Com. v. Pahel

• Citation: 689 A.2d 963,456 Pa.Super. 159
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Tammy Sue PAHEL, Appellant.
• Decision Date: 24 February 1997
• Court: Superior Court of Pennsylvania

Page 963

689 A.2d 963

456 Pa.Super. 159

COMMONWEALTH of Pennsylvania, Appellee v. Tammy Sue PAHEL, Appellant.

Superior Court of Pennsylvania.

Argued Oct. 10, 1996.

Filed Feb. 24, 1997.

Bruce A. Barrett, Assistant Public Defender, Meadville, for appellant.

Debra S. Higgins, Assistant District Attorney, Meadville, for Commonwealth, appellee.

Before POPOVICH, FORD ELLIOTT and HESTER, JJ.

POPOVICH, Judge:

The appellant, Tammy Sue Pahel, appeals the judgment of sentence (3-24 months less 1 day imprisonment) for endangering the welfare of her child. We reverse.

The facts, viewed in a light most favorable to the verdict-winner and drawing all reasonable inferences therefrom, reveal that on the morning of February 8, 1995, Dr. Ronald M. Unice examined 5-year-old Timothy Pahel. The doctor noticed "significant facial injuries," which x-rays revealed were nasal fractures manifested by marked swelling on the nasal bridge, with discoloration of the nose and marked discoloration under both eyes. Consistent with the injuries, the doctor opined that some type of force ("trauma") to the face caused bleeding and discoloration. Given such events, the witness was concerned that the appellant did not recall the child crying or bleeding. "Simply that all of a sudden, one day, on this day, the 5th [of February, 1995 (a Sunday) ], the [appellant] noticed changes in the [child's] face." N.T. 29.

Despite the "changes" observed by the appellant, she waited two days (until February 7th) to secure a doctor's appointment for February 8th. It was Dr. Unice's belief that the victim "needed urgent attention, either in the emergency room or a doctor's office" because the amount of trauma needed to inflict a nasal fracture could have caused injury to the brain. Id. at 35. Therefore, it was the expert's opinion that "potentially" the child's welfare was endangered because his facial injuries "could have led to very serious problems." Id. at 33.

The jury found the appellant guilty, and, on appeal, the appellant raises three issues for our consideration, the first two of which question the sufficiency of the evidence in that the prosecution failed to show that she "knowingly" violated 18 Pa.C.S.A. § 4304 ¹.

To establish a violation of Section 4304 requires proof that:

1) the accused is aware of his/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. Cardwell, 357 Pa.Super. 38, 515 A.2d 311, 315 (1986). If the Commonwealth fails to prove any one of these elements, there is insufficient evidence to sustain a conviction for child endangerment. Commonwealth v. Miller, 411 Pa.Super. 33, 600 A.2d 988, 990 (1992). It is the appellant's position that the prosecution failed to establish the second and third prongs of the elements set forth above to prove her guilt.

We begin our review with Cardwell, supra, where this Court held that the specific intent element of Section 4304 was not negated when the appellant allowed her minor-child to stay in the same household with her abuser/stepfather for ten months after learning of the abuse. Also, writing two letters to the stepfather that such behavior would no longer be tolerated, applying for the child's transfer to another school and moving some of the child's clothing to the grandmother's home fell short of satisfying the appellant's duty to care for and protect the child.

The appellant's actions, albeit "something," were so feeble as to be ineffectual to negate the intent element needed to establish a violation of Section 4304. The Cardwell Court also added:

The affirmative performance required by § 4304 cannot be met simply by showing any step at all toward preventing harm, however incomplete or ineffectual. An act which will negate intent is not necessarily one which will provide a successful outcome. However, the person charged with the duty of care is required to take steps that are reasonably calculated to achieve success. Otherwise, the meaning of the "duty of care" is eviscerated.

357 Pa.Super. at 46, 515 A.2d at 315. Hence, this Court ruled that the evidence was sufficient to show that the appellant "knowingly" endangered her child.

However, in Miller, supra, this Court reversed a conviction for endangering the welfare of a child and discharged the appellant on the basis that the evidence was insufficient to establish that the appellant "knowingly" allowed her twenty-two-month-old child to sleep unattended while she and the father went socializing on the strength of the father's untrue remark that the child would be watched by a tenant in the apartment building.

