*2 POPOVICH, HESTER, JJ. Before FORD ELLIOTT POPOVICH, Judge: Pahel, the Tammy appeals judgment
The Sue appellant, (3-24 day endanger- months for imprisonment) sentence less the of her child. reverse. ing facts, most to the verdict- light viewed favorable therefrom, drawing all inferences re- winner and reasonable 8, 1995, M. the Dr. Ronald morning February veal on Pahel. no- 5-year-old Timothy examined The doctor Unice injuries,” x-rays facial which revealed were “significant ticed swelling marked on the nasal nasal fractures manifested marked bridge, with discoloration of the nose and discoloration doctor injuries, under Consistent with the the eyes. both (“trauma”) caused type of force face opined that some events, Given the witness bleeding and discoloration. such was concerned that did recall sudden, on bleeding. day, that all of a one crying “Simply (a ], February, Sunday) [appel- 5th day, [of this N.T. changes noticed in the face.” 29. lant] [child’s] waited Despite “changes” appellant, observed she 7th) (until days to secure a doctor’s February appointment two It Dr. Unice’s that the victim February for 8th. belief attention, room or emergency “needed either urgent inflict the amount of trauma needed to doctor’s office” because a nasal fracture could have injury caused brain. Id. at Therefore, it was the expert’s opinion “potentially” endangered injuries the child’s welfare was because his facial very problems.” “could have led to serious Id. at 33. and, jury found the appellant guilty, on appeal, consideration, raises for three issues our the first
two of which question sufficiency of the evidence in that prosecution failed show that she violated 18 “knowingly” § Pa.C.S.A. 4304 1.
To establish a violation of Section 4304 requires proof that:
1) the accused child; is aware to protect the his/her 2) the accused is aware that the child inis circumstances that could threaten the physical or psychological welfare; and
3) the accused has either failed act or has taken action so lame or meager that such reasonably actions cannot be expected to protect the child’s welfare. Cardwell,
Commonwealth v. 38, 311, 357 Pa.Super. 515 A.2d (1986). 315 If the Commonwealth fails to prove any one of elements, these there is insufficient evidence to sustain a conviction for Miller, child endangerment. Commonwealth v. 33, 411 (1992). Pa.Super. 600 A.2d 990 It appel- is the position lant’s that the prosecution failed to establish the second and prongs third of the elements set forth above prove her guilt. Cardwell, begin our review with supra, where this Court
held that the specific intent element of Section 4304 was not negated when the appellant allowed her stay minor-child to the same household with her for abuser/stepfather ten months Also, after learning of the abuse. writing two to the letters stepfather tolerated, such behavior would no longer be 1. Section 4304 reads: parent, guardian, A person supervising or other the welfare of a years age child under 18 of commits a misdemeanor of the second degree knowingly endangers if he violating the welfare of the child care, duty protection support. a of or added). (Emphasis §
18 Pa.C.S.A. 4304 moving to another school and for the child’s transfer applying home fell clothing grandmother’s of the child’s some to care for and appellant’s duty of satisfying short the child. actions, “something,” were so feeble appellant’s albeit negate the intent element needed to
as to be ineffectual Court also violation Section 4304. Cardwell establish added: § cannot required by be performance
The affirmative all showing preventing toward simply by any step met harm, will ineffectual. An act which incomplete however one which negate necessarily provide intent is not will However, with the person charged successful outcome. reasonably steps to take that are required care is Otherwise, meaning calculated to achieve success. “duty of care” is.eviscerated. Hence, this Court ruled Pa.Super. at 515 A.2d at was sufficient to show that evidence endangered her child. “knowingly” Miller, However, a conviction supra, this Court reversed discharged a child for the welfare of on that the evidence was insufficient the basis twenty- appellant “knowingly” allowed her establish that sleep child to unattended while she two-month-old socializing strength of the father’s untrue father went would watched a tenant remark building. apartment *4 returned, building had apartment appellant
When and died of smoke inhalation and burns the child burned the child for space placed heater near caused defective appellant found that the actions of the warmth. This Court to intent element of Section 4304. prove were insufficient so, doing In we wrote: sufficient difficulty finding have in that the evidence is undisput- tripartite test. While it is satisfy
to the Cardwell child, her that was aware of her ed cannot a matter of law that she was aware that we find as
163 in circumstances that threatened her child placed she had or that her welfare psychological physical babysitting arrangements alleged failure to check on the unreasonable under Cardwell. appellant’s court has based appear It would that the trial § on the fact under 4304 not culpability alone, rather that she should left her child but knowingly gullible father]. not have been so as to believe Undeni- [the may poor judgment have exercised ably, appellant of reckless or guilty in and she is night question, perhaps in connection with her son’s death. How- negligent conduct § ever, under finding guilt this is not sufficient for a in If in fact that her son was the care of believed another, him unattended and knowingly she did not leave adjudged and her conduct cannot be thereby endangered, criminal. community approach a common sense of the
Utilizing statute, intent element of the we find interpret specific times can make implicit recognition parents their children judgment mistakes However, harmed as a result. for such mistakes rise knowingly of criminal must culpability, parents the level of the allow their children to be at risk with awareness their or of their failure to potential consequences of actions act.
