Com. v. Engler-Harper, N.

J-S18045-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
NICOLE R. ENGLER-HARPER :
:
Appellant : No. 106 MDA 2022

Appeal from the Judgment of Sentence Entered January 6, 2022
In the Court of Common Pleas of Lycoming County Criminal Division at
No(s): CP-41-CR-0000238-2019

BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and McCAFFERY, J.

MEMORANDUM BY McCAFFERY, J.: FILED: AUGUST 16, 2022

Nicole Engler-Harper (Appellant) appeals from the judgment of sentence

entered in the Court of Common Pleas of Lycoming County, following her jury

convictions of two counts of endangering the welfare of children (EWOC).1

Appellant raises three claims: (1) there was insufficient evidence to support

her EWOC convictions; (2) the verdict was against the weight of the evidence;

and (3) the sentence was unreasonable and excessive. We affirm.

We glean the underlying facts supporting Appellant’s convictions from

the November 15, 2021, trial testimony. Appellant rented a home on

Washington Boulevard in Williamsport, Pennsylvania, that she shared with her

____________________________________________

118 Pa.C.S. § 4304(a)(1). Both crimes were graded as third-degree felonies.
See Order, 11/18/21.
J-S18045-22

paramour, the couple’s two-year-old biological son (D.K.), and her paramour’s

five-year-old son (M.K.) from a prior relationship. The paramour was

considered the “breadwinner” of the family and worked outside the home.

N.T., 11/15/21, at 47. Appellant watched the children during the day and was

their primary caretaker as they were “in her sole custody[.]” Id. at 48.

On the morning of September 27, 2017, Dean Severson, a Codes

Enforcement Officer for the City of Williamsport, went to Appellant’s residence

with a rental agent to perform a home inspection. N.T., 11/15/21, at 14.

Appellant was mowing the yard at the time. Id. at 17. After Officer Severson

entered the home to begin the inspection, Appellant rushed past him in the

stairwell and “unlock[ed] a lock on a door” to a bedroom on the second floor.

Id. at 20. Officer Severson noticed there was “a regular padlock with a key”

and a “hasp[2] on the door.” Id. Inside the room, the inspector observed

M.K., in only his underwear, lying on a mattress on the floor. Id. Additionally,

there were: (1) no sheets on the bed; (2) a pillow without a pillowcase; (3) a

light without a lampshade; and (4) some minor holes in the wall. Id. at 19-

20. Additionally, the windows were boarded up, divesting the room of natural

light. Id. Officer Severson instructed Appellant to remove the lock. Id. at

21. The inspector noted that Appellant responded in an irritated way, stating:

____________________________________________

2Severson described a “hasp” as a “metal device” that is screwed to “the jamb
on the door.” N.T., 11/15/21, at 20. He stated, “you can put [the hasp] over
[a] little hook. When you close it, you can put the lock on it.” Id.

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“[W]hat do you want me to do [─] let him out and break everything in the

house[?]” Id. at 22. Officer Severson then told Appellant that if she did not

remove the lock, he would call the Children & Youth Services Office (CYS).

Id.

Officer Severson moved to the second bedroom on that floor when

Appellant took “a screwdriver out of another hasp that[ was] on that door that

was locking that door closed.” N.T., 11/15/21, at 23. He described the second

bedroom as very cluttered ─ there were “dressers on top of dressers and a TV

on top of another dresser’ that was “leaning[.]” Id. He was concerned about

the device falling on the child, D.K., who was sitting in a playpen. Id.

Officer Severson contacted the landlord, who “got a screw gun and

removed [the locks from] the door[s].” N.T., 11/15/21, at 24. He noted it

was “illegal to have a lock on the outside of the bedroom door” because if

there were an emergency, a person could not get out. Id. at 25. Appellant

attempted to give Officer Severson the locks before he left.3 Id. at 28. The

inspector returned to his office and called CYS to report the incident. Id. at

25.

Edward Frame, a caseworker for Lycoming County CYS, received a

referral report for “confining and restraining” two children from Officer

Severson and he visited the home around 3:45 p.m. that same afternoon.

____________________________________________

3 It is unclear from the record whether the inspector accepted the locks.

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N.T., 11/15/21, at 30-31. While outside the residence, Frame first met

Appellant’s paramour, who stated he was aware Officer Severson was there

earlier, and “that there was an issue.” Id. at 32. Appellant then came onto

the porch and was visibly upset. Id. Frame noted her initial response to him

after he mentioned the report was: “Oh, my God, they called you[.]” Id.

