from St. John discharge his following year In the first weekly, who a psychologist met with Avery Vianney, Rev. Avery’s Rev. occasions that at least two notified team, Appellee, was to include integration which aftercare care pro- Graham, outpatient and his priest, another Father organize slow to initially Vianney, viders from St. John In November thereafter. only sporadically and met Avery was that Rev. Graham from Father Appellee learned December In parties. and weddings jockeying disc again his aftercare Avery meeting during focus on his him team, instructed integration not be should stated recovery, chaplaincy and jockey. as disc working chaplain learned from another February had that Rev. Kerper, Father Hospital,
at Nazareth *12 commit- direction, accept to outside continued this disregarded at his work ments, for substitutes cover arranged had of his disc Saturdays because on 25 Hospital Nazareth dance at St. which was at a one of jockeying priorities, revealed testimony subsequent Appellee’s Parish. Jerome’s N.T. school dance. grade was a this knowledge his time, learned this Appellee at 122-23. Also around 5/29/2012 request, at his agreed, had Avery’s Rev. psychologist his sessions. frequency decrease from complaint received Appellee September In jockey, a disc Avery’s Rev. activities as about Father Kerper in one events booked three Avery had Rev. stating his shirking engagements, new soliciting weekend and was chaplaincy responsibilities hospital. within the N.T. 3/27/2012 at 75. brushed these Appellee concerns aside and instructed Father Kerper, who did not know that there were allegations of sexual misconduct Rev. against Avery, to take his concerns about Rev. Avery supervisor to his at Nazareth Hospital instead of the Secretary Clergy.
In September Appellee again ignored R.F.’s attempts to ensure that other children were safe from Rev. Avery, choosing not to when R.F. respond requested by email that the diocese vouch for the safety of its children. Nor was there in any indication the Secret Archives or elsewhere that Appel- concern, lee up followed on R.F.’s or that of the staff at St. John Vianney, inquiring as to whether Rev. Avery was culti- or, indeed, vating new exploiting victims from among children he came regular into contact with at St. Jerome’s parish, school, its grade or through many parties and dances where he served jockey. as disc
Despite Rev. Avery’s past transgressions, complaints that he was neglecting his work obligations, information that he was again instead focusing jockeying, disc an activity had in minors, utilized him in past put contact with when Rev. Avery requested career, assistance to advance his was willing help. August assist- ed in the preparation of a letter to the National Association of Chaplains Catholic which stated that Rev. Avery priest was “a in good standing” and “has given exemplary service these past years” four as Chaplain Nazareth Hospital. September
On Appellee wrote to Cardinal Bevilac- qua a letter requesting of recommendation for Rev. Avery to pursue a Doctorate of Ministry in from the Lu- Spirituality theran Theological Seminary Philadelphia.
permitted himself, to write the letter of recommendation did, the Cardinal’s which he delegate, describing Rev. Avery sincere, “very as a hard He is working priest. honest and trustworthy. He is a man who is in touch with spiritual life and this becomes evident his work and service.” N.T. at 85-86. Despite describing Avery as trust- 3/27/2012 worthy, he told Rev. that “in the future he should play
556 he than low-key “more that he should be and low-key,”
things 88-89. at recently.” Id. has been Appellee to warning Pellegrini’s Dr. with Consistent actions, for his accept responsibility Avery failed that Rev. out,” N.T. acting “further 3/27/2012 potential the indicating Rev. and 2, between meeting April at an (recorded in the impression with the left Avery his minimizing Archives) again Avery Rev. was that Secret During him.” against allegations “the treatment and need for he would be that Avery Rev. informed meeting, Appellee this diocese, that because him to another to recommend unable priest stating that of a form completion require would 90-91. him. Id. at against had no D.G., ten-year-old later, in the fall months Several Mass training to serve began grade, fifth boy approximately boy an altar he became When at St. Jerome’s. boy as an altar of St. priests with thereafter, served Mass shortly McBride, Engle- Graham, Father Father Father Jerome’s: nor his parents, nor Neither D.G. hardt, Avery. Rev. and had deter- either knew parish, in the anyone guilty Avery Rev. years four before nearly mined (R.F.) or his extensive minor awith sexual misconduct herein. as recounted history troubled 1999, Father January through December From around Mass, during after abusing D.G. sexually began Englehardt early as “sessions.” referred to Englehardt what Father after inside church D.G. Avery encountered Rev. aside, Avery pulled D.G. Rev. Friday afternoon. school aon with about his “sessions” he had heard boy informed begin going were that “ours and stated Englehardt, Father later, after D.G. week at 126-27. A N.T. soon.” 4/25/2012 stay D.G. to he asked Avery, with Rev. Mass served weekend everyone After begin. were about to their “sessions” because he made sacristy, where left, D.G. Avery Rev. took else telling at 131. While music. Id. “striptease” do a boy D.G.’s wants,” Avery fondled God is what boy “[t]his him, penetrat hands, oral sex on performed his penis 132-33. Rev. finger. Id. boy’s anus with ed the *14 perform ejaculated instructed D.G. to oral sex on him until he on the neck chest. Id. at 134-35. boy’s and About two weeks later, fashion, Avery again Rev. abused D.G. in a similar this licking Avery time also his anus. Rev. told D.G. that he did a job, him, good they seeing God loved and would be each other D.G., however, soon. Id. again successfully ways found avoid Rev. therefore to further Avery by and avoid abuse him. Nevertheless, effect of devastating: by this abuse was old, time he approximately years D.G. became with drawn and began using drugs, developed which into a heroin by addiction 17. Id. at 146.6 age 2002, following eruption of the child sex abuse Boston, scandal in the Archdiocese of the leaders of the Catholic Church met in Dallas and produced the Dallas Char- ter for the Protection of and Young People Children (Dallas United States Conference of Catholic Bishops Char- ter), which protocols established for the Catholic Church with to child regard Among sex abuse. other things, Charter required each diocese to establish an Archdiocesan Review (Review Board) Board to evaluate act upon allegations and clergy sex abuse and eliminated the possibility merely restricting a Tr. priest’s ministry. Op. Ct. at 18-19.7 Charter,
Shortly 20, 2002, following Dallas on June brother, J.F., R.F.’s called Appellee detailed how too old, was fondled by Avery years Rev. when he was 14 or 15 the late explained 1970s. He that Rev. had Avery driven van of several children to his house in Jersey New where he 30, 2009, Avery's reported January 6. Rev. abuse of D.G. was not until years age longer Secretary when D.G. 21was was no Clergy. Although turning point the Dallas Charter marked a for the Catholic law, abuse, response clergy Church’s sex canonical Norms, specifically, always prohibited Number 8 of the Essential had such abuse as follows: single by priest When even a act of sexual abuse or deacon is appropriate process admitted or is established after an in accord with law, offending priest perma- canon or deacon will be removed nently ministry, excluding from ecclesiastical dismissal from the state, clerical if the case so warrants. N.T. at 115-16. 4/12/2012 Avery was that Rev. stated alcohol. J.F. them with supplied ... like he was me felt tickling .... each kid “jumping additionally at 96. J.F. me.” N.T. grab going 3/27/2012 in the been seen Avery had that Rev. informed parties. jockeying disc of 2002 recent weeks established 2003, procedure with the 2, in accord On June inves- Charter, “preliminary initiated a the Dallas Avery “on or against made Rev. the accusations into tigation” on or around resurfaced which September about September at 101. On N.T. June 2002.” 3/27/2012 in violation of Board found the Review *15 con- a minor and abuse of defining sexual Essential Norms ministry and from active that he should be removed cluded in he would which living situation any “or other rectory living, in the future.” now or to children access have unrestrained at 102-03. N.T. 3/27/2012 5, 2003, Rigali, Cardinal Justin Cardinal December
On Avery excluding Rev. successor,8 a decree signed Bevilacqua’s residence without ecclesiastical any ministry, living from Mass, administering or celebrating public permission, prior 20, 2005, Rigali requested Cardinal the sacraments. On June 20, 2006, Pope laicized,9 January and Rev. be obli- priestly from all dispensation him granted XVI Benedict Archdiocese 2009, contacted the D.G. January In gations. to criminal Avery, leading allegations against his make alia, described as further Appellee, against, inter charges below. Secretary for tenure as Appellee’s end of
Towards to investi- Attorney began District Philadelphia the Clergy, abuse. In sex clergy Philadelphia Archdiocese of the gate the request at 2002, empanelled was jury a grand treatment of Archdiocese’s Attorney investigate District jury grand May abuse. On of such replaced by he was Bevilacqua’s Upon retirement 8. Cardinal Bevilacqua died in Rigali. Cardinal Cardinal process which takes explained, is court laicization 9. As the trial authority. powers, rights, and cleric the priest or other use from a Op. 19-20. Tr. Ct.
559 subpoenaed documents from Appellee pertaining priests abuse, accused of sexual other Archdiocese officials were summoned to testify repeatedly.
grand jury report issued detailing the sexual abuse of minors in the Archdiocese of Philadelphia. In RE: County (2005) (here- Investigating Jury Grand September after, the 2005 Grand Jury Report). The report concluded that the statute that criminalized endangering welfare of a (EWOC), child (1995), § existed, Pa.C.S. as it at that time, was written in a manner that allowed church officials such as escape criminal liability. The version of the EWOC statute under consideration by the grand jury and under which Appellee ultimately charged provided as follows:
(A) OFFENSE A DEFINED: parent, guardian, or other person supervising welfare of a child years under 18 age commits an offense if he knowingly endangers the welfare of the care, child violating duty of protection or support.