411
On “knowingly” endangered they to insufficient establish banc, Court, found such sitting This en of the child. welfare meritless; to-wit: argument designed pe- comprehensive provision 4304 is a Section duty a knowingly legal breach nalize those who to their care. children who are entrusted well-being of Cardwell, 38, 515 A.2d Pa.Super. v. 357 See Commonwealth noted in (1986); Taylor. v. As we 311 Commonwealth Taylor: has said that Sec Supreme Court [Pennsylvania] of range to cover a wide broadly drawn
tion 4304 was security welfare and safeguard in order to conduct meaning by reference given It is to be children. protective community of the and the broad common sense v. it was enacted. Commonwealth for which purpose (1976). 770, Mack, 613, 618, A.2d 772 467 Pa. 359 Pa.Super. [420] at 426-27, 471 A.2d [1228] at 1231 [(1984)]. physical, to advance the a responsibility
Parents have children, and extreme mental, health of their and emotional adversely affect a child omissions which grave acts or of the statute. scope come within the
* * * *
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contend that
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Ogin, to
Here, expert testified the Commonwealth’s adversely did not child for examination delay producing the fact, “If question you In response the child. affect February February on 5th [instead had seen [the child] 8th], was answered your would treatment have been the same” essentially have by the doctor: “The treatment would been Furthermore, making after an N.T. 36. point.” same at “significant” initial the child had sustained observation bridge of the nasal injuries by swelling facial manifested the child was examined eyes, discoloration under both “overall, fairly was doctor and found his condition otherwise Id. at 24. good.” having her delay “knew” that her appellant
Whether the child to a threat of more serious exposed son examined harm, 8th read that the report February the doctor’s dated to her any injury not aware of that had occurred appellant was 27, The worker who interviewed son. Id. CYS not know how the child parties appellant testified that the did hurt and the child was examined because friend his nose attention. Id. at the mother told her to seek medical 60-61. (Lillian Pruskow- specifically,
More the child’s second cousin ski) (a February Monday) on 6th phoned by was fallen, eyes and informed that the child had his were black Ms. Pruskowski advised the blue and his nose was swollen. which occurred on appointment, to make a doctor’s Also, February attending physician 7th. Id. at 65. when the an child’s condition constituted “emer- was asked whether the situation,” Id. at 41. responded: necessarily.”2 he “Not gency relevant, complete exchange the assistant district attor- 2. between ney physician following: and the consisted of the of a nasal fact, x-ray presence it to detect the In took doctor saw no Id. at 36. x-ray, Even with the fracture3. fracture. splint need to administer medication 4304 came via the of intent to violate Section The evidence In and second cousin. both physician of the child’s testimony instances, said she did not know how after injured, sought medical treatment became but And, the treatment would with Ms. Pruskowski. speaking brought child to the office no different had the been have been 5th, (February Sunday) versus day of the event 8th. Wednesday, February scheduled visit on child’s to evaluate the professional fact that a medical was able prompt conclude that the failure to obtain injuries the child’s welfare4 “potentially” endangered attention medical *7 “knowledge” had illuminating not on whether is the child at placed in medical treatment delay seeking conse- potential or that the was aware of the risk require assign- thusly of her actions. To hold would quences knowledge skill of a medical parent each with the ing inju- in of care associated with childhood matters professional (no injured child is matter how Every parent ries. whose minor) law, seek, penalty under of immediate would have (as dispel by treatment stated Commonwealth’s medical welfare, to a child’s even “potential” the mere threat expert) Q. your professional opinion, medical was this an emer- Sure. In Emergency gency called for Room treatment rather situation that checkup appointment? than normal attention, say urgent necessarily. it needed either in A. Not I would office, Emergency seen rather Room or a doctor’s he could be an quickly. added). (Emphasis N.T. 41 