*3 WIEAND, JOHNSON, Before BECK and JJ. BECK, Judge:
This is appeal an from a denial by the court of common pleas a writ of certiorari municipal court, to the had appellant convicted Julia violating Cardwell of 18 Pa.C. 4304, endangering S.A. the welfare of a child. upon are called to decide whether sup- the evidence proof ports beyond a reasonable doubt of the intent element of this mother, offense when appellant, the child’s took only inconsistent and steps ineffectual her child from another’s severe abuse.
During the time period, appellant relevant Julia Cardwell (Julia) in lived in Philadelphia family house in a unit with her daughter Clyde Alicia her husband Cardwell begin- at least four years, For stepfather. Alicia’s (Clyde), in engaged pattern Clyde in approximately ning Alicia. When Alicia was stepdaughter of his sexual abuse old,1 buy sexually Clyde began years eleven” “about began photograph He then stimulating clothing. Later, explicit positions. in sexually child while clothed taking photographs included photographic sessions these wearing only stockings or nude totally of Alicia either sexually sugges- to write Clyde’s It was habit garter belts. daily an almost basis. to Alicia on *4 house, occasion, things in the he and broke one that threw in the walls of the he had of holes punched that number ,.357 he pistol, which house, magnum and that he carried moved of 1984 Julia February In mantelpiece. on the kept at on testimony vague testified trial as dates. She 1. Alicia’s 14, 1985, years also old. She January presently was that she testified, however, began she was in 1977 when the abuse that sexual ages We years are inconsistent. and "about eleven” old. These dates year began or two of the within a that the events testified to assume 11, been 1979. year would have Alicia turned some of and Alicia’s clothes to her (Alicia’s mother’s grandmother’s) However, house. and both Julia Alicia re- at mained home with In Clyde. applied March 1984 Julia for a transfer of Alicia from school to a school closer to In April however, Julia’s mother’s house. Julia’s fire, mother’s house was demolished by causing the death of Julia's father. The record reveals Julia took no further steps to the relieve situation until Alicia ran away from home September on 2, 1984,
On complaint October a criminal was sworn against Cardwell, listing Julia Alicia complainant Julia charging violating stating Pa.C.S.A. § that parent she: “as supervising ... knowingly [Alicia] endangered the of said by violating child a duty of care, protection, and/or support, to wit: defendant was aware Clyde Cardwell was having complain- sex with ant and taking polaroid pictures complainant of in various explicit sexually positions reporting without this to authori- ____” ties was tried in bench in Municipal convicted trial
Court of Philadelphia. She was sentenced to one-year pro- bation appealed the judgment sentence to Common filing Pleas Court petition for a writ certiorari. Ned Judge L. Hirsh of the Philadelphia Court Common Pleas 13,1985. denied the August writ certiorari on This appeal order denying the writ certiorari followed. On appeal, appellant challenges sufficiency both of the complaint and of the evidence. reject appellant’s allegation complaint was record, briefs,
defective. On review of Judge opinion Hirsh’s filed January 14, find complaint was sufficient under Pa.R.Crim.P. 132. As to issue we affirm on Judge the basis of Hirsh’s opinion. this Appellant’s challenge sufficiency to the evidence that the evidence adduced at trial insufficient to prove was beyond a reasonable doubt the intent element the offense of endangering the welfare of is in challenge a child. This two parts. The first part required concerns the intent *5 statutory of is a matter offense and defining the statute interpretation. of Welfare Endangering
18 Pa.C.S.A. § Children, provides: supervising person or other parent, guardian,
A commits years age of a child under of welfare endan- knowingly if degree he the second of misdemeanor care, violating duty child of the gers welfare support. or protection act” requires “knowing alleges this statute
Appellant child, implies appellant of a endangering the welfare do the statute. We satisfy to act omission cannot that an a child endangering The crime agree.2 not required by The intent element intent offense. specific is a must, of care. We knowing duty of a 4303 is a violation his therefore, knowingly violates an accused interpret when duty or her of care. we knowingly, acts
To a defendant determine whether kinds Code that defines to the section Crimes look in rele- 302(b), provides, culpability, Pa.C.S.A. § part: vant respect to a material with
(2) knowingly A acts person element of an offense when: of his conduct
(i) the nature if the element involves circumstances, that his he is aware or attendant circumstances that nature or that such conduct exist; and conduct, of his he result
(ii) if the element involves a his conduct certain practically that it is aware cause such a result. will con- mean overall interpret “nature of his conduct” If a as acts.
