Commonwealth v. Martir
712 A.2d 327
Pa. Super. Ct.
1998
Check Treatment

*1 Because find that the trial court com- we of law controlled the

mitted error case, we

outcome of the reverse remand only. Strawbridge

for a new as to trial relinquished.

Jurisdiction is Pennsylvania,

COMMONWEALTH of

Appellee, MARTIR, Appellant.

Luz Zeneida

Superior Pennsylvania. Court of 9, 1998.

Submitted Feb. May

Filed

328 cases,

all criminal may sup- the same facts port multiple separate convictions and sen- tences for each except conviction in cases where the greater offenses are and lesser included offenses.” Commonwealth v. Dobbs, 488, 388, 452 682 A.2d (1996) Anderson, (quoting 390 650 A.2d at (citations omitted)). 23 operative “The in- Younger, Charles D. Assistant Public De- quiry is whether the crimes involved are fender, Reading, appellant. greater offenses, i.e., and lesser included Bell, L. Rebecca Assistant District Attor- whether the elements of the lesser includ- ney, Com., Reading, appellee. ed necessary subcomponents offense are component but not a sufficient of elements CAVANAUGH, POPOVICH, Before and Anderson, of another crime.” BECK, JJ. (citation omitted). 23 POPOVICH, Anderson, Judge: in stated at inquiry, 24: “Our ... is whether the ele This appeal is an from judgment the ments of the lesser crime are all included sentence entered in the Court of Common crime, within greater the elements of the and Pleas of County, Berks following appellant’s the offense includes at least one addi charges conviction on recklessly endanger- different, tional element which is in which ing person, 2705, § 18 Pa.C.S.A and case merge, the sentences or whether both children, 18 Pa. require proof crimes of at least one element Herein, appellant C.S.A.. asserts not, .which the other in does which case the that the lower court erred when it deter- merge.” sentences do not mined that her sentence for endangering the welfare of children merge did not into her Appellant was recklessly convicted of sentence for endangerment. Upon person pursuant to 18 review, we affirm. 2705, provides: Pa.C.S.A. which “A

Herein, appellant caring was for a twenty- commits a degree misdemeanor the second month two old recklessly child. The child if he engages sustained in conduct which second degree and third places may burns. The place burns or in danger occurred when she threw hot water out of death or bodily injury.” the serious The mens residence, door of the required and the water struck rea for this crime ais conscious Appellant the child. then disregard took the great child to risk of known death or water, immerse him in cold bodily but turned-on harm person. to another Common wrong Cottam, faucet actually immersed the child wealth v. 420 616 in scalding 988, 1005(1992), denied, hot appeal water. A.2d 535 Pa. (1993). 673, 636 A.2d 632 question of whether convictions

The merge purposes for the of sentencing is a Appellant was also of en convicted challenge to legality of the sentence im dangering pursuant the welfare of children to posed by court, the lower discretionary 18 provides: par Pa.C.S.A. “A appropriate. review not Commonwealth v. ent, guardian or supervising other Rodriquez, 449 years of a child under 18 age (1996). Silay, Commonwealth v. 694 commits a degree misdemeanor of the second (Pa.Super.1997), A.2d we summa if knowingly he endangers the welfare of the rized merger doctrine as follows: by care, violating duty protection child

