Com. v. K.B.

J-S36036-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
K.B. :
:
Appellant : No. 1782 WDA 2019

Appeal from the Judgment of Sentence Entered November 6, 2019
In the Court of Common Pleas of Mercer County Criminal Division at
No(s): CP-43-CR-0000513-2018

BEFORE: OLSON, J., KING, J., and PELLEGRINI, J.*

MEMORANDUM BY PELLEGRINI, J.: FILED SEPTEMBER 15, 2020

K.B.1 appeals from the judgment of sentence imposed in the Court of

Common Pleas of Mercer County (trial court). Specifically, she challenges the

sufficiency of the evidence to support her jury conviction of Endangering the

Welfare of Children (EWOC), 18 Pa.C.S. § 4304(a)(1).2 We affirm.

I.

We take the following factual background and procedural history from

the trial court’s November 6, 2019 opinion and our independent review of the

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* Retired Senior Judge assigned to the Superior Court.

1To protect the minor child’s identity, we have amended the caption and will
use the involved parties’ initials throughout this decision. See I.O.P. 424(A).

2 The jury found K.B. not guilty of Recklessly Endangering Another Person,
(REAP), 18 Pa.C.S. § 2705.
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record. On May 18, 2018, the Commonwealth filed an information charging

K.B. with EWOC and REAP related to her infant child (Child). The case

proceeded to a jury trial on March 19, 2019.

A.

At trial, the Commonwealth presented five witnesses, including Dr.

Jennifer Wolford, who testified as an expert in child abuse pediatrics and

pediatric radiology, and Pennsylvania State Trooper Tyler Craig. K.B. testified

on her own behalf.

1.

Dr. Wolford testified that on August 21, 2017, K.B. brought Child, then

four-months old, to Children’s Hospital due to swelling and redness on her

thigh. (See N.T. Trial, 3/19/19, at 8-9, 15). K.B. advised the hospital staff

that the symptoms had begun the previous day, but that she waited overnight

to see if they would subside before bringing Child for evaluation. (See id. at

14-15).

At Children’s Hospital, x-rays and a medical examination reflected that

Child had multiple injuries, including 22 rib fractures, a broken femur, a

broken tibia, a broken clavicle and bruising on the chest and mid-back. (See

id. at 41-43). The injuries were in various stages of healing, ranging from

the recent acute femur break that was causing the redness and swelling in the

Child’s thigh to some of the rib fractures that were more than 15 days’ old and

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were partially healed. (See id. at 21, 39-40). Child was tiny for her age and

at the very bottom of the weight curve. (See id. at 19).

Because of the injuries’ serious nature and the concern for child abuse

or mistreatment, the matter was referred to Dr. Wolford and to the Division

of Child Advocacy. (See id. at 9, 12-13). Dr. Wolford performed a history

with K.B. and Child’s father, M.D., to determine Child’s medical and social

histories, and for them to provide details about any incidents that might have

caused injury or illness to her. (See id. at 10-11).

In an effort to explain the femur break and rib fractures, K.B. told Dr.

Wolford that three days before Child’s admission, a 70-pound dog had jumped

on her, and that four weeks before admission, Child had fallen from a rocking

chair. (See id. at 15). M.D. was concerned that he might have caused Child’s

rib fractures when he was holding her, but neither K.B. nor M.D. could explain

the bruising to her chest and back. (See id. at 16). Dr. Wolford stated the

incidents described by K.B. would not cause Child’s injuries and that there was

no reasonable accidental trauma event that could account for the fractures.

(See id. at 42). She opined that a femur break in a four-month old infant is

not normal, and that Child’s break went through the bone, which would have

caused her to cry “very significantly” when it occurred. (Id. at 42; see id. at

12, 15, 21). Dr. Wolford’s expert medical opinion was that the bruising on

her back and chest were concerning for possible child abuse, the 22 rib

fractures were “virtually diagnostic on their own of physical child abuse[,]”

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and the leg fractures without explanation provided raised “serious concerns

for abuse.” (Id. at 42; see id. at 17-18, 43). She expressed her fear that

Child could suffer death or serious bodily injury if she remained in the same

environment, characterizing the amount of violence she had suffered as

frightening. (See id. at 42-43, 46).

Dr. Wolford also stated that with these types of injuries, an infant would

show numerous signs and exhibit certain responses, such as excessive

fussiness, lack of eating, small size, swelling in the injury areas, pain during

diaper changes, and excessive sleeping to minimize pain; even routine care

would be difficult. (See id. at 71-72, 75). She opined that the broken tibia

and femur would have resulted in several days of visible swelling. (See id. at

72-73). She testified that because the infant Child is unable to communicate

verbally yet, it is up to the parent to identify any issues, including pain and

injuries, and communicate them to physicians. (See id. at 35). Only if a

parent provides full information will a pediatrician know that there is a need

to look deeper by performing x-rays. (See id. at 36). When asked about the

well-visits with the Child’s pediatrician, Dr. Duffy, on July 20th and August 15th

that K.B. brought Child to, she explained that unless K.B. told the pediatrician

information such as Child was not moving her leg normally, she was fussy or

it was painful to change her, a typical well-visit exam would not have revealed

the injuries. (See id. at 36, 113-14). Because the tibia fracture was weeks

old, it “places it right between those two visits,” so it would have been in a

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state of healing when Child saw the doctor. (Id. at 114). Dr. Wolford was

concerned that Child’s adult caretakers were not ensuring Child’s safety based

on the gravity and extraordinary violence that she endured. (See id. at 113-

14).