duct, as well including omissions to act omission, then, a an can include duty of care violation respect to act omitting can act person “knowingly” duty. infra, from omis- be can derived explain, As of intent evidence so feeble to be ineffectual. sion or from acts This court previously discussed the issue of a parent’s *6 of in duty care of context to challenge the sufficiency of evidence on a conviction for involuntary manslaughter. In Howard, Commonwealth v. 265 Pa.Super. 402 A.2d (1979), upheld the conviction of a mother who failed protect her child from the physical abuse of the mother’s boyfriend, who lived with them. We said in Howard:
an omission to may act create criminal culpability under our Crimes though Code even the law defining the of- fense, here, “act,” requires an where duty “a perform the omitted act is otherwise imposed by law.” 301(b)(2). Here, 18 Pa.C.S.A. appellant and the victim in stood the relation of parent and A child. parent had legal child, duty and the discharge of this duty requires performance. affirmative Id., 265 Pa.Superior Ct. at 402 A.2d at In footnote, the court added: parent “When a sees helpless child being beaten and period time, abused over a she is not permitted to sit back and wait until the child is in obvious need of medical attention before acting—the is duty to prevent Id., the harm.” 265 Pa.Superior Ct. at 538 n. 402 A.2d at n. 3.
Although the charge in Howard was involuntary manslaughter, requires which “reckless or grossly negli gent” behavior, rather than the instant charge, re which quires “knowing” care, violation of duty we find the case instructive. Where there is a duty care and where there is sufficient evidence that the parent knows that action is required to fulfill parental his or her duty, then a failure to act may knowing be failure in parent’s duty of care.
Further guidance provided is in this court’s opinion Barnhart, Commonwealth v. 345 Pa.Super. 497 A.2d (1985). In Barnhart the court stated: Section 4304 speaks of a of care.” “duty The Crimes Code nowhere Commonwealth, defines this The duty. response to appellants’ request specific for “the law alleged to have of care which duty imposes Defendants,” stated: by the violated been out for one’s child arises to render care duty The The to receive right and child. relationship parent law, natural attributable one created medical care is mankind than to enactments rather to the nature of Penn- of the Commonwealth statutes law. Various cor- right this natural impliedly recognize sylvania for to ensure remedies duty providing responding parents provide of children whose fail the child’s necessary care medical reasonable health. elaborate, ample failed to
Although the Commonwealth
charged
A
parent
its proposition.
exists for
authority
*7
control,
and edu-
of care and
subsistence
duty
with the
and emo-
physical,
child’s
mental
necessary for the
cation
morals.
and
tional health
(footnote
18,
Id., Pa.Superior Ct. at 345 omitted). to 18 Pa.C.S.A.
Moreover, 1972 Official Comment the states, in part: 4304 § the simplifies various consolidates and
This section endangering welfare concerning crimes provisions endangering The involves children. offense by of a child an act or omission moral welfare physical or legal duty though even such legal duty violation a criminal sanction. carry not itself does quot- was 1986) added). This comment (Purdon’s (emphasis v. Taylor, this court in ed Commonwealth approval In 1228, (1984). 1230 471 A.2d 324 Pa.Super. Supreme Court [Pennsylvania] we noted that Taylor, “[t]he cover drawn broadly 4304 was has that Section said the welfare safeguard conduct in order range wide meaning by given It is to be of children. security community sense of to the common reference it enacted. Com- for which was purpose protective broad 770, 772 613, 618, 359 A.2d Mack, Pa. 467 monwealth v. 426-27, A.2d 471 at Pa.Super. at (1976).” 324 Taylor, 46 casés,
In three
court
previous
upheld
this
has
convictions
violating
for
upon
Pa.C.S.A.
based
an act of
§
Barnhart,
In
supra,
omission.
defendants were con-
violating
victed of
4304 when their child died of cancer
§
failed,
reasons,
religious
after defendants
to seek medi-
Also,
cal treatment for the child.
in Commonwealth v.
Morrison,
265 Pa.Super.
(1979),
We hold that evidence is prove sufficient to the intent element of the offense of endangering the welfare of child, 4304, 18 Pa.C.S.A. when the accused is aware child; his or her duty protect to the is aware that the child is in circumstances that threaten the physical child’s or welfare; psychological and has either failed to act or has taken actions so lame or that meager such actions cannot to reasonably expected be be effective to the child’s or physical psychological welfare.
Having
quantum
required,
established the
of intent
part
challenge
we next address the second
to
appellant’s
evidence,
prosecu-
that the
sufficiency of the
beyond
intent
reasonable
prove
required
tion did not
whether,
of the evidence is
sufficiency
test of
doubt. The
to
light most
in the
favorable
viewing the evidence
fa-
Commonwealth,
drawing
reasonable inferences
all
Commonwealth, there is sufficient evidence
to the
vorable
beyond
the crime
reasonable
every
find
element of
fact,
credibility
on the
passing
The trier of
while
doubt.
the evidence
weight
and the
be afforded
the witnesses
all, part, or none of the evi-
free to believe
produced,
A.2d
Jackson, 506 Pa.
v.
dence. Commonwealth
Pa.Super.
(1984);
Griscavage,
v.