[T]he test for determining whether support.” or required The mens rea for this merge for sentencing purposes was clari- knowing crime is a violation of the accused’s fied our supreme in duty Cottam, court Common- of care to the minor-victim. Anderson, wealth v. 538 Pa. precisely, A.2d 616 A.2d at 1005. More the Com (1994). There, 1) the court in prove held “that monwealth must that: the accused duty protect his duty or to or her to protect is aware of his her accused aware 2) Pahel, child; accused is aware that the child 689 A.2d at 964. Reckless the child.” require that threaten the circumstances could does Common- welfare; any physical psychological child’s has prove to the accused wealth 3) has the accused has either failed act or harm. special duty his victim from *3 meager taken so lame or that such the of again, action a conviction for crime Once expected pro- reasonably actions cannot be to requires of a child endangering the welfare v. element, tect the child’s welfare. Commonwealth not of which is subsumed proof an Pahel, 963, 159, Pa.Super. 964 456 689 A.2d endanger- any of reckless within element Cardwell, (1997), Anderson, citing 23-24, v. Commonwealth 650 A.2d at ment. See (1986). 38, 311, State, 357 315 v. quoting, approval, with Williams (1991) (in 312, A.2d Md. 593 671 deter- 323 this court in Commonwealth As noted mining is a whether one offense lesser-in- Tipton, A.2d v. 396 578 another, we the cluded offense of consider (1990), it en “challenging 965-966 remains a “minimally that neces- required evidence is merger is deavor” to determine whether offense; sary” to a for each secure conviction law, and, despite the proper, recent case requires a proof if each offense of fact which of whether one crime is a lesser question not, upon minimal the other based the does include offense of another remains “an en evidence, not required then the offenses do of nature.” is the mystifying deavor a Such merge). However, review, upon we present case. agree lower that en with the court reckless Third, child endangering the welfare of a dangerment endangering and the of welfare proof is child requires that the victim “a have greater-lesser-includ children do not a years age.” 18 Pa. age under the of 18 relationship. ed offense § does C.S.A. 4304. Reckless require proof age. of the victim’s Cf.

Appellant’s argument fail ev- not must because Frank, ery 433 endangering element of the welfare of Commonwealth denied, (1994),appeal 538 children not in the of 640 A.2d 908 is subsumed elements (under (1994) First, endangerment. par- im- reckless most Pa. 649 A.2d 668 the and ease, portantly, rape, a for the endangering conviction ticular circumstances of this proof involuntary the requires welfare of children that deviate Pa.C.SAl i.e., intercourse, 3123(5), “knowingly,” accused acted that the ac- do sexual P.C.S.A. only duty involuntary cused not knew that he a merge; has deviate sexual inter- not course, proof the child but also knew the child fact charged, required that placed not, i.e., in rape was circumstances that could the that victim was did threaten the child’s A conviction for years age). welfare. under sixteen - endangerment obviously requires rea of Appellant submits that the mens only recklessly. proof that the accused acted knowingly encompasses mens rea the lesser Thus, a never be could convicted and, therefore, recklessness, crimes her endangering the welfare of a child based agree with the merge. should While we Accordingly, upon reckless conduct alone. proposition that a lesser mens rea general of the question the of “whether the elements rea, greater in a mens see subsumed all ele- lesser crime are included within the 302(e), argument ig- appellant’s Pa.C.S.A. in greater ments of the crime” is answered endangering the fact that she claims nores Anderson, negative. the See of children is the lesser-included welfare (test is a of whether offense lesser-includ- offense, requires that offense another). words, In other ed offense of rea. mens “necessary sub- knowing behavior is not a behavior, component” merger of reckless endan if we were to consider Even Anderson, at not See mandated. greater- as the gering welfare children offense, that it is obvious included A for reckless