(B) GRADING: An offense under this section constitutes a However, misdemeanor of the degree. first where there is a course of conduct of child, endangering welfare of a the offense constitutes a felony of the third degree. *16 (1995). §
18 Pa.C.S. 4304 Examining 4304(A), of language Section the grand jury concluded as follows: law,
As defined under the ... the offense of endangering the welfare is too narrow to support a successful prosecu- tion of the decision-makers who were the Archdio- running cese. The statute confines its to coverage parents, guard- ians, and other persons “supervising the welfare of a child.” officials, High however, level Archdiocesan were far re- moved from direct any contact with children. (Pa.Su-
See Commonwealth v. Lynn, 83 A.3d 445 n. 15 per.2013).
Based 4304(A), on its construction of Section the grand jury did not any recommend criminal charges, but instead recom- expand to language with statute amending
mended individuals conduct encompass to the provision reach of Dis- Philadelphia The capacity. supervising or an employer against charges bring not to decided Attorney’s Office trict recommenda- following this Appellee, According Appellee. Office, Attorney’s District Philadelphia tion, legislators, throughout in the law change a for advocated and others amended obliged, and legislature In Pennsylvania. 27,2007, to read: statute, January effective the EWOC the welfare supervising person other or guardian, parent, A or employs who person or a age, years under 18 of a child knowing- if offense he commits an person, such supervises duty by violating of a child the welfare ly endangers care, support. or protection added). (2007) 4304(a)(1) (emphasis § 18 Pa.C.S. failure recommend jury’s grand
Notwithstanding Attorney’s District Philadelphia prior and the charges criminal the belief that based on prosecute not to decision officials of church reach the conduct statute could not EWOC course, changed the Commonwealth capacity, ain supervisory EWOC two counts of with charged Appellee and in because statute 1995 version to the pursuant alleged was which of conduct course criminal Secre- while from 1992-2004 occurred engaged have charged addition, the Commonwealth tary Clergy.10 EWOC, 18 to commit conspiracy two counts Avery and of Rev. 903,11 supervision to his relating § Pa.C.S. therefore, noted, to EWOC references all otherwise 10. Unless 1995 version. 4304 will be to the Section Conspiracy as follows: is defined conspiracy with guilty of (a) person is conspiracy. Definition —A intent of if with the a crime persons to commit person or another he: facilitating commission its promoting or or persons they or one (1) person or agrees with such other crime or constitutes such engage in conduct which will more of them crime; or commit such attempt or solicitation an (2) planning or persons in the person or other agrees to aid such *17 to commit attempt or solicitation of an crime or of such commission crime. such 903(a). § Pa.C.S. 18 Rev. priest, Appellee initially going another Brennan. was to be tried with both Rev. and Rev. Brennan. together however, Avery, pled guilty involuntary Rev. to deviate sexual intercourse and to the welfare of children conspiring endanger 2012, 22, selected, on jury March after the had been but trial, therefore, trial The began.12 before continued with Appellee and Rev. Brennan.
Appellee sought quash charges of EWOC on the basis that he had “no connection whatsoever” to children whose welfare he was accused of Tr. having endangered. Op. Ct. denied, 180. this motion Once moved for ex- §§ relief in traordinary pursuant this Court Pa.C.S. the version arguing EWOC statute to him applicable did “not cover Archdiocese who managers directly supervise did not children.” Tr. at 180. Op. Ct. We Appellee’s petition denied February and Rev. Appellee’s jury Brennan’s trial commenced on March 2012. The sought prove Commonwealth had engaged in a of concealment pattern and facili- tation child sexual molestation abusive priests, conduct which led directly Avery’s to Rev. abuse of The D.G. Common- wealth introduced extensive Appellee’s evidence that handling Avery’s case was not an anomaly, but was accord with his established practice dealing sexually abusive priests. The evidence demonstrated that violated his duty prevent priests sexually from molesting children to protect reputations order their in furtherance of objec- tive to conceal the protect misconduct and to instead the reputation of the Archdiocese.
In addition to the conduct and abuse committed by Rev. Avery, the Commonwealth to introduce “other sought acts 404(b)(2) evidence” pursuant to Rule of the Rules of Evi- dence,13 intent, that to arguing Appellee’s understand knowl- 3123(a) 903(c), §§ respectively. 12. See 18 Pa.C.S. 404(b) part provides
13. Rule in relevant as follows: (1) crime, wrong, Prohibited Uses. Evidence of a or other act is not prove person’s admissible to character in order to show that on a *18 handling mistake when motivation, of and absence edge, how he to hear jury for the case, necessary it was Avery’s allega- abuse involving sexual other cases handled personally from acquired he knowledge and the priests against tions specifical- The Commonwealth Archives. reviewing Secret the revealed files of other priests in the that evidence ly alleged capacity in supervisory to act his failed routinely Appellee of reports faced with children when welfare of to the protect with immorally acting molesting, raping, who priests were where to facilities transfers children, made repeatedly these arose, trouble children when abusing could continue clergy ministry in the continue to abusing priests and permitted of ignorant enforcement and law keeping parents while Tr. at 21. Op. Ct. peril. evidence present to sought the Commonwealth
Specifically, by 27 abusive behavior knowledge of concerning Appellee’s this to and his reaction Avery to Rev. in priests addition the Commonwealth The trial court knowledge. permitted Rule priests pursuant to 20 pertaining evidence introduce evidence 404(b)(2), agreeing Commonwealth Appellee whether evaluating in jury assist would had abused by priests who danger presented aware disregarded knowingly whether past; in the children and other un- D.G. risk; knowingly put Appellee whether in jeopardy; had access to whom Rev. named minors sexually abusive to permit whether intended supervision. without the Archdiocese within operate priests acts bad prior recounted thoroughly has The trial court discussion, follows is what For in ease opinion. evidence its pertaining acts evidence bad prior description a brief as managed, whom priests abusive several of the evidence, which acts bad prior the cumulative demonstrative of charac- with the person acted in accordance particular occasion ter. (2) may for another be admissible This evidence Uses. Permitted intent, motive, preparation, opportunity, proving purpose, such as mistake, of accident. or lack knowledge, identity, absence of plan, probative value only if the evidence admissible case this is a criminal prejudice. outweighs potential for unfair its of the evidence 404(b). Pa.R.E. is relevant to our legal analysis Appellee’s role as a supervi- sor of the welfare of children in capacity Secretary and our Clergy, application of the law to the facts presented at trial.
In particular, the Commonwealth introduced evidence that on July while Appellee served as Associate Vicar the Office of the Vicar for Administration assisting Monsignor abuse, Molloy looking into of sexual *19 learned that county two detectives were investigating Father Michael Bolesta concerning allegations made the parents several that teenage boys Father Bolesta had inappropriately boys touched the on several occasions. The pastor of the church where Father Bolesta parochial was a vicar informed the detectives that he questioned had one of boys, the who stated that Father Bolesta had him inappropriately touched and invited the child to go swimming naked. Additionally, about seven previously, months parents boy another complained to the pastor of similar conduct. The pastor sought Archdiocese, direction from the and Appellee’s prede- cessor noted in the Secret Archives file that because charges filed, had not been the parents boys of these would likely drop the matter if the Church acted on it. 20, 1991, July Appellee
On and Monsignor Molloy inter- viewed one of Father only Bolesta’s victims and learned not the priest’s inappropriate conduct and touching, but also the names of nine possible other victims. Appellee assisted Monsignor the families of interviewing boys, these and learned that Father Bolesta repeated operan- same modus ds inappropriate touching, naked with the swimming boys, groping, and showering together. During interviews with the families, victims and their Appellee repeatedly only faced not Bolesta, the rage, anger, disgust directed at Father but the concern that the abusing priest should never be around again. children August met with Father Bolesta on however, and he allegations. denied the Appellee, emotions, shielded Father Bolesta from the families’ instead him indicating only that the families and the victims were he work good appreciated priest concerned done.14 had details, and consistent accusations numerous
Despite that suggested denials and Father Bolesta’s accepted stated that “[Appellee] fatigued: been just have may he committed, perhaps no action there was though even perhaps because of especially has to be examined behavior experiencing.” Bolesta said was Father and tiredness stress asked Monsignor and the at 134-37.15 N.T. 4/18/2012 that his and stated counseling to receive Bolesta Father had other Bolesta that Father be told would parishioners busy at such serving him from prevented commitments parish.16 he was parish, from his removal Father Bolesta’s