evidence a fracture. The 3. observation of the nose did not Visual grossly at a when it’s physician that: "You can’t look nose testified or unless there is a devia- and know whether it's broken not swollen ("deviation”) by the was not exhibited tion.” N.T. 36. This condition Id. at 36. minor-child. damage. N.T. "risk” attendant to the nasal fracture was brain 4. The However, expert only testify could that there the Commonwealth's fracture, injury a facial but “potential” for head associated with was a Thus, signs was the case here. we there were no that this “knowledge” appellant with attribute the of that could is unaware of the course events parent when injury in motion sustained. be set everytime a judgment anytime must not rush to medically is not attended to injury minor suffers a minor-child immediately. Ideally, every injury each and of unattended, alacrity with which one acts go should not but intervention, of an diagnosis to seek medical abatement decide, in for the injury parent allowing is the first instance parent guilty the courts when a is for review found violating Section 4804. Miller,
Accordingly, precepts consistent with the recited Cardwell, we conclude that the evidence is not Ogin sufficient to beyond establish reasonable doubt three-day delay seeking “knew” her medical at- risk, tention for the minor-child created a with awareness (“serious potential consequences injuries”), head welfare. Judgment of Appellant discharged. sentence reversed.5 ELLIOTT, FORD J. files a concurring statement which POPOVICH, joins. J. ELLIOTT, Judge, concurring.
FORD I with the agree majority that the Commonwealth failed to proving sustain its burden of appellant endangered the welfare of her child by prompt her failure to seek medical attention. notes, majority As the aptly clearly element scienter is *8 disposition appellant's sufficiency dispenses 5. Our of the issue with the claim, appellant's remaining need to address the which consists of three 1) assigning granting sub-issues error: to the trial court in not prosecution appellant mistrial when a for witness the testified that the just got[ten was "worrisome when it came to CYS because she had her back”; 2) allowing prosecution child] other Jamie in the to read in her closing argument appellant’s inconsistent remarks contained in the (of police having having eyes); statement the victim and not blood shot 3) allowing prosecution argue jury and in the to to the that the appellant proof. had the burden of respond appellant's complaint, we Were to to the we would find that opinion pages through represents adequate the trial court’s at reply appellant's adopt finding claims and it as our own in them meritless. however, concern, I lacking. separately, express my write to case, vigilant in this court remain based record the child. protection to ensure the of this filed the original complaint by Commonwealth indicates was accused of the appellant initially child, protect of her child to and to failing failing (R. 1.) charge the child. seek medical attention for at was, however, out, to child crossed failing protect failure to eventually charged only was with seek appellant 2.) (R. Nevertheless, attention. at the affidavit of medical to indicates that told the probable cause arrest CYS worker, officer, and the police child’s second cousin that (R. boyfriend hit the child’s face with a stick. at appellant’s 1.) Testimony from the second cousin also indicates that did not to send the with want child school black in eyes Monday following question and blue the incident (Notes of because feared CYS involvement. testi- 60.) at mony, 11/1/95
The record indicates that filed police charges further in against appellant’s boyfriend connection with the incident (Id. 80). jury against at A in the case question. sworn No.1995-637, Boyer, Commonwealth v. Eric boyfriend however, County; jury Crawford was dismissed prossed case nolle due to the of a unavailability witness. that, It clear from foregoing is while the Commonwealth prosecute lacked evidence to for apparently failing boyfriend, her her enough child from there is child, of record to that this as well as suspect evidence others mother, I with continue to at risk. living write therefore, strongly separately, suggest Family County of the Division Crawford Court of Common Pleas child, charge remain attentive the welfare of this and to monitor closely direct Children and Youth Services to case. family this
POPOVICH, J., joins concurring this statement.