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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
BOBBY YOUNG
Appellant No. 2556 EDA 2015
Appeal from the Judgment of Sentence July 28, 2015
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0004642-2014
BEFORE: BOWES, J., MOULTON, J., and STEVENS, P.J.E.*
MEMORANDUM BY MOULTON, J.: FILED JANUARY 19, 2017
Bobby Young appeals from the July 28, 2015 judgment of sentence
entered in the Delaware County Court of Common Pleas following his
convictions after a bench trial for recklessly endangering another person and
endangering the welfare of children.1 We affirm.
The well-reasoned opinion of the Honorable Gregory H. Mallon set
forth a detailed factual and procedural history underlying this appeal, which
we adopt and incorporate herein. See Trial Ct. Op., 3/2/16, at 1-10
(“1925(a) Op.”).
Young raises the following issues on appeal:
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*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S. §§ 2705 and 4304(a)(1), respectively.
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1. WHETHER THE COURT ERRED IN DENYING THE DEFENSE
MOTIONS FOR ARREST OF JUDGMENT RAISED ORALLY AT
SENTENCING SINCE THE VERDICTS OF GUILTY ON THE
CHARGES OF RECKLESSLY ENDANGERING ANOTHER
PERSON AND ENDANGERING THE WELFARE OF CHILDREN
WERE AGAINST THE WEIGHT OF EVIDENCE THAT TENDED
TO SHOW THAT MR. YOUNG WAS NOT NEGLIGENT IN THE
MANNER IN WHICH HE SOUGHT MEDICAL TREATMENT
FOR THE INFANT VICTIM.
2. WHETHER THE EVIDENCE WAS INSUFFICIENT TO
ESTABLISH GUILT BEYOND REASONABLE DOUBT ON
EITHER CHARGE SINCE THE COMMONWEALTH FAILED TO
ESTABLISH ALL THE ELEMENTS OF RECKLESSLY
ENDANGERING ANOTHER PERSON AND ENDANGERING
THE WELFARE OF CHILDREN, SPECIFICALLY WHERE THE
RECORD WHOLLY REFUTES ANY CONCLUSION THAT MR.
YOUNG KNOWINGLY, INTENTIONALLY OR RECKLESSLY
FAILED TO SEEK PROPER MEDICAL TREATMENT FOR THE
INFANT VICTIM.
3. WHETHER THE SENTENCING SCHEME IMPOSED IS
ILLEGAL WHERE THE CHARGE OF RECKLESSLY
ENDANGERING ANOTHER PERSON AND ENDANGERING
THE WELFARE OF CHILDREN SHOULD HAVE MERGED FOR
SENTENCING PURPOSES UNDER THE CIRCUMSTANCES OF
THIS CASE.
Young’s Br. at 7-8.
Young first argues that the trial court erred by not granting him an
arrest of judgment because the weight of the evidence “slanted
overwhelmingly in favor of acquittal on all counts.” Id. at 23. According to
Young, the record shows that the victim went into distress while in the care
of Taniesha Smith (“Mother”) and Young “show[ed] his propensity for
wanting to do the right thing” by scheduling an appointment with the doctor.
Id. at 20-21. Young’s weight claim is based in large part on two contentions
about the trial. First, he argues that while the charges in the criminal
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information and the prosecution’s asserted theory of the case were based on
the allegation that Young caused violent harm to the child on or about
December 14, 2013, the trial court found Young guilty on a different theory
– that Young failed in his obligation to seek medical care for the victim
despite evidence of the victim’s serious injuries and failure to thrive over the
course of months. Id. at 21-22.2 Second, Young complains that with
respect to both the charges in the information and the prosecution’s
principal theory of the case – that the victim suffered an acute injury on or
about December 14 – the evidence at trial strongly suggested that it was
Mother rather than Father who was at fault. Id. at 22-23.
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2
In his brief, Young argues that a “miscarriage of justice” occurred
because the allegations in the criminal information and the Commonwealth’s
opening remarks at trial focused on an “acute traumatic injury on or about
the weekend of December 14th/15th, 2013.” Young’s Br. at 21-22. The
Commonwealth responds that Young waived this argument by failing to raise
it before the trial court or in his Pennsylvania Rule of Appellate Procedure
1925(b) statement. Cmwlth.’s Br. at 15. We agree with the
Commonwealth.
While we understand that Young may not have known before trial that
the Commonwealth would introduce the malnourishment and “failure to
thrive” evidence, Young did not object to this evidence when presented by
the Commonwealth, move for relief based on the Commonwealth’s alleged
deviation from the criminal information, or include this issue in his Rule 1925
Statement. Indeed, Young’s counsel devoted a substantial portion of this
closing statement to arguing that the Commonwealth had failed to prove
facts sufficient to support this theory of the case. N.T. Closing, 5/1/15, at
17-19, 23-27. Therefore, Young has waived this issue. See Pa.R.A.P.
