Com. v. Martir

• Citation: 712 A.2d 327
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Luz Zeneida MARTIR, Appellant.
• Decision Date: 13 May 1998
• Court: Pennsylvania Superior Court

Page 327

712 A.2d 327

COMMONWEALTH of Pennsylvania, Appellee, v. Luz Zeneida MARTIR, Appellant.

Superior Court of Pennsylvania.

Submitted Feb. 9, 1998.

Filed May 13, 1998.

Charles D. Younger, Assistant Public Defender, Reading, for appellant.

Rebecca L. Bell, Assistant District Attorney, Reading, for Com., appellee.

Before CAVANAUGH, POPOVICH, and BECK, JJ.

POPOVICH, Judge:

This is an appeal from the judgment of sentence entered in the Court of Common Pleas of Berks County, following appellant's conviction on charges of recklessly endangering another person, 18 Pa.C.S.A. § 2705, and endangering the welfare of children, 18 Pa.C.S.A. § 4304. Herein, appellant asserts that the lower court erred when it determined that her sentence for endangering the welfare of children did not merge into her sentence for reckless endangerment. Upon review, we affirm.

Herein, appellant was caring for a twenty-two month old child. The child sustained second and third degree burns. The burns occurred when she threw hot water out the door of the residence, and the water struck the child. Appellant then took the child to immerse him in cold water, but turned-on the wrong faucet and actually immersed the child in scalding hot water.

The question of whether convictions merge for the purposes of sentencing is a challenge to the legality of the sentence imposed by the lower court, and discretionary review is not appropriate. Commonwealth v. Rodriquez, 449 Pa.Super. 319, 673 A.2d 962, 967 (1996). In Commonwealth v. Silay, 694 A.2d 1109, 1110 (Pa.Super.1997), we summarized the merger doctrine as follows:

[T]he test for determining whether crimes merge for sentencing purposes was clarified by our supreme court in Commonwealth v. Anderson, 538 Pa. 574, 650 A.2d 20 (1994). There, the court held "that in all criminal cases, the same facts may support multiple convictions and separate sentences for each conviction except in cases where the offenses are greater and lesser included offenses." Commonwealth v. Dobbs, 452 Pa.Super. 488, 682 A.2d 388, 390 (1996) (quoting Anderson, 650 A.2d at 23 (citations omitted)). "The operative inquiry is whether the crimes involved are greater and lesser included offenses, i.e., whether the elements of the lesser included offense are necessary subcomponents but not a sufficient component of elements of another crime." Anderson, 650 A.2d at 23 (citation omitted).

Thus, as stated in Anderson, 650 A.2d at 24: "Our inquiry, ... is whether the elements of the lesser crime are all included within the elements of the greater crime, and the greater offense includes at least one additional element which is different, in which case the sentences merge, or whether both crimes require proof of at least one element which the other does not, in which case the sentences do not merge."

Appellant was convicted of recklessly endangering another person pursuant to 18 Pa.C.S.A. § 2705, which provides: "A person commits a misdemeanor of the second degree if he recklessly engages in conduct which places or may place another person in danger of death or serious bodily injury." The mens rea required for this crime is a conscious disregard of a known risk of death or great bodily harm to another person. Commonwealth v. Cottam, 420 Pa.Super. 311, 616 A.2d 988, 1005 (1992), appeal denied, 535 Pa. 673, 636 A.2d 632 (1993).

Appellant was also convicted of endangering the welfare of children pursuant to 18 Pa.C.S.A. § 4304, which provides: "A parent, guardian or other person supervising the welfare of a child under 18 years of age commits a misdemeanor of the second degree if he knowingly endangers the welfare of the child by violating a duty of care, protection or support." The mens rea required for this crime is a knowing violation of the accused's duty of care to the minor-victim. Cottam, 616 A.2d at 1005. More precisely, the Commonwealth must prove that: 1) the accused is aware of his or her duty to protect the child; 2) the accused is aware that the child is in circumstances that could threaten the child's physical or psychological welfare; and 3) the accused has either failed to act or has taken action so lame or meager that such actions cannot reasonably be expected to protect the child's welfare. Commonwealth v. Pahel, 456 Pa.Super. 159, 689 A.2d 963, 964 (1997), citing Commonwealth v. Cardwell, 357 Pa.Super. 38, 515 A.2d 311, 315 (1986).

As this court noted in Commonwealth v. Tipton, 396 Pa.Super. 402, 578 A.2d 964, 965-966 (1990), it remains a "challenging endeavor" to determine whether merger is proper, and, despite recent case law, the question of whether one crime is a lesser include offense of another remains "an endeavor of a mystifying nature." Such is the present case. However, upon review, we agree with the lower court that reckless endangerment and endangering the welfare of children do not have a greater-lesser-included offense relationship.

Appellant's argument must fail because every element of endangering the welfare of children is not subsumed in the elements of reckless endangerment. First, and most importantly, a conviction for endangering the welfare of children requires proof that the accused acted "knowingly," i.e., that the accused not only knew that he has a duty to protect the child but also knew that the child was placed in circumstances that could threaten the child's welfare. A conviction for reckless endangerment obviously requires proof that the accused acted only recklessly. Thus, a person could never be convicted of endangering the welfare of a child based upon reckless conduct alone. Accordingly, the question of "whether the elements of the lesser crime are all included within the elements of the greater crime" is answered in the negative. See Anderson, 650 A.2d at 24 (test of whether an offense is a lesser-included offense of another). In other words, knowing behavior is not a "necessary subcomponent" of reckless behavior, and merger is not mandated. See Anderson, 650 A.2d at 23.

Second, a conviction for endangering the welfare of a child requires proof that "the accused is aware of his or her duty to protect the child." Pahel, 689 A.2d at 964. Reckless endangerment does not require the Commonwealth to prove that the accused has any special duty to protect his victim from harm. Once again, a conviction for the crime of endangering the welfare of a child requires proof of an element, which is not subsumed within any element of reckless endangerment. See Anderson, 650 A.2d at 23-24, quoting, with approval, Williams v. State, 323 Md. 312, 593 A.2d 671 (1991) (in determining whether one offense is a lesser-included offense of another, we consider the required evidence that is "minimally necessary" to secure a conviction for each offense; if each offense requires proof of a fact which the other does not, based upon the minimal required evidence, then the offenses do not merge).

Third, endangering the welfare of a child requires proof that the victim is "a child under the age of 18 years of age." 18 Pa.C.S.A. § 4304. Reckless endangerment does not require proof of the victim's age. Cf. Commonwealth v. Frank, 433 Pa.Super. 246, 640 A.2d 904, 908 (1994), appeal denied, 538 Pa. 665, 649 A.2d 668 (1994) (under the particular circumstances of this case, rape, 18 Pa.C.S.A. § 3121, and involuntary deviate sexual intercourse, 18 P.C.S.A. § 3123(5), do not merge; involuntary deviate sexual intercourse, as charged, required proof of a fact which rape did not, i.e.,...