Following disorder, sexual unspecified an diagnosed with evaluated and enjoined that he be team recommended and his treatment and be reevaluated minors contact with from one-on-one later, repeated his counselor months later. year Several his reevaluation Following not be around minors.17 he should he had not stated team the treatment in October for; however, because they hoped had the improvement shown *20 Kostelnick, from Albert priest, Father T. another Appellee 14. shielded priest that by failing entirely to inform abuse allegations sexual of Following him. alleged they been fondled girls had young several parish to a Kostelnick Father allegations, Archdiocese transferred grade with a school. suggested explanations for Appellee only time This was not 15. occasion, forward when a came man On another sexual misconduct. Thomas J. Smith with Father inappropriate contact with accusations old, priest that proposed to the accused years Appellee when he was from the that differed in a manner occurred perhaps the incident recollection, boy had misconstrued 12-year-old and that the accuser's Shea, F. admitted priest, Father Thomas When another what occurred. priest to the boy, Appellee suggested abusing sexually an adolescent him. boy had seduced perhaps Wisniewski, stood priest, Father Thomas Similarly, when another 16. inpa- reported for 15-year-old boy and sexually abusing a accused treatment, parish- to tell his Appellee instructed him mental tient health going vacation. on ioners he was recommendation, Bevilacqua ap- Notwithstanding Cardinal this 17. Agatha-St. James in pastor St. at as an pointed Bolesta associate Father 15, 1992. ministry, June effective restriction Philadelphia no cooperation they of his with the treatment saw no need plan for continued on his ministry. restrictions the families who had raised Fa- allegations against
When Bolesta reassignment, they expressed ther learned of his deep O’Brien, anger resentment and to Rev. Thomas whom the meeting Church had tasked with with them. Although O’Brien assured the families that the Archdiocese did not intend to cover Father Bolesta’s conduct up by reassigning him, conveyed that the should be more Appellee Church when reassigning priests against discreet whom made, sexual abuse had been because it was the Church’s of the publishing reassignment prompted resurfacing concern, of the families’ anger suggestion for which thanked him. Appellee November Appellee
On to a responded parishioner who was reassignment concerned that Father Bolesta’s due to allegations of sexual abuse at his prior position by stating parishioner possession was “not facts and information.”18 In the proper February Father Report, Bolesta was the first name included under the heading “Allegations Sexual Misconduct with Minors with No Evidence.” Conclusive Appellee routinely misled individuals who were concerned about instance, priests allegations against with sexual abuse For them. May colleagues disturbing of Father David Sicoli C. witnessed behavior and voiced their concern to about Father Sicoli developing consuming relationship young teenage odd with a Sicoli, boy. Despite allegations dating back to 1977 about Father Appellee responded colleagues to his concerned that Father Sicoli had thereafter, problems Shortly "no other N.T. before.” at 214. 5/1/2012 pastors protest against two met with Father Sicoli’s contin- threatening resign Appel- ued behavior and if he was not removed. complaining pastors, lee recommended the of one of the transfer N.T. voluntarily parish, and the other left N.T. 4/26/2012 at 219. 5/1/2012 Brennan, through *21 As to Father Robert who had been treatment at St. Vianney parish following allegations
John and to transferred another of misconduct, Appellee colleagues sexual informed concerned that Father issues,” "boundary Brennan’s treatment and transfer were because of allegations and that there were no of sexual misconduct. N.T. at 71. 5/14/2012 Nich- Father regarding acts the other evidence Turning to in his alleged incidents Cudemo, several there were olas as Secre- appointment prior Appellee’s file Archives Secret had Cudemo that Father a 1966 Clergy: allegation for tary with a relationship abusive sexually three-year in a been that pastor an assistant by allegation a 1969 teenage girl; hysterical girl calm a trying been seen had Father Cudemo him; that she loved school, shouted loudly who in the high Father reported pastor the same later about month his room and woman into young taken a different had Cudemo graduate door; high a recent school closed sexually in a friend had been involved her best revealed that years and for a couple the Father relationship with abusive pregnant. have become may three other met with September
On by of sexual abuse details women, provided of whom each they when began the abuse Two stated that Father Cudemo. age it around old, indicated started and another years were were other if asked there one of the women ten. When there had abuse, stated that Molloy Monsignor several months nature, in fact although been nothing had woman meeting, another September before Father Cude- that she and Archdiocese to state contacted the 15 years, relationship sexually in a abusive mo had been old. years she was 16 when beginning accu- these Father Cudemo with confronted When and disclaiming responsibility sations, reacted initially he him. N.T. get” were “out to that individuals stating 5/3/2012 however, details, Father specific about asked at 98-99. When accurate. they were “possibly” conceded Cudemo with similar came forward another yet woman October victims wrote and, several in November allegations, to remove the Church’s failure to characterize Archdiocese threatened negligent” and as “immoral and Father Cudemo receiving a week Id. at 144-45. Within bring lawsuit. Father Molloy met letter, Monsignor Father the parish. from him to withdraw to ask Cudemo treatment. When resisted, similarly resisted Cudemo *22 was directed to be hospitalized treatment, for evaluation and he 1994, refused. From February through December Appellee repeatedly Father instructed Cudemo to comply, to 1994, no avail. In February Appellee placed Father Cudemo’s name on the list of “Diagnosed Pedophile” priests, permit- but him ted to continue to in operate active ministry. 1996, May
In Father Cudemo resigned pastor at St. Callistus in Parish Philadelphia, and his clinical psychologist, who was part treatment, of the Archdiocese ordered wrote Appellee to provide opinion that Father Cudemo is not a pedophile and was not a danger anyone. Cardinal Bevilac- qua permitted Father Cudemo to retire as a in priest good standing. his inclusion on Notwithstanding a list of pedophile 1997, priests, February Appellee encouraged Father Cude- mo to as a participate priest retired in the Archdiocese of Philadelphia. 2001,
In January a Philadelphia Police Officer called Appel- lee concerning allegations made against Father Cudemo aby former student at St. Irenaeus School in Philadelphia, who alleged sexual abuse while she was in the fifth sev- through enth grades. The police officer requested any information Appellee had allegations about arising from Father Cudemo’s time at St. Irenaeus. Instead of informing the officer of the extensive of sexual abuse made by multiple other above, girls as recounted or that he considered Father Cude- mo to be a pedophile, Appellee stated that there were none.
The Commonwealth also introduced other acts evidence in 1991, relation to Father Stanley In Appellee began Gana. investigating allegations R.K., of sexual boy, abuse of a minor Gana, by Father which was to have alleged occurred over a week, period years, several three to four times beginning 13, when R.K. was and eventually involving anal penetration. R.K. informed Appellee April of 1992 of two other who boys had similar experiences with Father Gana. May On accusations; met with Father Gana concerning R.K.’s them, Father Gana denied explaining perhaps R.K. mis- understood signs of affection. Bevilacqua accepted Cardinal Father explanations, Gana’s determining investigation into February On to be inconclusive. accusations
R.K’s priests his list of name on Father Gana’s placed no “with with minors had sexual misconduct alleged have at 185. N.T. conclusive evidence.” 5/16/2012 identified M.B., the victims one of early September and told the Archdiocese contacted Appellee, R.K. to when him beginning abused had Father Gana *23 school beyond high continuing in 1978 and old years was or sex once involved anal He stated abuse graduation. school, and that in high he was a freshman a when twice week Father Gana with whom boys of a “rotation” of part he was he desired Appellee told and had sex. M.B. a shared bed Father Gana identifying advertisement full-page out to take a forward; come victims to other inviting and a pedophile infringe on as it would possible, him that was told Appellee rights. Father Gana’s allegations with M.B.’s Father Gana
Appellee confronted denied all Gana and Father September a bed however, shared did, admit he He wrongdoing. to do so. their choice that it boys, but with for a Vianney to St. John report Gana Father suggested diagnoses, in several evaluation, resulted which psychological The staff specified. otherwise a disorder not including sexual and further treatment Vianney recommended at St. John “inappropri- at risk for further Gana be considered Father at 23-24. Father N.T. behavior.” ate and dangerous 4/3/2012 health for purportedly assignment, from his resigned Gana later, helped reasons, a week than less a for him at Church-affiliated treatment inpatient arrange Southdown, in Ontario. facility, treatment at clinical South- services the director February In about Markham, Father Gana confronted down, Donna Sister were all him, they he admitted against the accusations multi- raped were he though the accusations true. Even declined Markham age Sister boys under ple that he was rather stating pedophilia, with diagnose him alcohol. drugs or influence acted under the who person stay, inpatient week into his four-to-six than month Less Father checked himself out of Gana Southdown and moved to later, Less than ten days Lucy Florida. Sister Vasquez, Orlando, Florida, of the Diocese of spoke Chancellor to Rev. McCulken, Michael T. Assistant Director in the Office Clergy the Archdiocese of Philadelphia, report that some parishioners of her had concern expressed might “about what Orlando, be happening house” in where a [Father Gana’s] number of from were young people staying. Slovakia N.T. at 44. 4/3/2012 early June M.B. followed up Appellee, with ques- the lack of
tioning communication. Markham Although Sister had told that Father Gana had admitted the truth of accusations, Appellee informed M.B. that Father Gana deny continued to them but had to a agreed psychological By evaluation. the time Appellee informed M.B. that Father evaluation, agreed Gana to the already had quit inpa- tient treatment and moved to Orlando.