1925(b)(4)(vii); Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998)
(“Any issues not raised in a Pa.R.A.P. 1925(b) statement will be deemed
waived.”).
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Preliminarily, we must determine whether Young preserved his weight
of the evidence claim for review, as Young’s motion for arrest of judgment
before sentencing was a motion for extraordinary relief pursuant to
Pennsylvania Rule of Criminal Procedure 704.3 The comment to Rule 704
specifically states that “the making of a motion for extraordinary relief does
not, of itself, preserve any issue raised in the motion, nor does the judge’s
denial of the motion preserve any issue.” Pa.R.Crim.P. 704, cmt. This Court
has held that motions for extraordinary relief are not “a ‘substitute vehicle’
for raising a matter that should be raised in a post-sentence motion.”
Commonwealth v. Grohowski, 980 A.2d 113, 115-16 (Pa.Super. 2009).
We conclude that Young waived his weight of the evidence claim.
Pennsylvania Rule of Criminal Procedure 607 sets forth the requirements for
preserving a weight of the evidence challenge:
(A) A claim that the verdict was against the weight of the
evidence shall be raised with the trial judge in a motion for
a new trial:
(1) orally, on the record, at any time before sentencing;
(2) by written motion at any time before sentencing; or
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3
In its opinion, the trial court notes that Young’s oral motion for arrest
of judgment appeared to combine a motion for an arrest of judgment based
upon sufficiency of the evidence and a motion for a new trial based upon the
weight of the evidence under Pennsylvania Rules of Criminal Procedure 606
and 607. See 1925(a) Op. at 11. The record shows, however, that Young
orally moved for extraordinary relief – in the form of an arrest of judgment –
pursuant to Pennsylvania Rule of Criminal Procedure 704(b). N.T.
Sentencing, 7/28/15, at 13.
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(3) in a post-sentence motion.
Pa. R. Crim. P. 607(A). Here, the record shows that Young did not file a
written motion, before or after sentencing, challenging the weight of the
evidence. Further, Young’s oral motion for extraordinary relief did not
challenge the weight of the evidence.4 Had Young wanted to challenge the
weight of the evidence, he could and should have done so through a
separate oral motion at sentencing or by written motion either before or
after sentencing. In these circumstances, we conclude that Young did not
preserve his weight of the evidence challenge and therefore waived this
claim.5
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4
Rather, in support of the motion, Young introduced new evidence.
These new facts could not be considered when determining whether the
verdict was against the weight of the evidence.
The trial court also considered the motion in terms of sufficiency of the
evidence, rather than the weight of the evidence. The trial court explained
its reasoning for denying the motion:
I’m denying your Motion for Extraordinary Relief based on,
you know, the reasons I’ve said, that the records are
replete with evidence that this child was -- there was a
breach of a duty of care and on the Recklessly
Endangering [Another Person] there was reckless,
sufficient reckless[ness] displayed on the part of [Young.]
He understands I’m not putting the blame on him for an
intentional injury. I found him not guilty of that one.
There was not enough evidence.
N.T. Sentencing, 7/28/15, at 30.
5
Even had the trial court addressed Young’s weight of the evidence
claim, which it did not, Young’s waiver would still stand. See
(Footnote Continued Next Page)
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Young next argues that the Commonwealth presented insufficient
evidence to convict him. Young once again contends that the victim was not
in his care when the injuries manifested and “[t]here is not a scintilla of
proof from any witness or from the medical records that would allow any fact
finder to reasonably conclude that [Young] abused his child during the time
frame at issue.” Young’s Br. at 26-27.
This Court’s standard for reviewing sufficiency of the evidence claims is
as follows:
We must determine whether the evidence admitted at trial,
and all reasonable inferences drawn therefrom, when
viewed in a light most favorable to the Commonwealth as
verdict winner, support the conviction beyond a reasonable
doubt. Where there is sufficient evidence to enable the
trier of fact to find every element of the crime has been
established beyond a reasonable doubt, the sufficiency of
the evidence claim must fail.
The evidence established at trial need not preclude every
possibility of innocence and the fact-finder is free to
believe all, part, or none of the evidence presented. It is
not within the province of this Court to re-weigh the
evidence and substitute our judgment for that of the fact-
finder. The Commonwealth’s burden may be met by
wholly circumstantial evidence and any doubt about the
defendant's guilt is to be resolved by the fact[-]finder
unless the evidence is so weak and inconclusive that, as a
matter of law, no probability of fact can be drawn from the
combined circumstances.
_______________________
(Footnote Continued)
Commonwealth v. Lofton, 57 A.3d 1270, 1273 (Pa.Super. 2012) (“Failure
to properly preserve [a weight of the evidence] claim will result in waiver,
even if the trial court addresses the issue in its opinion.”)