Appellant informed him that the locks had been removed. Id. at 33. It was

Frame’s understanding that M.K.’s room was locked “because that was

[Appellant]’s way to assure safety” and the door to D.K.’s room was locked

“to keep [M.K.] out of that room.” Id. at 50. Furthermore, Appellant informed

Frame that “she was unable to control [M.K.]’s behaviors and that’s why he

was locked and boarded ─ the windows were boarded and that she had locked

her room to keep him out.” Id. at 53. Appellant also told the caseworker that

M.K. attempted to “escape the residence” and went into the bathroom and

played with dangerous items. Id. at 53-54.

Frame went inside the home and while, walking up to the second floor,

“got a strong sense of urine.” N.T., 11/15/21, at 33. Frame entered M.K.’s

bedroom,4 and observed the child standing, wearing only a pair of shorts. Id.

He noticed the bedroom smelled of urine, and the carpets were saturated with

what he believed was urine and it felt sticky. Id. at 34. There was a soiled,

____________________________________________

4 Frame recalled that the door to M.K.’s bedroom was closed when he got
there. N.T., 11/15/21, at 34.

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urine-stained mattress on the floor with a small blanket and training toilet in

the corner of the room. Id. at 33-34. There was no other furniture or toys

in the room. Id. at 33. Like Officer Severson, Frame also saw that the two

windows were “boarded with drywall screwed over, so there[ was] minimal

light coming into the room.” Id. He also noticed the baseboard heating vents

had been removed, which was “concerning” because there were “small metal

fins that [were] attached to piping that [were] sharp.” Id. at 35. Moreover,

Frame saw holes in the walls and a lot of chipped paint. Id. Frame advised

Appellant to clean the room, find appropriate bedding, remove the boards

from the windows, and remove the toilet. Id.

Frame then went to D.K.’s bedroom, which he learned the child shared

with Appellant. N.T., 11/15/21, at 36. He saw the child sleeping in a portable

playpen that was “dirty.” Id. at 37. He noted there were blankets over the

windows, and it was “overly cluttered.” Id. Frame subsequently told the

paramour what changes were necessary, and that he “would return to the

house to ensure that” what he “had requested was rectified.” Id.

The next morning, Frame arrived at the residence with an emergency

outreach worker, Jackie Hummer. N.T., 11/15/21, at 45. Frame observed

that none of the requested changes had been made. Id. He “learned” from

M.K. and Appellant that the paramour “was aware that the children were being

locked in their room.” Id. at 46. Frame “did not believe that there w[ere]

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appropriate protective capacities for the children to remain in the home,” and

thus, requested emergency custody. Id.

After his supervisor granted the emergency custody request, Frame

telephoned the paramour, who was at work. N.T., 11/15/21, at 47. The

paramour indicated that CYS do “whatever [they] felt was best.” Id. Frame

returned to the residence with two caseworkers, Elizabeth Spagnuolo and

Sarah Neff, and two Williamsport police officers. Id. at 46-47. The children

were placed in Frame’s custody and removed from the home. Id. Frame

noticed that Appellant was “holding [D.K.] and sobbing about him being

taken[,]” but she showed no attachment to M.K. Id. at 48. Frame asked

Appellant to pack clothing for the children but she could not do so because all

of the children’s clothes “were dirty.” Id. at 50.5

Appellant was charged with two counts of EWOC and one count of

unlawful restraint of minor.6 The matter proceeded to a one-day jury trial on

November 15, 2021.7 The Commonwealth presented the testimony of Officer

____________________________________________

5 At Appellant’s sentencing hearing, Frame provided supplementary testimony
that Appellant “monitored the food and water intake to these boys.” N.T.,
1/6/22, at 6. Moreover, he stated that when he took custody of them, they
were “under the fifth percentile for their height and weight.” Id.

6 18 Pa.C.S. § 2902(c)(1).

7 Appellant was originally tried on February 5, 2020, but the jury failed to
reach a verdict, resulting in a mistrial. Due to COVID-related issues, a second
trial was not held until November 2021. At the time of the trial, the
Commonwealth withdrew the unlawful restraint charge.

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Severson and Frame about the conditions of the residence and their

interactions with Appellant. The Commonwealth also presented the testimony

of Spagnuolo, the assessment caseworker for CYS, and Kara Smith, M.K. and

D.K.’s foster parent. Each described the behavior of the children upon their

removal from the residence.8

Appellant testified she was unemployed at the time of the incident and

was taking care of both boys. See N.T., 11/15/21, at 76-77. She stated that

M.K. had the following behavioral issues: (1) he did not listen to what

Appellant and his father told him to do; (2) he hid things, like razors, screws,

and nails, in his room; (3) he dug the holes in the walls and peeled off the

paint; and (4) he jumped off furniture. Id. at 77-78. Appellant testified M.K.

tried to run away on April 6, 2017, and that in response, she installed the

locks a day or two later. Id. at 79. She indicated she boarded up the windows

“a few months later” because M.K. would hang out the window. Id. at 80.