Appellee wrote to Father shortly speaking Gana after treatment, M.B. and concern that expressed quit he had *24 which, he later to a explained grand jury, was out of concern for future possible victims of abuse. In September and Octo- 1996, ber Father Gana in expressed interest treat- completing ment returning ministry, and to active which Appellee said was because of the possible diagnosis lack of a of pedophilia. However, he warned Father of the danger Gana that M.B. would take his accusations to the Father re- press. Gana turned for treatment at and Southdown admitted to having sexual contact with eight 1980s, individuals in the 1970s and adolescents, three of whom were including R.K. and M.B. staff Appellee Southdown informed that Father Gana claimed to have been chaste for ten years; Appellee recommended to Bevilacqua Cardinal that Father be to permitted Gana return to a limited form of to him ministry keep from the public eye, him specifically recommending as a to the Carmelite chaplain Ministry Philadelphia. in The approved Appellee’s Cardinal recommendation. Two Mother were Superiors informed Fa- them; not, however, ther Gana would be were joining they informed that he had been accused of sexually abusing minors. of a Gana later, informed Father years
Five priests longer permit would no policy in change Church minors, a declaration even absent abused sexually who had was Gana ministry. in limited Father to operate pedophilia, February 2002. his effective assignment relieved of Archives in the Secret our information Finally, purposes, for pled he had indicated that Father Edward DePaoli regarding in the child receiving pornography to court in federal guilty offense, this on year probation one serving mail. While Vianney for an St. John he was admitted June with an treatment, he diagnosed and where evaluation Philadelphia The Archdiocese disorder. unspecified sexual Jersey New transfer to a for Father DePaoli arranged until nearly years, three diocese, he served for where return to Philadel- ready to that he was reported psychologist July in ministry Philadelphia active He resumed phia. in Baptist Church St. John pastor an at associate Baptist, of St. John May pastor In Philadelphia. mail rectory in the material found Feeny, pornographic Rev. this Feeny reported DePaoli. Father addressed to Archdiocese, in- further in the Jagodzinski Monsignor Father which behavior in him of other inappropriate formed incident, through he fourth had engaged. DePaoli had one a story and act out in cutouts” “paper dress sixth grade girls sexy pretend them to act each of which instructed having were when children in another incident enticing; be eighth one of the like to see Mass, that he would he stated N.T. girls naked. grade 4/10/2012 DePaoli to assist 7,1992, with Father met July On At future. Father DePaoli’s deciding Bevilacqua Cardinal other individu- blame on placed Father DePaoli meeting, this for his own conduct. responsibility no als and took *25 leave of on a placed DePaoli be that Father recommended that he would be informed ministry, restricted absence with of Philadel- in the Archdiocese assignment not receive another The voluntary seek laicization. encouraged and be phia, February In these recommendations. approved Cardinal requested permission 1995, however, Father DePaoli when celebrate his 25th anniversary (the entering the priesthood Jubilee”), “Silver Appellee granted permission provided letter stating that Father DePaoli was a priest good stand- ing. 12, 1995,
On September Cardinal Bevilacqua approved a recommendation made by Appellee for Father DePaoli’s resi- dential at assignment St. Gabriel Rectory Montgomery County, which Appellee had chosen because it not have did grade school. While Father DePaoli resided at St. Gabriel Rectory, Sister Scary, Joan of Religious Director Education at Gabriel’s, St. complained on several occasions to the Vicar for Montgomery County, who passed the information along to the Archdiocese, Father DePaoli was not restricting his min- istry as and was directed instead repeatedly celebrating public liturgies, and receiving was suspicious packages in the mail. spring the pastor of St. Gabriel’s Parish warned Sister Scary stop making reports Father regarding DePaoli or she “could pack bags” [her] and “get the hell out of here.” N.T. 32-33, ignored She 4/9/2012 this warning and repeated her Archdiocese, concerns to the for which she was immediately “fired” from assignment her May on 1996.19 July On Appellee summarized the circum- stances of Scary’s Sister removal as resulting making from unfounded DePaoli, accusations against Father although he acknowledged that Father DePaoli had received a magazine from a division of “Gentleman’s Quarterly,” which had some content,” “inappropriate improperly celebrating pub- lic Mass in violation of the restriction on his ministry. N.T. at 94. 4/10/2012
In June Appellee met with a woman who reported that Father DePaoli had fondled her breasts in 1969-70 when she years was 12 Ultimately, Charter, old. following Dallas Archdiocese Review Board that Father concluded DePaoli had to be permanently removed ministry from based on “credible abuse,” of sexual which included his convic- federal tion, possession while pornography probation, credible 19. The "firing" of a apparent ramifications nun's are not on the record. *26 1969-70, pos- recent in touching inappropriate of of his violations and overt magazines, inappropriate of
session ministry. restricted includ- testimony against Appellee, of months several
After evidence, the acts Common- bad prior the above-recounted ing time, 2012, and, the at that May case on rested its wealth acquittal of judgment for motion Appellee’s granted trial court See Rev. Brennan. conspiring with charge the of as to of 606(A)(1). judgment sought further Pa.R.Crim.P. well, the court which trial charge the for EWOC acquittal charged the trial court ended Trial June denied. EWOC culpable whether to consider jury the jury The accomplice.20 Avery’s or as Rev. a principal either as related as it EWOC respect of with guilty a verdict returned minors), which (as other unnamed to D.G. and to Rev. the felony because third-degree aas graded trial court the of the welfare endangering of a “course conduct found of jury 4304(b).21 Appel- jury acquitted The § 18 Pa.C.S. child[.]” liability accomplice as follows: provides Code Crimes The 20. if it is committed (a) person guilty of an offense is General rule.—A which he person for by another or the conduct of by own conduct accountable, legally or both. is legally accountable for (b) person is of another.—A Conduct person when: another conduct for the is sufficient (1) culpability that acting with kind of offense, irresponsible innocent or he causes an commission conduct; engage in such person by person of such other (2) for the conduct made he is accountable offense; defining or by title or law this (3) person in the commission of such other accomplice he is an offense. per- accomplice of (c) person another Accomplice is an defined.—A an offense if: commission of son facilitating the commission (1) promoting or the intent of offense, he: it; (1) person or to commit solicits such other person planning (ii) attempts aid other agrees such aids or or it; committing or or his com- (2) expressly law to establish declared his conduct is plicity. 306(a)-(c). § 18 Pa.C.S. Appellee guilty of jury known considered It is not whether Avery. accomplice Rev. principal as an as a or EWOC lee of EWOC as it related to Rev. Brennan and of conspiring with Rev. trial Avery.22 The court sentenced to a term of three to years imprisonment. six
In Appellee’s statement of errors of on complained appeal, *27 see Pa.R.A.P. 1925(b), asserted, he among other that things, the evidence was insufficient as a matter of law because he supervisory had no role over or the D.G. other children of St. 1925(a) Jerome’s. The trial court responded its Rule that the opinion statute did not that an individual require be a a supervisor of child to fall under the EWOC statute’s reach. Rather, person the had to be a of supervisor the welfare of a child. The trial court held that the Commonwealth met its burden of this element of the proving by offense showing oversaw, or managed, authority had over the well- being children; of specifically, by proving that con- sexually trolled abusive it priests, and that was his responsibil- ity protect the children of the Archdiocese Philadelphia from future harm at the sexually hands of these abusive priests.
Appealing judgment Court, of sentence to the Superior issues, Appellee raised ten two of which challenged the suffi- ciency of the evidence to sustain his conviction for The EWOC. actor, first concerned his culpability as a principal and the second his as an culpability accomplice. The basis of Appel- lee’s argument as to was that he principal liability was not within scope subject the of individuals the EWOC statute Rather, because he did not directly supervise children. ac- cording Appellee, supervised Rev. Avery, who was supervising the children. In support argument, Appel- of his lee relied on the 2007 amendment to the EWOC statute as a (1995) compelling indication that the relevant version of the statute did not encompass individuals described the amend- ie., language, ed those who employ supervise or the class of individuals who were within the the purview pre-amended version. jury charges against
22. The
failed to reach a verdict on the
Brennan.
the Commonwealth’s
it was
argument,
this
Responding
statute
the 1995 EWOC
meaning of
the plain
position
by the 2007
added
persons
class of
the
clearly encompassed
clarified, rather than
merely
amendment,
the amendment
plain
Examining
liability.
scope of
the statute’s
changed,
phrase
“the
argued
the Commonwealth
language,
inter-
by Appellee’s
superfluous
be rendered
welfare of’ would
endorsed the
the Commonwealth
respect,
this
pretation.
of children
supervision
actual
between
trial court’s distinction
as the basis for
of children
welfare
supervision
principal.
as a
liability for EWOC
Appellee’s
sufficient to
the evidence was
whether
first
Considering
principal,
for EWOC
conviction
Appellee’s
sustain
statutory language
examined
Superior Court
was
that because Appellee
and concluded
statute
EWOC
scope
or
in this case
issue
guardian,
or
parent
the welfare
person supervising
“or
other
phrase
breadth
*28
acknowledged
Superior Court
Although the
of a child[.]”
was
statute
intended
that the EWOC
this Court
direction from
safeguard
the
in order
range of
“to cover a broad
conduct
children,”
The Commonwealth had argued against the applicability Halye, that the asserting Superior Court in that case simply applied the law to the facts presented and overturned the conviction because defendant was not supervising the children or their welfare in any respect, just being a visitor in house, in contrast to Appellee, whose responsibility was to protect the welfare of the children of the Archdiocese from sexually priests. abusive
The Superior Court disagreed with the Commonwealth
about the persuasive authority
Halye
for several reasons.
First, it interpreted that case as requiring
supervision
actual
of children as an element of
Lynn,
EWOC.