Second, merge. not conviction endangering a do conviction that endangerment requires proof of conduct proof “the requires a child places may place or danger in of the other and therefore the sentences do bodily of death or injury, serious merge. while a conviction for Judge Ludgate perceptively As so stated: only children requires proof of circumstances necessary elements [T]he establish that could threaten the physical child’s or endangering the welfare of a child are psychological welfare. reckless endan- required distinct from those recklessly germent requires proof of a fact that endan- person.... Only gering the welfare of children does not. actions, action, and not the omission of words, other the element of conduct which recklessly in placing accused places may place in danger of in great risk of bodily death or known bodily death or serious injury is not sub- harm can establish the recklessly crime of proof sumed within placed that a child *4 endangering person. another circumstance that could threaten the child. The distinctions between the elements of Thus, endangerment reckless is not a lesser- endangering the welfare of a child and included endangering offense of the welfare recklessly endangering person are children, of and the crimes not merge.1 do further by accentuated the fact that sum, In we find that the lower court did two crimes protect distinct societal inter- not err when merge appellant’s it refused to ests, and are located different sections endangering conviction for the welfare of of the crimes code.1 These factors are children into his conviction for reckless en- further indicia that the two crimes do not dangerment purposes for the sentencing. merge purpose for the sentencing. See White, Commonwealth v. Judgment [341 of sentence affirmed. 261], (1985)(crimes 491 A.2d 252 rape merge and incest do not they because have BECK, J., Concurring files a Opinion. different elements necessarily that do not BECK, Judge, concurring: other, involve the are contained in differ- code, ent sections of the majority Like the I conclude that Endan- interests). different social all For of these gering Children, the Welfare of 18 Pa.C.S.A. reasons, the recklessly endanger- crimes of and Recklessly Endangering Another ing endangering Person, 18 Pa.C.S.A. do not merge. welfare of merge a child do not for the As the trial court noted the two crimes do purposes of sentencing. have a lesser-included offense relationship. I emphasize write to that' the Recklessly endangering 1. is majority’s analysis clearly demonstrates that Involving contained within "Article B: Offenses one crime is not the lesser included Person”, offense Danger endangering to the while Appellant argues endangering also the wel- involuntary a review of the elements of man- fare of children must be a slaughter. lesser-included offense endangerment of reckless endangering because guilty involuntary "A manslaugh- the welfare of children is a lesser-included of- ter doing when as a direct result of an involuntary manslaughter fense of and involun- grossly negligent unlawful act in reckless or tary manslaughter and reckless manner, doing or the of a lawful act in a reckless offenses, except are identical for the death of the manner, grossly negligent he causes the death victim. 2504(a). person." of another 18 Pa.C.S.A. As Barnhart, 630, proof made clear in endangering While it is true that the welfare of underlying “unlawful act” of a child a involuntary lesser-included offense of Bird, welfare manslaughter, necessary of children is to sustain a Commonwealth v. (1991), involuntary manslaughter. conviction for cit- Barnhart, ing all the elements of Commonwealth v. (1985), children are en- subsumed in the "unlawful act” dangerment involuntary manslaughter, is also a element of lesser-include offense of and the involuntary manslaughter, Tipton, merge purposes 578’ convictions A.2d at for the of sentenc- 966-67, Barnhart, necessarily ing. it does not follow that endan- 497 A.2d at 630. Reckless en- gering dangerment the welfare of children is a lesser-include requires has no similar element that fact, .endangerment. act," and, offense ap- proof therefore, of reckless underlying of an "unlawful pellant’s specious argument quickly appellant's argument dismissed fails. D: child is contained within "Article Against Family." Offenses Op.

Trial Ct. At 19-20. DISTRIBUTING

BRAWLEY

CO., INC., Appellee, PROPERTIES, a Limited

HEARTLAND Manage-

Partnership and Cumberland

ment, Partnership, Appellants.

Appeal of HEARTLAND PROPERTIES.

Superior Pennsylvania. Court of May

Filed 1998. Rexrode, York,

Rodney appellant. E. Gierasch, York, Brawley William C. Distributing, appellee. McEWEN, Judge, President

Before HOFFMAN, JJ. HUDOCK and PER CURIAM: OPINION from the entered appeal This is order Pleas County York Court Common Co., Brawley appellee Distributing granting Brawley attorney’s Inc.’s motion for fees. interlocutory, quash appeal seeks to as pursuant claiming it not a final order appealable is not Pa. R.A.P. 341 and R.A.P. right pursuant to Pa. alio, involves, dispute inter

The instant by Brawley against claim breach of contract Man- Properties and Cumberland Heartland Properties prelim- filed agement. Heartland objections of contract inary breach By January order dated claim.