____________________________________________

8 Spagnuolo testified that D.K showed no emotion when she removed him
from the home ─ he did not cry or grab for anyone. N.T., 11/15/21, at 62-
63. She noted M.K. was “very excited” to leave and used a derogatory word
in reference to Appellant. Id. at 63.

Smith testified that when the boys arrived at her home, their bodies and
clothes were dirty. N.T., 11/15/21, at 69. D.K.’s skin was very pale, his eyes
were red and sunken in, and he did not make any noise or interact with
anyone. Id. at 69-70. Smith found that M.K. did not act inappropriately and
he did not destroy or hang off the furniture or damage the walls. Id. at 70-
71. She indicated there was nothing behavior-wise about M.K. that concerned
her. Id. at 72. She believed he engaged in “typical five-year-old behavior.”
Id. at 73.

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Appellant took these measures because she wanted to ensure M.K.’s safety.

Id. at 80.

Nevertheless, Appellant admitted to locking M.K. in his room, which

“became an every night thing[,]” “to make sure he stayed in his room[.]”

N.T., 11/15/21, at 80-81. She acknowledged that she locked him in the room

during the day “a couple of times a week[,] but only for a maximum of ten to

15 minutes” when she was cleaning with chemicals. Id. at 81. Appellant later

indicated the day-time detention was “[m]aybe three times a week depending

on the behavioral issues.” Id. at 81-82. She testified she took the set of

bunk beds and dresser out of M.K.’s room because he would climb and jump

off the furniture, and she removed toys from his room because he would hide

them in there. Id. at 83-84. Appellant said there were no sheets or blankets

on M.K.’s bed because he “spilled something” and the training potty was in

the room for emergencies. Id. at 84. She denied that the carpet was soaked

with urine or that Officer Severson and Frame provided her with a list of

improvements for the home. Id. at 85-86. Instead, Officer Severson only

told her to remove the locks. Id. at 85. When asked about the lack of clean

clothes for the children, Appellant stated that she only did laundry once a

week, and the incident happened one day prior to that designated laundry

day. Id. at 86. She denied using locks with D.K. but also stated that she

would lock the door to his room when she and the child left the property. Id.

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She also refuted Officer Severson’s testimony that there was a “padlock” on

M.K.’s door and that there was any “screwdriver” on D.K.’s door. Id. at 89.

The jury found Appellant guilty of the two EWOC charges. On January

6, 2022, the trial court sentenced Appellant to consecutive periods of

incarceration of 12 to 24 months. On January 10th, Appellant filed a post-

sentence motion, raising three issues: (1) the evidence presented was

insufficient to establish the elements of EWOC; (2) the verdict was against the

weight of the evidence; and (3) the sentence was unreasonable and excessive

because the trial court imposed consecutive sentences and failed to consider

Appellant’s reasons for her actions. Appellant’s Motion for Post-Sentence

Relief, 1/10/22, at 3-6. Two days later, the court entered an order denying

Appellant’s motion because it found the arguments were “non-meritorious.”

Order, 1/12/22.

On January 13, 2022, Appellant filed a timely notice of appeal, and

subsequently complied with the trial court’s order to file a Pa.R.A.P. 1925(b)

statement of errors complained of on appeal.

Appellant presents three issues for our review:

1. [Whether t]he evidence presented by [the Commonwealth
was] insufficient to establish the elements of the charges of
[EWOC?]

2. [Whether t]he verdict was against the weight of the evidence
as to shock the conscience as there was no evidence these
children were locked in their rooms for long periods of time,
that they were neglected[,] and in light of her testimony that
her actions were out of a place of love, safety, care and
control[?]

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3. [Whether t]he sentence imposed was unreasonable and
excessive in light of the sentencing factors as the [trial c]ourt
imposed consecutive sentences and failed to consider
Appellant’s reasons for her actions[?]

Appellant’s Brief at 7.9, 10

In her first issue, Appellant challenges the sufficiency of the evidence

with respect to both EWOC convictions. See Appellant’s Brief at 23. Appellant

contends that the Commonwealth failed to provide any testimony that “she

knowingly violated a duty of care, protection or support” to D.K. and M.K. Id.

at 24. Appellant also alleges the Commonwealth failed to demonstrate that

she engaged in “a course of conduct” that would support the finding that the

offenses qualified as third-degree felonies. Id. She states:

The testi[mony] presented could not prove that [Appellant] had
locked M.K. and D.K. in their rooms for long periods of time. Not
one witness had been there to see that occur and there was no
testimony to that having occurred. Moreover, there was no
evidence the children were locked in the rooms with dangerous
items or deprived of the necessities of life. [Appellant] testified
to the children being out of their rooms most of time, feeding them
healthy meals, playing with them, teaching them, etc. There was
no evidence [Appellant] caused any harm whatsoever to these
children.