Because the trial court did not consider Halye, the Superior Court its statutory considered construction to faulty, be and was further not by convinced the trial court’s “parsing of the 23. The Halye in involuntary defendant was also convicted of deviate intercourse, assault, sexual corruption indecent and of minors. ” none where ambiguity it “adds of because ‘the welfare
terms to liability criminal Id. at 453. For EWOC exist.” need a Court, who is not a person attach, Superior to the according engaged be child must endangered guardian or a parent aof supervision, for the responsible or be the supervision, most found Court Superior Id. respect, this the child. any direct had Appellee that lack of evidence significant by Rev. at risk put child any or other over D.G. supervision the evidence Jerome’s, held that and at St. Avery’s presence conviction Appellee’s support sufficient to not was therefore at 447. Lynn, 83 A.3d actor. principal as a for EWOC could that concluded Court Although Superior EWOC, that recognized it for as a principal not be convicted have jury could which avenue independent an there was Appel- consider charged it had been because him convicted The Avery’s accomplice. Rev. as for EWOC culpability lee’s liability however, accomplice concluded, Appellee’s court acted evidence that by sufficient supported was not of the commission or facilitate to promote intent or know D.G. did not Avery, because by Rev. EWOC Avery’s Rev. him, sufficiently aware of was not of know Jerome’s, child St. any him or other of supervision was to or intended information specific had no child. any or other D.G. to molest preparing the evi determined Court Accordingly, Superior conviction the EWOC support sufficient dence not judgment reversed the accomplice, or an a principal either petition the Commonwealth’s granted We of sentence. two issues: address appeal allowance endangering prove (1) evidence insufficient theWas have direct did children because defendant welfare children? contact with endanger could not
(2) defendant Assuming arguendo a but as part capacity, in his individual welfare of children under his predator sexual known placed scheme general sexual risk further promoted position control
577 assaults, evidence sufficient to convict him as an accomplice? (2014). 346, Lynn,
Commonwealth v.
625 Pa.
Moreover, in this endeavor we are guided by the well settled principles statutory of construction. The purpose of statutory construction is to ascertain and effectuate the intent 1921(a). § of the 1 legislature. Pa.C.S. In this respect, intent; language statute is the best indication of this accordingly, where the words of the statute are clear and free ambiguity, from all the letter is to be under disregarded Id., 1921(b). pretext pursuing spirit. § its in the Only event of an ambiguity may we consider other aspects statute and the statutory process, may we discern the alia, General Assembly’s intent inter considering, Id., Act, various factors listed in the Statutory Construction 1921(c). Walls, § 557, See v. Commonwealth 592 Pa. 926 A.2d (2007). 957, 962
Generally under the rule speaking, lenity, penal construed, statutes are to be strictly resolved ambiguities Lassiter, in favor of the accused. Commonwealth v. Pa. (1998). 722 A.2d In the peculiar context of EWOC, however, we have held that the statute is protective nature, and must be construed to effectuate its broad purpose Mack, sheltering children from harm. 359 A.2d Specifically, juvenile defensive; of such purpose statutes is they are written expansively by legislature “to cover a the welfare safeguard of conduct order range
broad (quoting Id. at 772 Commonwealth children.” of our security (1973)). context 14, 18 In the Marlin, 305 A.2d 452 Pa. v. *31 therefore, have sanctioned we juvenile legislation, of protective of type every undesirable that, itemizing rather than statutes tending or conduct, producing the “conduct instead criminalize Marlin, at [cjertain 305 A.2d ...” result a defined to produce observed: accordingly 18. We have of as the sense as well community, the common sense of The people most morality which and the decency, propriety to each particular the statute to apply is sufficient entertain is rendered case, particular what conduct individuate and to it. by criminal 603, Randall, Pa.Super. 183 v. Commonwealth (quoting
Id. (1957)). 276, 280 133 A.2d being as statute to the EWOC challenge of a
In the face protective of the being cognizant unconstitutionally vague, criminal acts, the we held EWOC juvenile purpose such Mack, unconstitutionally imprecise. facially was not statute contained that the language considered A.2d at We 359 772. child” and welfare of the the therein, “endangers specifically, esoteric; rather, not care, are support,” or “duty protection con- and given understood easily are they that we discerned reasoned we Id. large. Accordingly, by community text the course particular contemplates who that “an individual intended whether his difficulty deciding little conduct will have violation of by his the child’ the welfare of ‘endangers act ” Id.24 care, or ‘duty protection support.’ mind, parties’ turn to the in we these principles With evidence whether the to the first issue: arguments direct did not have EWOC where prove to sufficient Mack, that holding on our Relying with children. contact by persuasiveness of Mack attempted Appellee has limit defendants, conduct, potential dealing with characterizing it as meaning person supervising light of "a shedding on no therefore Mack, however, legisla- is that the import of The welfare of a child.” give broadly effect to its the EWOC statute to draw ture intended applica- interpretation and guides our purpose, an intent protective herein. tion of statute
579 the EWOC statute is drawn necessarily broadly capture child, conduct that endangers welfare of a and Superior precedent Court explaining EWOC “involves the endan gering physical or moral welfare of a child an act or omission violation of a legal duty,” Commonwealth v. 1228, Taylor, (1984), 471 Pa.Super. A.2d Commonwealth focuses the intent element of the offense. crime, Because the crime of is a specific EWOC intent Com Cardwell, monwealth v. 357 Pa.Super. 515 A.2d (1986), and the intent required is the violation knowing of a care, id., duty of the Superior long Court has interpreted (1) intent element to that: require the accused is aware of (2) child; duty protect the accused is aware his/her the child is in circumstances that could threaten the (3) welfare; child’s or physical psychological the accused has either failed to act or has taken action so lame or meager *32 that such actions cannot reasonably expected be to protect Wallace, the 485, child’s welfare. Commonwealth v. 817 A.2d 490-91 (Pa.Super.2002); Commonwealth v. 744 A.2d Vining, (en 310, banc); 315 (Pa.Super.1999) Commonwealth v. Mar tir, 327, 712 A.2d 328-29 (Pa.Super.1998); Commonwealth v. Pahel, 159, 963, (1997); 456 Pa.Super. 689 A.2d 964 Com Fewell, 541, 1109, monwealth v. Pa.Super. 439 654 A.2d 1118 (1995) Miller, 33, Commonwealth v. 411 Pa.Super. 600 A.2d 988, (1992); 990 Commonwealth v. 398 Campbell, Pa.Super. 116, 868, (1990); Cardwell, 311, 580 A.2d 870 515 A.2d the
Applying presented evidence to the legal question of whether Appellee knowingly endangered welfare of a child care, by violating a of duty protection, or support, Com- monwealth that it argues clearly established that it was Appel- lee’s undisputed duty to children protect predator from sexual priests; he was aware that children were of sexual danger exposed abuse when to such priests; and he failed to take and, indeed, protective action actually exposed children to the danger being of sexually molested.
Addressing the class of to whom individuals the EWOC statute applies, argues Commonwealth that it has never case, been in until that dispute, this the offense involves 580 by an act of a welfare child or moral physical
endangering is, “person a duty; legal of a in violation or omission has a a who person means of a child” the welfare supervising child. a See “care, support” or to protection, duty provide 1230; Vining, (1995); 471 A.2d Taylor, § 4304 18 Pa.C.S. if he (“[0]ne of a child the welfare endangers at 315 A.2d 744 care, sup- or protection of duty a violates knowingly or she A.2d 540 Pa.Super. 373 Ogin, v. Commonwealth port.”); “is a (en banc) the statute (1988) (providing those who know- to penalize provision designed comprehensive of children well-being duty protect a legal breach ingly care.”). to the According Common- their are entrusted who aof through evidence be wealth, proven of care can duty A.3d Bryant, v. See Commonwealth role. supervisory has, on care duty that the (recognizing (Pa.Super.2012) exercise occasions, to those who been extended multiple children). over role supervisory Commonwealth, capacity in a one who acts to the According who inter- children, person another supervises protecting is person that this children, aware other and is those acts with or, children, nothing, does but to the welfare those a threat abuse, child which exacerbate case, takes in this actions as routinely is supervision statute. Because the EWOC violates others, argues the Commonwealth through accomplished of individuals the conduct cover enough is broad the statute children, such as school encounter may personally who elements as other managers, long day or care principals presented, the facts are Under statute met. the EWOC *33 the welfare endangered that argues Commonwealth duty undisputed D.G., breaching children, including to children danger to be a whom he knew prevent priests molesting sexually from supervision under his and who were the was words, them; his supervision in other children. the welfare of supervision opinion Superior the Court criticizes The Commonwealth “actual” or offense of to the non-statutory element adding nothing says that the statute noting supervision, child “direct” child that is welfare of a of the supervision that would exclude Moreover, actual sufficiently or direct. the Common- wealth observes that the text of the statute refers to a person child,” “the supervising welfare of a not a person supervising “a child.” to the
Turning Superior Court’s reliance on Halye, the argues Commonwealth that this reliance misplaced. Rather than holding that supervision as used the EWOC statute must be actual or direct of the supervision child or children, do, as the Superior Court the interpreted Halye Commonwealth views that case much more narrowly. Accord- Commonwealth, to the ing Halye says nothing about whether direct, must supervision be actual or and did not conclude that the defendant therein was too supervising indirectly to be Rather, guilty offense. argues Commonwealth court Halye found the defendant supervising was not all, children, children at no having duty whatsoever to the therefore could not guilty be violated having duty. The Commonwealth Halye considers to hold that the merely sexual molestation of a child does not that the prove assailant duty had a of care to that child. refuted
Having Superior Court’s statutory construction and reliance on Halye, the Commonwealth argues Superior Court’s decision in the instant case is left unsupport- Reviewing ed. against evidence that it intro- trial, duced at the Commonwealth concludes that it sufficed demonstrate that Appellee duty, had a as he readily conceded trial, to protect children from abusive priests under his control; he knew that children who encountered such priests assault; were in of sexual danger and he failed to take action to remove priests from the locations or roles which allowed them to abuse children freely, thereby exposing children to very it danger duty was his to prevent. Having proven offense, the statutory elements of the the Commonwealth urges this Court reverse the Superior Court and reinstate Appellee’s conviction.