2.

Trooper Craig testified that he conducted a voluntary interview with K.B.

and M.D. at Children’s Hospital on August 22, 2017. (See N.T. Trial, 3/20/19,

at 15-16). K.B. discussed possible explanations for the injuries, including the

jumping dog and the rocking chair fall she had related to Dr. Wolford, as well

as an incident in which K.B. dropped Child when she broke her ankle while

carrying Child in a carrier. (See id. at 18-21). K.B. also told Trooper Craig

that “there were times that [M.D.] would become frustrated, that he wouldn’t

be able to deal with the baby.” (Id. at 23). For example, when K.B. was in

the shower, M.D. would leave the crying Child outside the shower until K.B.

could handle her, and she did not know what happened while she was at work,

but she expressed concern “that if [M.D.] did become frustrated and [K.B.]

wasn’t present, that he would have no one to hand off [Child] to.” (Id. at 24;

see id. at 23).

In a second interview with Trooper Craig in October 2017, K.B. said that

she felt foolish that she had not observed that there was a problem with Child

and that there was a disconnect between the infant and M.D. (See id.). She

stated that sometimes M.D. would leave Child unattended while he did another

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task in the house. (See id.). When asked whether she suspected abuse, K.B.

answered that she felt “foolish” and “stupid” for not realizing what was

happening. (Id. at 25). She told the Trooper that she was sometimes

concerned that M.D. was too rough with the Child, such as when he would

toss Child in the air before catching her and when she saw him roughly apply

lotion to her. (See id.). She also saw that Child cried more when M.D. held

her than she did when held by anyone else. (See id.).

3.

K.B. testified that over the first four months of her life, including in the

weeks up to the incident in question, Child saw two pediatricians. (See id. at

72, 81). K.B. explained that she had concerns about Child’s low birth weight,

tiny size and lack of weight gain, and that this was the only concern raised by

the pediatricians. (See id.). As to M.D., K.B. explained that he was Child’s

primary caregiver while she was at work. (See id. at 82). She said that it

would concern her when M.D. would play with the Child by tossing her up in

the air, but she responded, “no,” when asked if she believed M.D. would hurt

Child, and that she did not observe any physical abuse. (See id. at 73, 75-

79).

B.

At the close of the Commonwealth’s case, the trial court denied K.B.’s

oral motion for a directed verdict. After the jury convicted K.B. of one count

of EWOC and found her not guilty of REAP, K.B. moved for a judgment of

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acquittal that the trial court denied. On June 6, 2019, the court sentenced

K.B. to a term of incarceration of not less than three nor more than six months,

plus six months of probation. The court denied her post-sentence motion and

K.B. timely appealed. Both she and the court have complied with Rule 1925.

See Pa.R.A.P. 1925.

II.

On appeal, K.B. challenges the sufficiency of the evidence 3 to support

her conviction of EWOC because the Commonwealth failed to provide evidence

of mens rea to support the conviction. (See K.B.’s Brief, at 11-17). She

maintains that “she was not aware of any circumstances that placed [Child]

in physical or psychological danger[]” and, upon discovering “an issue . . . to

the health of [Child], she brought [her] directly to the hospital to be

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3 In reviewing the sufficiency of the evidence, we consider:

whether the evidence, viewed in the light most favorable to the
Commonwealth as verdict winner, is sufficient to enable a
reasonable jury to find every element of the crime beyond a
reasonable doubt. The entire trial record must be evaluated and
all evidence actually received must be considered, whether or not
the trial court’s rulings thereon were correct. Moreover, the
Commonwealth may sustain its burden of proving every element
of the crime beyond a reasonable doubt by means of wholly
circumstantial evidence. Finally, the trier of fact, while passing
upon the credibility of witnesses and the weight to be afforded the
evidence produced, is free to believe all, part or none of the
evidence.

Commonwealth v. Bryant, 57 A.3d 191, 197 (Pa. Super. 2012) (citations,
quotation marks and brackets omitted).

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examined.” (K.B.’s Brief, at 17); (see id. at 14, 16). K.B. argues that it also

is relevant that she never admitted to either abusing Child or knowing that

M.D. was doing so, while M.D. admitted that he might have unintentionally

injured her and acknowledged that K.B. did not have any knowledge of abuse.