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Commonwealth v. Rodriguez, 141 A.3d 523, 525 (Pa.Super. 2016)
(quoting Commonwealth v. Tarrach, 42 A.3d 342, 345 (Pa.Super. 2012)).
In its opinion, the trial court set forth the relevant elements of the
offenses, addressed Young’s claims, and properly determined that the
evidence was sufficient to maintain the convictions. See 1925(a) Op. at 13-
19. The evidence presented by the Commonwealth showed failures by
Young, over a period of months, to take any action with respect to the
victim’s welfare and that these failures recklessly subjected the victim to
serious bodily injury. After reviewing the briefs, the record, and the trial
court’s opinion, we affirm based on the trial court’s reasoning. See id.
Finally, Young argues that his convictions should have merged for
sentencing purposes. According to Young, the trial court’s citation of
Commonwealth v. Martir, 712 A.2d 327 (Pa.Super. 1998), was misguided
because the appellant in Martir committed each crime by separate acts,
whereas here “the elements of recklessly endangering another person are
completely subsumed within the duty requirement of [endangering welfare
of children].” Young’s Br. at 33. Young asks this Court to reconsider its
decision in Martir and “find that merger was proper under the facts
presented in this appeal.” Id. Merger is a pure question of law over which
we exercise plenary review. Commonwealth v. Pettersen, 49 A.3d 903,
911 (Pa.Super. 2012).
We conclude that Martir is controlling and affirm the trial court. In its
opinion, the trial court aptly cited Martir for the proposition that
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endangering the welfare of children is neither a lesser-included offense nor a
greater-included offense of recklessly endangering another person. 1925(a)
Op. at 20-21 (citing Martir, 712 A.2d at 329-30). While Martir was decided
before our legislature enacted the statutory merger analysis under 42
Pa.C.S. § 9765,6 the decision analyzed the statutory elements of each
offense as required by the test that section 9765 later codified:
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
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6
Section 9765 provides that “[n]o crimes shall merge for sentencing
purposes unless the crimes arise from a single criminal act and all of the
statutory elements of one offense are included in the statutory elements of
the other offense. Where crimes merge for sentencing purposes, the court
may sentence the defendant only on the higher graded offense.” 42 Pa.C.S.
§ 9765. Under section 9765, courts must:
determine whether offenses are greater and lesser-
included offenses [by] compar[ing] the elements of the
offenses. If the elements of the lesser offense are all
included within the elements of the greater offense and the
greater offense has at least one additional element, which
is different, then the sentences merge. If both crimes
require proof of at least one element that the other does
not, then the sentences do not merge.
Commonwealth v. Nero, 58 A.3d 802, 806 (Pa.Super. 2012) (internal
citations omitted); see also Commonwealth v. Baldwin, 985 A.2d 803,
835 (Pa. 2009) (finding that statutory-element test of section 9765 “focuses
solely on the elements of the offenses for which a criminal defendant has
been convicted”).
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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.
* * *
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. 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.
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.
* * *
Even if we were to consider endangering the welfare of
children as the greater-included offense, it is obvious that
the crimes do not merge. A conviction for reckless
endangerment requires proof of conduct that places or
may place another person in danger of death or serious
bodily injury, while a conviction for endangering the
welfare of children only requires proof of circumstances
that could threaten the child's physical or psychological
welfare. Thus, reckless endangerment requires proof of a
fact that endangering the welfare of children does not. In
other words, the element of conduct which places or may
place a person in danger of death or serious bodily injury
is not subsumed within proof that a child is placed in
circumstance that could threaten the child. Thus, reckless
endangerment is not a lesser-included offense of
endangering the welfare of children, and the crimes do not
merge.
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Martir, 712 A.2d at 329-30 (emphasis in original) (some internal citations
and quotations omitted). We conclude that this analysis is just as apt after
section 9765’s adoption as it was under the pre-section 9765 rubric.7
Further, Young’s argument that Martir is distinguishable because the
appellant in Martir committed two separate criminal acts is unavailing.
Even if Young’s conduct could be considered one criminal act for the
purposes of section 9765, Martir focused on the elements of the crimes in
question and did not address the single-criminal-act requirement of merger.
Our decision in Martir did not turn on the facts of that case.
Judgment of sentence affirmed.
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7
“[B]oth this Court and the Pennsylvania Supreme Court historically
have struggled to articulate and apply the proper test for merger claims.”
Commonwealth v. Raven, 97 A.3d 1244, 1249-50 (Pa.Super.), app.
denied, 105 A.3d 736 (Pa. 2014) (describing history of merger tests in
Pennsylvania). However, despite the changes in merger analysis, all merger
tests (before and after section 9765) have included a comparison of the
statutory elements in the greater- and lesser-included offenses. See, e.g.,
Commonwealth v. Anderson, 650 A.2d 20, 24 (Pa. 1994) (“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.”).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/19/2017
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Circulated 12/19/2016 02:21 PM