Confronting legislative amendment of the EWOC stat- ute, effective in the Commonwealth makes several argu- First, ments. it argues pre-amended that the version is to be *34 582 therein contained language unambiguous on the
interpreted
interpretation.
to this
irrelevant
amendment is
that
the
of the law is
version
Second,
another
way which
only
the
finding of
the
upon
is
statutory interpretation
to
relevant
law,
to
former
limited
the
is then
and consideration
ambiguity,
1921(c) (pro-
§
1 Pa.C.S.
amendment. See
a subsequent
not
be
may
it
statutory ambiguity,
is
when there
viding that
law);
alia,
former
of,
the
inter
by consideration
resolved
840,
453,
843-44
734
Pa.
A.2d
Shaffer,
v.
557
Commonwealth
retro-
cannot
(1999)
amendment
subsequent
that a
(providing
provi-
pre-amendment
in the
legislative intent
actively define
extent
that
sion).
argues
to
Third, the Commonwealth
be
in the law to
change
this particular
considers
this Court
intent,
a clarifica-
but
change
not a
relevant, it represented
See, e.g.,
intent.
Com-
existing
and reinforcement
tion
(1992).
A.2d
531
613
Corporan,
v.
Pa.
monwealth
earlier
notwithstanding
that
*35
See,
to individuals who stand in the
place
parents.
e.g.,
Martir,
327,
Commonwealth v.
712 A.2d
330 (Pa.Super.1998)
(Beck, J., concurring) (noting that EWOC is contained in
Code,
Article D of the Crimes
Against
entitled “Offenses
Person”).
Family” as opposed to “Offenses Against the
this respect, Appellee asserts that appellate courts have only
applied
EWOC statute
parents
parental
or
surrogates.
See,
Kellam,
(Pa.Su
e.g.,
Commonwealth v.
719 A.2d
per.1998)
a
(affirming
conviction for
and stating
EWOC
that
the statute applies
babysitters
and others who have perma
nent
child);
or temporary custody and control of a
Common
Brown,
wealth v.
721 A.2d
n. 6 (Pa.Super.1998) (opining
that
that
“[p]roof
such adults were actually
a child
supervising
child.”).
requires evidence that the adult was involved with the
Additionally, Appellee
that
argues
every EWOC conviction
in reported cases has arisen out of the defendant’s involve-
ment with particular
child rather than a nonspecific class of
See,
possible
Smith,
victims.
e.g., Commonwealth v.
956 A.2d
(father
1029 (Pa.Super.2008)
convicted of
for abusing
EWOC
his own
control);
child over whom he had exclusive supervisory
(de-
Commonwealth v. Trippett,
Like the Superior Appellee finds Halye particularly persuasive. According to Appellee, by focusing on the fact that the defendant in Halye had neither been asked to super- so, vise the children nor expected to do the Superior Court therein indicated that actual supervision the child is essen- tial to liability. EWOC Because Appellee neither met D.G. him, he, nor knew of Appellee argues like the defendant in Halye, could person not be a supervising D.G.’s welfare.
Turning away from the Superior analysis Court’s and to the statute, 2007 amendment of the EWOC and to how it bears our interpretation pre-amendment language, Appellee prior decisions prosecutorial
relies on the Commonwealth’s fol- Specifically, Appellee. charges against bringing Attorney’s Office the District Report, Jury the Grand lowing officials level Archdiocesan high that report in a indicated The children. contact from direct removed were far not to Attorney’s decision the District Jury Report and Grand amendment legislative prompted at that time prosecute circumstances, the concurrence 2007. These effective indicate, amendment, for the who advocated legislators conduct that his consensus mind, there was Appellee’s sug- statute. EWOC the reach was outside change cannot now Office Attorney’s the District gests hold it could course, prior its decision and is bound In this supervisor. conduct as for his him accountable *36 2011 deci- that the Commonwealth’s argues respect, Appellee of the EWOC 1995 version him under charge sion to was 2007 that the statute argument its present statute belies version.25 prior merely a clarification of necessary was amendment the 2007 Appellee, to According persons a class of to the statute add the reach of expand or employs “a subject liability: person originally directly responsible who is an individual supervises” Bachman, 374 473 Pa. v. See Masland of a child. welfare of a statute (1977) (“[A] language in the change 521 A.2d intent.”). Appellee legislative change a ordinarily indicates would be amendment language new that the argues meaning pre- as if it has same superfluous rendered Dixon, A.3d v. 53 Commonwealth statute. See amended (“Where designated are things certain (Pa.Super.2012) 845-46 exclusions,” as be understood statute, should all omissions drafting than capable more Assembly [is] the “General as include].”). it wishes to include what statute to [the competing on the case above, this focuses because As noted analy- begin we will our interpretation, of statutory arguments would not in the law argues that a clarification Specifically, concerns, therefore Commonwealth post and the implicate ex facto not- charges 2007 pursue under the version free have been would withstanding years before. place took Appellee’s criminal conduct
585
sis,
must,
as we
with the plain language of the 1995 EWOC
statute under which
charged.
considering
statute,
the terms of the
we are cognizant
EWOC
of our
obligation
juvenile
to construe such protective
statutes broadly
Mack,
the welfare
safeguard
security
of children.
instructed,
A.2d at 772. As we have
this
protective
broad
purpose, as well as the common sense of the community and
the sense of decency, propriety, and morality which most
entertain,
people
guides the determination of whether Appel-
lee’s particular conduct is rendered
by
criminal
the EWOC
Id.; Randall,
statute.
With these factors in
we turn to the
of the
language
statute,
which defines
parent,
EWOC
follows: “A
guardian, or other person
the welfare
supervising
of a child
years
under 18
of age commits an offense if he knowingly
endangers
care,
the welfare of the
by
child
violating duty
(1995).26
protection or support.”
§
18 Pa.C.S.
In com-
statute,
menting on this
the Pennsylvania Joint State Govern-
ment Commission stated that the offense “involves the endan-
gering
physical or moral welfare of a
child
an act or
omission in violation of
even
legal duty
though such legal duty
does
carry
Mack,
not itself
a criminal sanction.”
Although the argues Commonwealth that the statutory ele- *37 ment requiring one to be “a parent, guardian or other person supervising the welfare of a ...” child is defined by whether care, has person “duty of protection support,” or so that the supervision entwined, elements of and are duty we find it unnecessary to resolve the merit of proposition. this Appel- lee’s sufficiency challenge was confined to whether he could be criminally liable for the “supervising welfare of a child” in the absence of direct of supervision children. The Common- adapted This statute was from the Model Penal of Code the Ameri- Institute, provides: parent, guardian, can Law which "A or other person supervising the welfare of a child under 18 commits a misde- knowingly endangers meanor if he by violating the child's welfare care, duty protection support.” § of or Model Penal Code 230.4.
586 was insuffi- evidence is whether appeal issue on wealth’s direct did not have Appellee because prove cient to EWOC with children. contact to the of care duty owed a
Therefore, whether not an is Jerome’s, particular, or to D.G. of St. children our grant within encompassed not appeal in this and issue Rather, issue we address legal appeal. of of allowance Appel- prove sufficed to the evidence whether solely concerns recognize we of a child. While of welfare lee’s supervision be in most circumstances will question answer this that the to the duty of the owed the extent by exploring informed exploration in such an child, not engage we need endangered trial of the unnecessary review into an herein; do we nor wade EWOC, in- elements other regarding court’s conclusions to prove sufficed evidence that the Commonwealth’s cluding care, or protection duty was aware knowingly or that duty, this that he violated support, because, child, ques- these again, of a the welfare endangered appeal. allowance of beyond our grant tions are element, the statute is Focusing supervision the child that it is unambiguous plain and welfare, including but the child’s supervising, been must have Government Joint State Pennsylvania that of D.G. As or observed, physical encompasses welfare Commission (comment); § 4304 18 Pa.C.S. of a child. welfare moral observed, Court Mack, Superior And as A.2d at 771. Dictionary Heritage the American by is defined “welfare” Black’s well-being,” and “health, prosperity; or happiness, prosperity.” any respect; “[w]ell-being Dictionary as Law Dictionary Heritage (citing American 83 A.3d Lynn, (8th ed.2001) Dictionary 1625 (4th Black’s Law child’s welfare ed.1999)). supervision By requiring safe-guard child, endeavors the statute than of the rather of chil well-being emotional, physical psychological, dren. physi is the child’s supervised is which
Because that must evidence welfare, the Commonwealth’s cal or moral *38 just demonstrate that: Appellee supervising was the welfare child, here, D.G., of a as well as other unnamed minors. Indeed, liability criminal does not turn on whether the offend- Jerome’s, er was supervising D.G. or the other children of St. a construction which would render meaningless precise statutory language encompassing child’s welfare. More- over, the requirement supervision is not limited to only actual, certain forms of such as supervision, direct or as the Superior Court held. its it By plain terms all encompasses forms of of a supervision child’s welfare. Respectfully, the Superior disregarded Court this plain language when it at- tempted to it modify with the of direct or qualifiers actual Further, supervision of children. as the Commonwealth cor- rectly argues, supervision routinely is accomplished through subordinates, and is no less if it supervisory does not involve personal encounters with the children. Like school Appellee, principals and managers day care centers supervise the welfare of the children under their care their through manage- facts, ment of others. Depending upon they could be criminally liable for endangering welfare of the children under their if supervision they knowingly abu- place sexually sive employees in such proximity to them as to allow for the abuse of these youth.