Id. at 24-25.

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9 We have reordered Appellant’s claims for ease of disposition.

10 The Commonwealth did not file a responsive brief in this matter.

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Appellant also alleges that she “used the locks for M.K to keep him safe

[and that t]he locks were used out of a place of love, safety, security and

care.” Appellant’s Brief at 25. She further asserts that the locks and the

boarding of the windows in M.K.’s room were to prevent the child from

escaping the residence, gathering harmful items from around the residence,

falling out of the second-story windows, or becoming injured when she was

cleaning with chemicals or mowing the law. Id. Appellant concludes, “All of

this evidence shows she was doing the opposite of . . . endangering the welfare

of these children.” Id. No relief is due.

We begin with our well-settled standard of review:

As a general matter, our standard of review [for a sufficiency
claim] requires that we evaluate the record in the light most
favorable to the verdict winner giving the prosecution the benefit
of all reasonable inferences to be drawn from the evidence.
Evidence will be deemed sufficient to support the verdict when it
establishes each material element of the crime charged and the
commission thereof by the accused beyond a reasonable doubt.
Nevertheless, the Commonwealth need not establish guilt to a
mathematical certainty. 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.

The Commonwealth may sustain its burden by means of
wholly circumstantial evidence. Accordingly, [t]he fact that the
evidence establishing a defendant’s participating in a crime is
circumstantial does not preclude a conviction where the evidence
coupled with the reasonable inferences drawn therefrom
overcomes the presumption of innocence. Significantly, we may
not substitute out judgment for that of the fact finder; thus, so
long as the evidence adduced, accepted in the light most favorable
to the Commonwealth, demonstrates the respective elements of
a defendant’s crimes beyond a reasonable doubt, the . . .
convictions will be upheld.

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Commonwealth v. Windslowe, 158 A.3d 698, 708-09 (Pa. Super. 2017)

(citation omitted).

The crime of EWOC is defined, in relevant part, as follows: “A parent,

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

age, or a person that employs or supervises such a person, commits an

offense 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). The EWOC statute

provides that the term, “person supervising the welfare of a child,” means “a

person other than a parent or guardian that provides care, education, training

or control of a child.” 18 Pa.C.S. § 4304(a)(3).

The “knowing” element of the crime applies to the general issue
of whether the defendant knew that he was endangering the
child’s welfare, not whether the defendant knew that he would
cause any particular result. For example, in Commonwealth v.
Passarelli, 789 A.2d 708, 716 (Pa. Super. 2001), the
Commonwealth presented evidence that the defendant was
entrusted with the care of a child, whom he intentionally shook or
struck on the side of the head. In ruling that the evidence was
sufficient for EWOC, we wrote that “the act that [the defendant]
performed on [the victim] was not designed to protect, care or
support [the victim].”

Commonwealth v. Smith, 956 A.2d 1029, 1038 (Pa. Super. 2008) (en

banc).

To establish a violation of Section 4304, the Commonwealth must

demonstrate the following:

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

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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.

If the Commonwealth fails to prove any one of these elements,
there is insufficient evidence to sustain a conviction for child
endangerment.

Commonwealth v. Pahel, 689 A.2d 963, 964 (Pa. Super. 1997) (citation

omitted).

In Commonwealth v. Taylor, 471 A.2d 1228 (Pa. Super. 1984), this

Court discussed the legislature’s intent in Section 4304:

The 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 purposes for which it
was enacted. Thus, the common sense of the community, as
well as the sense of decency, propriety and the morality which
most people entertain is sufficient to apply the statute to each
particular case, and to individuate what particular conduct is
rendered criminal by it.

Id. at 1231 (emphasis added; citations and quotation marks omitted).

Additionally, the offense constitutes a third-degree felony if “the actor

engaged in a course of conduct of endangering the welfare of a child.” 18

Pa.C.S. § 4304(b)(ii). The statute does not define the term “course of

conduct.” See Commonwealth v. Kelly, 102 A.3d 1025, 1031 (Pa. Super.

2014) (noting that “course of conduct” language in EWOC statute used in

grading of offense, and not as element of offense, and pointing out that EWOC

statute does not define term but highlighting that “the phrase is clearly used

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in that context to differentiate the penalties for single and multiple

endangering acts”).