When the appellant returned, the apartment building had burned and the child died of smoke inhalation and burns caused by a defective space heater placed near the child for warmth. This Court found that the actions of the appellant were insufficient to prove the intent element of Section 4304. In doing so, we wrote:

We have difficulty in finding that the evidence is sufficient to satisfy the Cardwell tripartite test. While it is undisputed that appellant was aware of her duty to protect her child, we cannot find as a matter of law that she was aware that she had placed her child in circumstances that threatened the child's physical or psychological welfare or that her failure to check on the alleged babysitting arrangements was unreasonable underCardwell.

* * * *

It would appear that the trial court has based appellant's culpability under § 4304 not on the fact that appellant knowingly left her child alone, but rather that she should not have been so gullible as to believe [the father]. Undeniably, appellant may have exercised poor judgment on the night in question, and perhaps she is guilty of reckless or negligent conduct in connection with her son's death. However, this is not sufficient for a finding of guilt under § 4304. If appellant in fact believed that her son was in the care of another, she did not knowingly leave him unattended and thereby endangered, and her conduct cannot be adjudged criminal.

* * * *

Utilizing a common sense of the community approach to interpret the specific intent element of the statute, we find an implicit recognition that parents at times can make mistakes in judgment and that their children may be harmed as a result. However, for such mistakes to rise to the level of criminal culpability, parents must knowingly allow their children to be at risk with awareness of the potential consequences of their actions or of their failure to act.

411 Pa.Super. at 41, 600 A.2d at 991-92.

Finally, in Commonwealth v. Ogin, 373 Pa.Super. 116, 540 A.2d 549 (1988), the defendants/parents were convicted of, inter alia, endangering the welfare of their seventeen-month-old daughter by dragging and throwing the child against the wall of a building, twice striking the minor with a back-hand and pushing hot food in the child's face.

On appeal, the defendants alleged that the evidence was insufficient to establish that they "knowingly" endangered the welfare of the child. This Court, sitting en banc, found such argument to be meritless; to-wit:

Section 4304 is a comprehensive provision designed to penalize those who knowingly breach a legal duty to protect the well-being of children who are entrusted to their care. See Commonwealth v. Cardwell, 357 Pa.Super. 38, 515 A.2d 311 (1986); Commonwealth v. Taylor. As we noted in Taylor:

The [Pennsylvania] Supreme Court has said that Section 4304 was drawn broadly to cover a wide range of conduct in order to safeguard the welfare and security of children. It is to be given meaning by reference to the common sense of the community and the broad protective purpose for which it was enacted. Commonwealth v. Mack, 467 Pa. 613, 618, 359 A.2d 770, 772 (1976).

324 Pa.Super. at 426-27, 471 A.2d [1228] at 1231 [(1984)].

Parents have a responsibility to advance the physical, mental, and emotional health of their children, and extreme acts or grave omissions which adversely affect a child may come within the scope of the statute.

* * * *

Appellants also contend that by failing to provide a duty of protection, they did not knowingly endanger [their child's] welfare as required by section 4304.

* * * *

The jury could have credited the Commonwealth's version of the events, and could have believed so much of the defense testimony as indicated that appellants knew that the conduct in question posed a threat to a child's welfare. Thus, the elements of the crime of endangering the welfare of children were established.

373 Pa.Super. at 124, 540 A.2d at 553-54. Under Ogin, to come within the scope of Section 4304, a parent may engage in "extreme acts or grave omissions which adversely affect a child," or, despite not sustaining serious injury, the parent "knew that the conduct in question posed a threat to a child's welfare."

Here, the Commonwealth's expert testified that the delay in producing the child for examination did not adversely affect the child. In fact, in response to the question "If you had seen [the child] on February 5th [instead of February 8th], would your treatment have been the same" was answered by the doctor: "The treatment would have been essentially the same at that point." N.T. 36. Furthermore, after making an initial observation that the child had sustained "significant" facial injuries manifested by swelling of the nasal bridge and discoloration under both eyes, the child was examined by the doctor and found "overall, his condition otherwise was fairly good." Id. at 24.

Whether the appellant "knew" that her delay in having her son examined exposed the child to a threat of more serious harm, the doctor's report dated February 8th read that the appellant was not aware...