Simply put, Appellee did not safeguard physical and moral welfare of D.G. Rev. by placing Avery, a known child molester, in a position to molest him. For legal all his gyrations, it was precisely brought this conduct that within the subject class of individuals liability to criminal for concession, EWOC: his own he supervised the welfare of Archdiocese, D.G., the children of the including knowingly endangered by placing D.G.’swelfare in a location and situation that him gave free license to abuse D.G.
Specifically, examining the element supervision against facts presented, agree we with the Commonwealth exten- sive evidence established that was supervising welfare of D.G. and other children of the Archdiocese in his capacity Secretary for Clergy uniquely because responsible all their safeguarding physical and moral *39 who priests the and directed
welfare, supervised and he evidence demonstrates them. The with interacted directly was the Clergy, for Secretary position in his that of allegations to address Archdiocese in the man” “point in this of his time much spending by clergy, abuse sexual consid- testimony, he trial According Appellee’s endeavor. D.G., impor- to be the children, most including ered protecting investigating encompassed duty that job, his part tant includ- priests, by Archdiocesan of sexual misconduct reports Archdiocese, acting and of children the abuse the sexual ing a priest to remove determining whether by them protect way.” his out of be taken could so “children ministry from “to responsibility Appellee’s It was at 198. N.T. 5/16/2012 at 198. N.T. hurt.” child be that no would 5/23/2012 ensure be- despite that established evidence The Commonwealth’s abuse to sexual responding for responsible ing the welfare protecting for purpose against priests of sexual victims children, Appellee mollified other and D.G. being allegations were them their falsely telling by abuse would priest particular that and seriously investigated children, knowing despite around assigned be again never reassigned merely be supervision would under priests with on contact restrictions ministry no parish to another he trans- priests children; parishioners he informed reasons, leaving welfare health moved for ferred were rec- disregarded treatment routinely he in jeopardy; children relocated inform the failed to he priests; for ommendations took no he allegations; abuse about supervisor new priest’s away from kept priest abusive that the to ensure action and complaints he suppressed assignment; at his new children knowl- all with the priests; of the colleagues by concerns victim only had one rarely priests sexually abusive edge that the welfare endanger would all of these actions and more children, Finally, even including D.G. diocese’s enforcement, lawby was contacted when Appellee egregiously, of these investigation thwart their facts misrepresented and their crimes. priests, his conduct
Examining specifically relation to Rev. Avery D.G., the evidence established that Appellee endangered D.G.’swelfare by facilitating living arrangement that gave him, Rev. Avery access to while believing to be “guilty of sexual misconduct with minors.” The information that convinced that Rev. Avery was of sexual “guilty misconduct with minors” involved the allegations brought by R.F. in 1992 and Rev. Avery’s admission that “it could be” that events described R.F. occurred under the influence of alcohol.
When Appellee referred Rev. Avery mental health treat- *40 ment at Vianney St. John to him in prior placing proximity to D.G., Appellee failed to details of provide the sexual abuse and focused instead of Avery’s Rev. to propensity consume alcohol. Despite the warnings of the staff at Vianney St. John that they victims, were concerned about other that Rev. Avery placed should be in an assignment children, that excluded and Rev. Avery’s own admission that the conduct R.F. reported “must have happened,” Appellee initially recommended that Avery Rev. be made pastor associate at a with a parish grade school. rejected When Cardinal Bevilacqua this recommenda- tion, found a Appellee chaplaincy for him that included hous- children, but, from ing away at Rev. Avery’s request, Appellee petitioned Cardinal Bevilacqua to allow Rev. to Avery live Church, instead in the rectory of St. Jerome’s a parish with a grade school and where D.G. was to become an altar boy.
Appellee instructed Father that Avery Graham Rev. children, not to be around but that Rev. was to offer Avery his assistance at the which parish, necessarily him brought into regular contact with acting children as altar boys, including D.G. Father Although Graham was purportedly assigned to help Avery, monitor Rev. he did not understand himself to be Avery’s Rev. supervisor. priests Other in the rectory believed Avery Rev. was there because of overwork. Appellee did not warn parishioners St. Jerome’s about Rev. Avery, and informed his former that parishioners departure was for health reasons. to reported the hospital at Avery’s associate Rev.
When
were
jockeying priorities
disc
Avery’s
Rev.
Appellee
behavior
time,
grooming
the same
much of his
consuming
sexually
to
prior
R.F.
to
regard
with
engaged
he had
which
signs. Ap-
warning
these
him,
disregarded
abusing
seeing
at
shock
expressed
R.F.
even when
nothing
did
pellee
1998,
and when
a dance
Avery
jockeying
disc
Rev.
his sexual
minimizing
Avery was
that Rev.
became aware
who had
Kerper,
Father
He further instructed
R.F.
abuse of
com-
to take his
Avery’s
Appellee,
behavior
Rev.
reported
the Archdiocese.
Avery
hospital,
Rev.
plaints about
Mass at
to train to serve
began
months before D.G.
Several
procliv-
deviant
Jerome’s,
Avery’s
to fall victim Rev.
St.
be-
Avery’s
Rev.
concern that
ities,
expressed
Pellegrini
Dr.
out,”
acting
“for further
potential
there was
havior indicated
Avery
Rev.
meeting
after
at
N.T. 8/27/2012
was mini-
Avery
Rev.
perceived
April
Yet he
him.
allegations against
treatment and
mizing his
out.”
“acting
further
Avery from
Rev.
prevent
nothing
did
his con-
Dr.
voiced
Indeed,
Pellegrini
after
shortly
it was
jockey-
Avery
disc
cern,
seeing
expressed
R.F.
shock
was once
Avery
that Rev.
dance,
perceived
and Appellee
ing
abuse
and the sexual
for treatment
his need
minimizing
again
sexually
D.G.
him,
Rév.
abused
against
*41
afternoon,
Avery pulled
Rev.
1999, after
one
school
early
were about
him that their “sessions”
and instructed
D.G. aside
Mass,
asked the
Rev.
later,
Avery
following
A week
begin.
left,
took D.G.
Avery
Rev.
everyone
behind. Once
boy
stay
him,
this
repeating
sexually assaulted
sacristy and
to the
weeks later.
about
again
behavior
two
“super-
the phrase
common sense
reading and
plain
The
Appellee’s
doubt that
leaves little
of a child”
welfare
vising the
D.G.,
he
welfare
whose
endangerment
actions constituted
Further,
protec-
the broad
safeguarding.
for
was responsible
of the communi-
statute,
common sense
of the
tive purpose
which
morality
and
decency, propriety,
the sense of
ty, and
in our
actualized
entertain,
are
coalesce and
people
most
crim-
is
conduct
rendered
Appellee’s particular
conclusion
Mack,
in
inal
accord with the EWOC statute. See
The Superior Court below faulted the trial court in this case
for failing to consider Halye, which it found to be directly on
point and in conflict with the trial court’s
reasoning
supervision of a child is not required for an
actual/direct
EWOC conviction under the 1995 version of the statute.
however,
Lynn,
A.3d at 451. Halye,
factually
is
distinct
persuasive
Superior
Court’s conclusion that
supervision has to be direct or actual. The defendant
was a
Halye
mere visitor to the house of the child whose
welfare he was convicted of
he had no
endangering;
supervi-
sory authority
anyone.
over
Halye,
Nor are persuaded we by Appellee’s reliance on the 2005 Grand Jury Report reflecting the belief that the 1995 EWOC conduct, statute could not reach his the prior Philadelphia District Attorney’s prosecute decision not to due to the same belief, or the subsequent legislative amendment of the penal *42 statute. The decisions of neither grand jury the nor a prior
592 statute, the EWOC meaning of the Attorney prove
District contained language plain the by analyzing is determined which prior or the jury grand of the the members therein. What the statute is of scope the believed about Attorney District irrelevant. of amendment subsequent legislature’s is the
So too be consulted is not to First, history legislative statute. the § 1921. We 1 Pa.C.S. here, explicit. the statute is where, as relevant, pre-amend the of language the plain have applied super who it not exclude those hold that did statute to ment they whether child, of regardless aof vised welfare the plain cannot avoid the child. supervised directly A subse amendment. subsequent on a relying language by alter the retroactively does change language quent language in the plain apparent that is intent legislative the statute. version of prior to en understood generally is history
Legislative consideration legislative review retrospective a compass subsequent oxymoronic a review of the statute, not of a Finkelstein, 496 U.S. See, v. history. e.g., Sullivan legislative (1990) (Scalia, J., L.Ed.2d 563 S.Ct. history is the (“The history of a statute concurring) legislative legislative ‘Subsequent and enactment. of its consideration history post-enactment means history’ presumably —which contradiction enactment —is a consideration and a statute’s intent of terms.”). legislative cannot discern We relevant, version prior Assembly passed General the General the intent of examining statute the EWOC Corp. Axe Science that statute. See amended Assembly that (1972) Commonwealth, 293 A.2d 6 Pa.Cmwlth. v. legislation amendatory (“... drafted subsequently to hold to the intent legislative demonstrate ... can somehow that legis be to hold ... would legislation previously enacted permitted could be session subsequent legislative in a lators legisla prior legislators intent of legislative indicate of a ”). Further, former version while the ... tive session a later intent legislative to discern is statute relevant *43 statutory language ambiguous, version when the is the inverse 1921(c)(5) See Pa.C.S. § is not true. that when (providing of the are explicit, the words statute not the General Assem- intent bly’s may by considering, among be ascertained other law). things, the former
Finally, that the has Appellee argues EWOC statute himself, heretofore been applied to someone like who did not come into contact with the children whose welfare he endan- gered. We find this to be argument inconsequential and irrelevant. analysis plain Our of the of the language EWOC statute and examination of whether the voluminous facts of supervision record met the element of the offense are not on the factual that dependent circumstances led to convictions in cases. prior Superior
The holding Court erred the EWOC statute evidence of required supervision direct of children and over- turning Appellee’s conviction on that basis. The Common- wealth’s evidence sufficed to show that that was a children, person supervising many including welfare Because we conclude that the D.G. Commonwealth’s evidence princi- was sufficient sustain the conviction for as a EWOC we do not address the contention that pal, separate evidence was insufficient to sustain EWOC conviction as reversed, an The of the is accomplice. Superior Order Court and the matter is remanded for further consistent proceedings with this opinion.