Here, the trial court found the following:

[T]he facts presented at trial established that [Appellant],
who cared for her biological child, two . . . years old, and her
paramour’s son, five . . . years old, while her paramour was
working, would lock the children in separate bedrooms with
padlocks on the outside of the doors. The condition of the rooms
were deplorable. The eldest child’s room contained only a stained
mattress without bedding and a child’s training toilet. The
windows were boarded up such that there was no natural light and
the carpet was saturated with what smelled like urine. The child
was found wearing nothing but underwear. The younger child was
sleeping in a second room in a dirty pack-and-play and the room
was extremely cluttered. On the day following this discovery, the
[CYS] caseworker returned to the home but there was no change.
[Appellant]’s excuse was that she locked the children in the room
to prevent the eldest child from harming himself and others. . . .

Based on these facts, along with the other facts established
at trial, this Court remains of the opinion that . . . the evidence
was sufficient to prove that [Appellant] knowingly violated her
duty of care, protection, or support to the two minor victims.

Trial Ct. Op., 2/1/22, at 4-5.

We agree with the trial court’s determination that the evidence

supported Appellant’s convictions. A review of the record reveals that while

no witness could provide specific testimony as to the length of time the

children were locked in the bedrooms or that the children were deprived of the

necessities of life, the jury could reasonably infer from the testimony that

Appellant knowingly endangered the welfare of the children by violating her

duty of care, protection or support. See 18 Pa.C.S. § 4304(a)(1).

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First, Appellant was aware of her duty to protect the children as they

were in her daily custody as a primary caregiver while her paramour worked.

N.T., 11/15/21, at 47-48, 76.

Second, she was aware that the children were in circumstances that

could threaten their physical or psychological welfare. Appellant rushed past

the inspector to unlock the locks before he could observe the state of the doors

and the fact that children were in those bedrooms. N.T., 11/15/21, at 20.

Moreover, by her own admission, Appellant installed the locks in April 2017,

five months prior to the inspection, and boarded up the windows several

months later. Id. at 79. She admitted to locking M.K. in his room nightly.

Id. at 80-81. Appellant also indicated she locked M.K. in his room during the

day “[m]aybe three times a week depending on [his] behavioral issues.” Id.

at 81-82. She removed all furniture and toys from the room because of his

purported bad behavior. Id. at 83-84. While Appellant denied using locks

with D.K., Officer Severson observed her unlock the door with a screwdriver,

while the child was inside the room. Id. at 23.

Third, Appellant failed to act to protect the children’s welfare. We

reiterate that “Section 4304 was drawn broadly to cover a wide range of

conduct in order to safeguard the welfare and security of children” and it was

refer “to the common sense of the community[.]” Taylor, 471 A.2d at 1231.

In addition to the locks, there was evidence of the deplorable and unsanitary

conditions of the children’s bedrooms and the physical state of the children.

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Officer Severson testified that there was a locked padlock on M.K.’s bedroom

door, and in the room, he observed a mattress on the floor without sheets,

minor holes in the wall, peeled paint, windows boarded up that did not let in

any natural light, and M.K. wearing only underwear. See N.T., 11/15/21, at

20-22. Officer Severson also testified that he found D.K. in a locked room

that Appellant had to unlock with a screwdriver. See id. at 23. In this room,

he observed a lot of clutter and stacked furniture leaning towards the playpen

where D.K. was placed. See id. at 23-24.

Frame, the CYS caseworker, testified that there was a strong smell of

urine in the hallway near M.K.’s and D.K.’s rooms. Frame observed the carpet

in M.K.’s room was saturated in urine, his mattress was soiled and urine-

stained, the windows were boarded with drywall so no natural light could come

through, and the covers to the baseboard heating vents had been removed,

which created a dangerous condition. See N.T., 11/15/21, at 33-35. In the

room that D.K. shared with Appellant, Frame observed D.K. sleeping in a

“dirty” playpen, and there were blankets covering the windows, and lots of

clutter. Id. at 36-37. Frame testified he returned to Appellant’s residence

the following day and did not observe any changes. Id. at 38, 45. Frame

also stated that Appellant did not have any clean clothes for the children when

they were removed from her custody. Id. at 50.

The evidence adduced at trial overwhelmingly established that the

children’s bedrooms were not suitable living conditions, that this environment

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threatened the children’s welfare, and Appellant failed to act in a proper way.