Commonwealth
challenge
only
(1984).
goes
Appellant’s
In the case sub that her Cardwell learned appellant from the date being sexually by Clyde Card- Alicia was abused daughter escape away Alicia ran from home well to the date months, only In those ten Julia’s intolerable situation. consisted of: daughter her protecting directed at actions than ex- little more Clyde two letters to that did writing Alicia; his anger of and at abuse knowledge her press schools; some of moving to transfer applying for Alicia noteWe to Julia’s mother’s house. clothing her Alicia’s mother’s house was moving to Julia’s remedy that fire the destruction tragically frustrated no took remains that Julia but the fact May house situation daughter’s desperate further to relieve her steps Alicia May from 1984 until months ensued in the four September away ran from home of her horren- knowledge to Julia’s testified at trial Alicia her talked to testified that she She predicament. dous throughout twice a once or week” “maybe mother or notes pictures Julia whatever giving summer of Clyde. Alicia testified from gotten Alicia had out get us trying best mother said “she was so. steps to do no concrete there,” that Julia took but 3-page letters Julia into the two Alicia also read evidence *9 letter, 3,1984, January The first dated was Clyde. to wrote in part: C-l and reads Exhibit Commonwealth I from gathered one of the notes have Reading page feels____ for Licia, you she She blames you can see how I done to her. things you have know who a lot of times. You. by both pregnant Licia was out of doing making nervous wreck you’re ... [A]ll get I can child, only way my I think that the my and, course, leaving sanity together you, child’s taking her with me. 27, 1984, letter, was Common- February dated
The second in part: and reads Exhibit C-2 wealth child____ want, it’s you my not me that It’s I found out I was too also when I am to blame because it, to sink in. really, shocked numb abortions, did care? you Licia had these two ... When taking talking The after were about day you F no. Licia stockings____ When garter with belts pictures any her to hurts, hurt, going subject I I am not to bull____ more of your because going child is to have nervous breakdown
My of you____ if think you child. And engaged my in sex with
[Y]ou you’re crazy you, in going stay I’m house] [the loon____ you if do not me to take to court lawyer [you] told My fair, think it’s you that’s since Licia. think support F your stepchild. okay was that Julia Cardwell clearly shows
This evidence Alicia was facts: the circumstances aware of these endangered abused; circumstances being those care and duty of child; owed a that Julia had was Alicia3; remedy that one protection resided; and Clyde house in which Alicia from the remove Alicia from removing ineffectiveness that Julia’s her) that Alicia’s meant (or protecting house otherwise Barnhart, out of legal duty instant case arises supra,(cid:127) in the 3. As in parent relationship of and child. *10 This awareness is endangered. to be welfare continued a reasonable doubt. beyond to establish intent sufficient of the intent sufficiency proof to challenge the Julia’s therefore fails. her element of offense Hence, beyond the evidence shows find that knowingly the endangered wel doubt Julia reasonable care, violating duty protection or by the child fare of common did not err in Thus, pleas the court of support. municipal in court that the adduced at trial concluding facts doubt that prove beyond to a reasonable sufficient were 4304. The 18 Pa.C.S.A. Court Cardwell violated Julia petition for a properly Pleas therefore denied Common of certiorari. writ affirmed.
Order WIEAND, J., opinion. concurring files a WIEAND, concurring: Judge, affirm, may I it join majority’s decision
Although holding majority’s that the suggest amiss to not be great to its own facts. must confined to a extent decision be disturbing. suggest They in this case are The facts daughter had that her minor twice Cardwell knew Julia husband, stepfather, her impregnated Julia’s by been sexually stepfather her the child had been abused Neverthe- years. of at least four repeatedly period over a significant steps her less, failed to any take Although real choices from Julia’s child continued abuse. her husband were her fear of in not unreasonable view to the report her husband difficult—she could limited leave the authorities, daughter her she could take home, daughter away—she could send marital or she daughter’s by do- endangered unquestionably at the child’s continued abuse nothing prevent ing stepfather. child’s hands in this case that holding from the does not follow
It he or she has merely will made criminal because parent be of a child the abuse preventing unsuccessful been The criminal should not allowed to parent's spouse. law be child response public outcry against out in abuse reach parent good attempted criminalize a who faith has successfully to confront dilemma but has failed terrible family relationship to live in a with both being required child and the an abused abuser.
erine R. his
guardians, Appellants v. ALTMAN, Rodney M.D. S. Pennsylvania. Superior Court of Argued March 1986. Sept.
Filed notes tive intercourse with vaginal had Clyde that Alicia testified attempted and on one occasion had her on four occasions in pregnant by Clyde twice Alicia became anal intercourse. times, the second abortion both and had abortions testimony also 1983. There was occurring on October use child with the vibrator. Clyde had sex with the in occurred of intercourse The last instance any did not tell about anyone testified that she Alicia the second she her mother after abuse until told the sexual cross-examination, that at Alicia admitted On abortion. moth- guessing game sort of first she “played [her November, 1983, it not until some time and that was er]” abusing had Clyde understood that been clearly that Julia Alicia. Clyde January lengthy two letters Julia wrote 1984, indicating knowledge of this full February she warning vaguely him situation and abhorrent she Alicia testified that not tolerate it. We note that would up on Clyde beat Clyde, and Julia were afraid of