(See id. at 15).

A.

Section 4304(a)(1) of the Crimes Code provides, in relevant part, “a

parent, guardian or other person supervising the welfare of a child under 18

years of age . . . commits [the] offense [of EWOC] if he knowingly endangers

the welfare of the child by violating a duty of care, protection or support.” 18

Pa.C.S. § 4304(a)(1). EWOC is a specific intent offense that requires the

alleged offender to knowingly violate his or her duty of care. See

Commonwealth v. Lynn, 114 A.3d 796, 819 (Pa. 2015). This intent element

requires that the Commonwealth establish:

(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.

Id. (citations omitted). “[I]t is the awareness by the accused that [her]

violation of [her] duty of care, protection and support is ‘practically certain’ to

result in the endangerment to [her child’s] welfare, which is proscribed by the

statute.” Commonwealth v. Wallace, 817 A.2d 485, 492 (Pa. Super. 2002),

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appeal denied, 833 A.2d 143 (Pa. 2003), cert. denied, 541 U.S. 907 (2004)

(citing 18 Pa.C.S. § 302(b)(2)).

B.

K.B. admits that she had a duty to protect Child. (See K.B.’s Brief, at

17). Her argument is that the Commonwealth failed to establish the second

and third prongs and, therefore, the required mens rea. After a thorough

review of the record, we disagree. (See id. at 14-17).

Dr. Wolford provided detailed testimony about the extensive injuries for

which K.B. provided no reasonable explanation and the signs and symptoms

that an infant suffering from such severe trauma would exhibit. She testified

that K.B. either knew or should have been aware of these numerous signs and

responses, and that it was her duty to realize that something was wrong based

on them. She also explained that it was K.B.’s duty to act by communicating

this behavior to the pediatrician, and why the failure to do so meant that the

doctor would not discover the injuries. Furthermore, K.B.’s statements to

Trooper Craig that M.D. would toss Child into the air and roughly apply lotion

to Child, that there was a disconnect between Child and M.D., that M.D.

became frustrated when caring for Child, that he would leave Child unattended

until K.B. could take care of her, and that she felt “foolish” and “stupid” for

not seeing what was going on, support the jury’s finding that K.B. knew or

should have known that she was endangering the welfare of Child when she

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left her alone in M.D.’s care. This evidence was sufficient for a jury to find

that the Commonwealth established EWOC.

Additionally, K.B.’s argument that she never admitted to harming the

Child while M.D. did admit that he might have done so, does not change our

conclusion. There is no requirement that there be an admission to support a

guilty verdict. The Commonwealth can establish its case by purely

circumstantial evidence, and it was for the jury to determine the credibility of

the witnesses. Moreover, the jury found K.B. guilty of EWOC, not the abuse

itself. Hence, the fact that M.D. admitted to abusing the Child does not

absolve her from endangering her welfare.

Based on the foregoing and our independent review, we conclude that

the trial court properly found that the Commonwealth provided sufficient

evidence to support its EWOC claim against K.B. It was for the jury to

determine the credibility of the witnesses and it was free to believe all, some

or none of the evidence and determine the weight to be afforded it. Further,

although there was no direct evidence of K.B.’s knowledge, the

Commonwealth can establish every element of the crime based on wholly

circumstantial evidence. See Bryant, supra at 197. Hence, based on our

standard of review, the jury could reasonably conclude that K.B. was aware

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that the Child was in circumstances that could threaten her physical or

psychological welfare and that she failed to act. K.B.’s issue lacks merit.4

Judgment of sentence affirmed.

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4 Moreover, K.B.’s reliance on Commonwealth v. A.R.C., 150 A.3d 53 (Pa.
Super. 2016), is not legally persuasive. The underlying facts, in large part,
mirror the ones in this case. However, as observed by the trial court, “the
similarity of the[] extensive injuries does not go to the mens rea element and
is not dispositive.” (Trial Court Opinion, 11/05/19, at 5). Importantly, the
Superior Court’s recitation of facts did not reflect that the A.R.C. jury heard
extensive testimony like Dr. Wolford’s and Trooper Craig’s. Therefore, the
jury in this matter based its verdict on different testimony. (See id); see
also Bryant, supra at 197.

For example, unlike in A.M.B., Dr. Wolford provided a plethora of testimony
about the signs and symptoms that Child would have displayed due to her
extreme injuries, signs and symptoms of which K.B. reasonably should have
been aware, and that she had a duty to investigate further. She also opined
that the severe injuries experienced by Child were indicators of child abuse.
Further, K.B.’s statements to Trooper Craig evidenced that she was aware of
behavior by M.D. in his interactions with Child that she admitted should have
caused her concern. Therefore, where the record from A.M.B. does not
demonstrate that the jury reached its verdict on the same thorough testimony
provided in this case, it is distinguishable and K.B.’s reliance misplaced.

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Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/15/2020

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