The jury was free to reject Appellant’s explanation that her actions were out

of love, safety, security, and care, and find her responsible. See Windslowe,

158 A.3d at 708-09. As for Appellant’s claim that there was insufficient

evidence to support the grading of the offense, she misconstrues the element

of “course of conduct” by solely focusing on the amount of time the children

were locked in their rooms. Although the EWOC statute does not define

“course of conduct,” the phrase differentiates the penalties for single and

multiple endangering acts. See Kelly, 102 A.3d at 1031. Here, it was evident

that Appellant’s nefarious actions constituted multiple endangering acts over

an extended period.

Viewing the evidence in a light most favorable to the Commonwealth,

we conclude there was sufficient evidence to sustain convictions for EWOC,

and that a jury could reasonably find a course of conduct that endangered the

welfare of M.K. and D.K. We find that Appellant’s sufficiency claim is without

merit.

In Appellant’s second issue, she asserts the verdict was against the

weight of the evidence as to her EWOC convictions because “she never

endangered the welfare of these children.” Appellant’s Brief at 21.11 Appellant

____________________________________________

11Appellant properly preserved her challenge to the weight of the evidence in
her post-sentence motion pursuant to Pa.R.Crim.P. 607(A). See Pa.R.Crim.P.
607(A)(1)-(3) (a challenge to the weight of the evidence must be raised before
(Footnote Continued Next Page)

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again claims that “there was no evidence the children were locked in the rooms

with dangerous items or deprived of the necessities of life.” Id. She also

maintains that there was no evidence that she “caused any harm whatsoever

to these children.” Id. at 22. Appellant relies on her own testimony ─ that

she used the locks and boarded the windows to keep M.K. safe, and that she

only locked the room she shared with D.K. when the two left the home ─ to

support her argument. Id. at 22.

This Court’s standard of review of a weight of the evidence claim is well-

settled:

A weight of the evidence claim concedes that the evidence
is sufficient to sustain the verdict, but seeks a new trial on the
ground that the evidence was so one-sided or so weighted in favor
of acquittal that a guilty verdict shocks one's sense of justice. On
review, an appellate court does not substitute its judgment for the
finder of fact and consider the underlying question of whether the
verdict is against the weight of the evidence, but, rather,
determines only whether the trial court abused its discretion in
making its determination.

Commonwealth v. Lyons, 79 A.3d 1053, 1067 (Pa. 2013) (citations

omitted). Further, the jury, as fact finder, is free to believe all, some, or none

or the evidence presented. Commonwealth v. Jacoby, 170 A.3d 1065, 1078

(Pa. 2017) (citations omitted). The jury is also free to “resolve any

inconsistencies or discrepancies in the testimony in either party's favor.” Id.

____________________________________________

the trial court either before sentencing or in a post-sentence motion); see
also Commonwealth v. Walsh, 36 A.3d 613, 622 (Pa. Super. 2012).

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This Court will not find an abuse of discretion

based on a mere error of judgment, but rather . . . where the
[trial] court has reached a conclusion which overrides or
misapplies the law, or where the judgment exercised is manifestly
unreasonable, or the result of partiality, prejudice, bias or ill-will.
Importantly, [this C]ourt should not find that a trial court abused
its discretion merely because [we] disagree[ ] with the trial court’s
conclusion. Indeed, “when reviewing the trial court’s exercise of
discretion, it is improper for [this C]ourt to ‘step[ ] into the shoes’
of the trial judge and review the evidence de novo.” In other
words, [this C]ourt may not disturb a trial court’s discretionary
ruling by substituting its own judgment for that of the trial court.

Commonwealth v. Gill, 206 A.3d 459, 467 (Pa. 2019) (citations and some

quotation marks omitted).

In denying Appellant’s weight claim, the trial court relied on the same

evidence it considered to reject her sufficiency argument. See Trial Ct. Op.,

at 4-5. As addressed above, the court highlighted the following facts: (1) the

“deplorable” conditions of the children’s bedrooms; (2) the physical state of

the children; (3) and Appellant’s sole justification for her actions was

“prevent[ing] the eldest child[, M.K.,] from harming himself and others.” Id.

Appellant’s argument amounts to a request for this Court to reweigh the

evidence in her favor. This request is beyond our scope of review. As the

jury was free to believe all, part, or none of the evidence, we may not re-

weigh the evidence or disturb the jury’s credibility determinations. See

Jacoby, 170 A.3d at 1078. The jury heard from all the witnesses, including

Officer Severson, Frame, and Smith, and found them to be credible based on

the convictions. The jury considered Appellant’s self-serving testimony and

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found her incredible. We decline to substitute our credibility determinations

for that of the jury. See Jacoby, 170 A.3d at 1078; Lyons, 79 A.3d at 1067.