Former Chief did not in the participate Justice CASTILLE decision of this case. EAKIN, join
Justices the opinion. TODD STEVENS a dissenting opinion. Chief Justice SAYLOR files SAYLOR, dissenting. Chief Justice Because I differ with the of the majority’s interpretation 4304(a) endangerment reposed statute Section Code, I respectfully Crimes dissent. to the Com- favorably viewed
Preliminarily, evidence gross guilty indeed is suggests monwealth only ques- The harm. widespread which caused derelictions text of the however, Court, is whether tion before statute, pre-amendment in the it existed endangerment upon culpability of criminal timeframe, imposition allowed the it follow, I would find which For the reasons Appellee. not. did or “parent, guardian for a it an offense makes
The statute
knowingly
a child”
the welfare of
supervising
person
other
*44
care, protec-
a
of
violating duty
welfare
a child’s
endanger
4304(a) (1995),
in
quoted
§
tion,
Pa.C.S.
18
support.
or
issue
The
559,
principal
A.3d at 807.
114
Majority Opinion
pre-
of the
element
“supervision”
to the
pertains
appeal
in this
element
is whether that
question
The
offense.
amendment
who
people
other
supervised
a
who
person
directed to
welfare,
there
a
since
child’s
supervising
for
responsible
were
welfare
directly supervised the
that Appellee
evidence
is little
or elsewhere.
Church
child at Saint Jerome’s
any
of
should “be
its provisions
states that
The
Code
Crimes
18
their
fair
terms.”
import
the
according to
construed
discerni-
clearly
is not
import
the fair
§ 105. Where
Pa.C.S.
that
the principles
must select
ble, however,
reviewing court
that,
itself
The
Code
states
Crimes
its evaluative task.
guide
interpreted
shall be
instances,
language ...
“the
in such
the special
this title and
stated in
purposes
the general
further
Thus, I
involved.” Id.
particular provision
of the
purposes
the
it
degree
to be reasonable
majority’s position
find the
613,
Mack,
595 1928(b)(1)), § 1 (citing meaning Pa.C.S. the ambiguity should be resolved in favor of the accused. See Common- Booth, 843, (2001). wealth v. 564 Pa. 766 A.2d 846 Wooten, 45, See generally Commonwealth v. 519 Pa. 545 (1988) (“[A]ll A.2d penal provisions should be strictly construed, and ... where an exists in the ambiguity language employed by statute, legislature penal it should be interpreted a light most favorable to the criminally ac- cused.”).
Further
task,
complicating
interpretive
the official com-
ment to Section 105 of the Crimes Code denies what the text
assumes,
namely,
there can be a genuine ambiguity. See
(“There
§
Pa.C.S.
Official Cmt.
is no valid reason why
penal statutes should not be reasonably construed according
to the fair
import
added,
their
(emphasis
terms[.]”
internal
omitted)).
quotation
Moreover,
marks
general
purposes—
which are listed in Section 104—are multiple and conflicting.
For example,
purpose
one
is
provide
fair notice to citizens
of the nature of the conduct which the government considers
104(4).1
to be
§
criminal.
See
Pa.C.S.
Another is to
prevent conduct that unjustifiably inflicts or threatens sub-
104(1).
§
stantial harm.
id.
that,
See
It can
be
hardly
denied
*45
over the general course of
events
Pennsylvania, there will
be instances of harmful conduct the criminalization of which is
cases,
not substantially clear.
In such
“general
these
pur-
poses” of the Crimes Code are in significant tension.
inconsistent,
light
this multitude of
and sometimes
conflicting, interpretive principles woven into Pennsylvania
law,
utilize,
I find it advisable to
most prominently, the rule of
(or
strict
“lenity”)
construction
in relation
ambiguous
to
crimi-
provisions.
nal
foundations,
The rule rests on constitutional
States,
100, 112,
see Dunn v.
2190,
United
442 U.S.
99 S.Ct.
2197,
(1979)
596 forced be no individual that which mandate process of due pies is indictment, his conduct whether peril at speculate, to 259, Lanier, 520 U.S. v. States also United see prohibited”); (1997) (describing 1225, L.Ed.2d 432 1219, 137 266, 117 S.Ct. void- of the constitutional version” “junior rule as lenity the fair- itself, on the which, is based doctrine for-vagueness Clause), use and its Process of the Due warning requirement Therefore, ultimately I must practice.2 past is consistent suggests it degree to the majority opinion with the disagree relative pertain does construction rule of strict the that 577-78, at Majority Opinion statute. See endangerment statute endangerment that the (implying at 817-18 A.3d 114 construction); id. strict rule of to the exception an represents “obli- we are (stating that at 822-23 584-85, 114 A.3d statute).3 endangerment construe “broadly” gat[ed]” mind, is, substantial context, my there present In the to apply intended statute was that pre-amendment doubt is true that It Appellee. such to individuals sexually-abusive priests. from children to protect obligated explanation Superior Court’s However, persuasive I find is which Appellee, on the duty part to a this amounted v. Commonwealth See supervision. from distinguished to be two Additionally, the 434, (Pa.Super.2013). 453 83 A.3d Lynn, guard- Legislature parents by examples provided — relative from different very position in a ians—are Commonwealth generally their care. See children under (2007) (noting 1199, 1206 119, 130, A.2d Russo, 934 v. 594 Pa. general phrase generis, ejusdem under doctrine 843, 246, Booth, 228, 853 766 A.2d See, Pa. v. 564 e.g., Commonwealth 2. 1309, A.2d 392 481 Pa. (2001); Allsup, v. Commonwealth Dickson, 918 A.2d Pa. (1978); v. Commonwealth cf. mandatory (2007) minimum to a (applying strict construction Code). the Judicial provision of sentence of an holding on resolution majority’s is not based recognize I plain terms its that the statute ambiguity, its determination but on 590-91, 114 Majority Opinion at See encompassed conduct. Appellee’s particular criminal suggestion that a Regardless, any at 826. A.3d *46 general of strict construc- rule exempted be from provision should interpretation inconsistency in the and confusion likely to lead tion is varied light in particularly going provisions penal of interpretive forward— above. approaches outlined light “should be construed in of the particular words preceding it”). Although may these factors not be determinative of intent, legislative they demonstrate the existence of an ambi- guity as to whether the pre-amendment statute was meant to subsume supervisors-of-supervisors such as Appellee. That case, being the I would the ambiguity resolve in Appellee’s favor consistent with the foregoing discussion. cannot,
Finally, Appellee view, in my have been validly convicted as an accomplice because the statute accomplice requires an intent to promote or facilitate the in offense 306(c), question. § See 18 quoted Majority Pa.C.S. Opinion at 572 n. observed, A.3d at 815 n. 20. Although, as have Appellee may been substantially derelict his obli- as I gations, read the record there placed were no facts before jury which it could reasonably affirmatively conclude he intended that children’s welfare be endangered.
v. COUNTY; OF COMMON COURT PLEAS OF PHILADELPHIA Judge Philadelphia and Court of Common Pleas President County; and Court Administrator of Common Pleas Court of Philadelphia County, Respondents. EM
No. 29 2015. Supreme Pennsylvania. Court of
May ORDER PER CURIAM. NOW,
AND this 12th day May, Application Leave to File Original Leave Process and the Petition for Writ of Mandamus are GRANTED. notes Appellee’s by phone; days two later with Rev. denial, reflected but include do not from this conversation
Notes
notes Finally, the Commonwealth charges against criminal bring reluctance prosecutorial that stated Jury Report itself officials, 2005 Grand church endanger- clearly constituted officials of Archdiocesan actions amending children, recommended but welfare of ment of the contact with not in official clarify that Church the statute a child. welfare supervising nevertheless be may a child arguments to the Commonwealth’s responds analy Superior Court’s statutory language, on the relying sis, to the EWOC statute. 2007 amendment and the the require that statutory language, on the based argues, “violating of a child” and the welfare of “supervising ments primar relies support, Appellee are distinct. As duty of care” (Pa.Su Brown, 721 A.2d v. ily Commonwealth rejected the defendant’s Superior Court where per.1998), a child welfare supervising he was not argument witnessed, abuse he the child duty report had no because he elements, one, two “duty” were stating “person” at 1107 & n. 3. id. plain language on the rely purports further that because argue statute to EWOC pre-amended of a child” the welfare supervising “a person the phrase “parent follows words or it guardian,” applies exclusively