Moreover, the jury’s verdict was supported by the evidence and does not

shock one’s sense of justice. We conclude Appellant failed to demonstrate

how the trial court abused its discretion in denying her challenge to the weight

of the evidence, and no relief is due.

Appellant’s final claim presents a challenge to the discretionary aspects

of her sentence, that sentence was unreasonable and excessive in light of the

sentencing factors and her reasons for her actions. See Appellant’s Brief at

16; see also Commonwealth v. Ahmad, 961 A.2d 884, 886 (Pa. Super.

2008) (“A challenge to an alleged excessive sentence is a challenge to the

discretionary aspects of a sentence.”). Before this Court can address a

discretionary challenge in sentencing, an appellant must comply with the

following requirements:

An appellant challenging the discretionary aspects of his
sentence must invoke this Court’s jurisdiction by satisfying a four-
part test: (1) whether appellant has filed a timely notice of appeal,
see Pa.R.A.P. 902 and 903; (2) whether the issue was properly
preserved at sentencing or in a motion to reconsider and modify
sentence, see Pa.R.Crim.P. [720]; (3) whether appellant’s brief
has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a
substantial question that the sentence appealed from is not
appropriate under the Sentencing Code.

Commonwealth v. Caldwell, 117 A.3d 763, 768 (Pa. Super. 2015) (citation

omitted).

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Here, a review of the record reveals Appellant properly preserved her

discretionary aspects of sentencing issue by including it in her January 10,

2022, post-sentence motion, filing a timely notice of appeal, and including a

Pa.R.A.P. 2119(f) statement in her brief. See Appellant’s Brief at 14-15.

Thus, we must determine whether she has raised a substantial question

justifying our review.

The determination of what constitutes a substantial question must
be evaluated on a case-by-case basis. A substantial question
exists only when the appellant advances a colorable argument
that the sentencing judge’s actions were either: (1) inconsistent
with a specific provision of the Sentencing Code; or (2) contrary
to the fundamental norms which underlie the sentencing process.

Commonwealth v. Proctor, 156 A.3d 261, 273 (Pa. Super. 2017) (citations

and quotation marks omitted). “We cannot look beyond the statement of

questions presented and the prefatory Rule 2119(f) statement to determine

whether a substantial question exists.” Commonwealth v. Crawford, 2021

PA Super 62, 257 A.3d 75, 78-79 (Pa. Super. 2021).

In Appellant’s Rule 2119(f) statement, she contends the trial court

abused its discretion and imposed an excessive length of sentence,

complaining:

[H]er sentence is unreasonable because the [trial] court focused
on exclusively its belief that the children were locked in isolation
and that their mental health could have been [a]ffected
permanently. The [trial] court completely failed to give
appropriate and meaningful consideration to, among other things,
the legislature’s account for this through the sentencing
guidelines, the fact that no testimony was presented to show
[Appellant’s] actions were not out of a place of love, safety, care,
and control as was testified to by her. There was absolutely no[ ]

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testimony presented which would have show[ed] the children
were living in isolation by being locked in their rooms for the
periods of time [as] testified to by [Appellant].

Appellant’s Brief at 14-15.

This Court has previously determined that a substantial question exists

when the issue is “whether the decision to sentence consecutively raises the

aggregate sentence to, what appears upon its face to be, an excessive level

in light of the criminal conduct[.]” Commonwealth v. Gonzalez-

DeJusus, 994 A.2d 595, 598-99 (Pa. Super. 2010) (emphasis added). We

interpret Appellant’s claim to fall under this type of substantial question. Thus,

we may proceed to consider the merits of her claim.

Appellant asserts the trial court failed to give “meaningful consideration”

of the sentencing factors by imposing a patently excessive sentence.

Appellant’s Brief at 18. She contends the court “obsessively focused on [its]

belief that this was long, [on]going treatment of these children that could have

affected their mental health when there was no testimony as to how long this

had been occurring.” Id. Appellant also claims the court failed to give

appropriate weight to mitigating factors, such as her lack of a prior criminal

history, and that she has not committed any additional crimes and has

attended every required criminal proceeding. Id. at 19. Finally, she points

out that she was employed while out on bail. Id. No relief is due.

We have a deferential standard of review for discretionary aspects of

the sentence claims:

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Sentencing is a matter vested within the discretion of the trial
court and will not be disturbed absent a manifest abuse of
discretion. An abuse of discretion requires the trial court to have
acted with manifest unreasonableness, or partiality, prejudice,
bias, or ill-will, or such lack of support so as to be clearly
erroneous.

Commonwealth v. Crump, 995 A.2d 1280, 1282 (Pa. Super. 2010)(citations

omitted).

Pursuant to 42 Pa.C.S. § 9721(b), “the [trial] court shall follow the

general principle that the sentence imposed should call for confinement that

is consistent with the protection of the public, the gravity of the offense as it

relates to the impact on the life of the victim and on the community, and the

rehabilitative needs of the defendant.” 42 Pa.C.S. § 9721(b). “[T]he court

shall make as part of the record, and disclose in open court at the time of

sentencing, a statement of the reason or reasons for the sentence imposed.”

Id. The record “must reflect the [trial] court’s consideration of the facts of

the crime and character of the offender.” Crump, 995 A.2d at 1283. “In

particular, the court should refer to the defendant’s prior criminal record, his

age, personal characteristics and his potential for rehabilitation.”

Commonwealth v. Griffin, 804 A.2d 1, 10 (Pa. Super. 2002).

We emphasize the trial court “is in the best position to measure various

factors and determine the proper penalty for a particular offense based upon

an evaluation of the individual circumstances before it.” Commonwealth v.

Perry, 32 A.3d 232, 236 (Pa. 2011) (citation and quotation marks omitted).

“Where pre-sentence reports exist, we shall continue to presume that the

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sentencing judge was aware of relevant information regarding the defendant’s

character and weighed those considerations along with mitigating statutory

factors.” Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988).

Here, the trial court had the benefit of the pre-sentence investigation

report. See N.T., 1/6/22, at 2. Appellant had a prior record score of zero,

and the offense gravity score for both EWOC counts was six. See Trial Ct.

Op. at 2. The applicable sentencing guidelines provide that the standard range

was three to 12 months, with an additional six months in the aggravated

range. Id. As noted above, the court sentenced Appellant to consecutive

terms of 12 to 24 months’ incarceration, which was at the top end of the

standard range. See N.T., 1/6/22, at 10.

“Where the sentencing court impose[s] a standard-range sentence with

the benefit of a pre-sentence report, we will not consider the sentence

excessive. In those circumstances, we can assume the sentencing court was

aware of relevant information regarding the defendant’s character and

weighed those considerations along with mitigating statutory factors.”

Commonwealth v. Corley, 31 A.3d 293, 298 (Pa. Super. 2011).

Nonetheless, at sentencing, the court received updated information

regarding Appellant’s employment status. N.T., 1/6/22, at 3. The court also

heard additional testimony from Frame, who stated that the children were

malnourished and that after the children had been removed from the home,

Appellant texted Frame about “appropriate window locks.” Id. at 6-7. Frame

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testified: “So this [was not] about the care and the love of these children.

She hated [M.K.].” Id. at 7.

In seeking an aggravated range sentence, the Commonwealth noted the

following:

The conditions in which these children lived, deplorable does
not begin to describe their situation and plight. At [two], the
younger child was not speaking and shied away. At five, the older
child, spoke up and called [Appellant] an asshole. At five.

[M.K.] lived with a mattress, a potty, and a dirty blanket in
a urine-stained room with a lock. . . . That is not parenting. That
is not mothering.

[Defense] counsel argued that [Appellant] maintains she
provided safety, care, and control. Those are three words that
cannot be used to describe what she did to those children. There
is no safety [for a two] and five [year old] locked in a room. There
is no safety without food and love and nourishment. There is no
care.

I will give [Appellant] credit, control is what she had. At
[two] and five you don’t have control, others do. She had control,
and she exercised it poorly. [Defense] counsel argues her rights
were terminated. I applaud that termination, but that is not her
punishment today. That was a separate collateral effect of her
behavior that should not move the [c]ourt towards leniency today.

Beyond safety, care, and control, counsel argues [Appellant]
showed love and care and a safe environment; and those are
simply not true. The allegations come from the mouth of a five-
year-old, the actions of a [two]-year-old, the admission by the
father of both children, the observations of disinterested parties
that saw boarded windows and locked doors. That all undercuts
her position for safety, care, and control.

Your Honor, the allegations are beyond egregious. They’re
disgusting. We would ask that the [c]ourt impose a sentence
above the standard range for this individual to reflect the
everlasting impact she has personally had on those two young
individuals.

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Id. at 8-9. Appellant did not exercise her right to allocution and speak at the

hearing.

At the conclusion of the proceeding, the court set forth its rationale:

The Court[,] in reaching this determination, [heard] the
explanation given by [Appellant] in that she was intending to . . .
protect these children; but [it was] not sure what she was trying
to protect them from.

Preventing them from having the necessary food and water,
having nothing ─ a five-year-old having nothing beyond a
mattress in a room, which [it] clearly remember[ed] the testimony
that the lower portion of the living premise was fully furnished and
kept nice and tidy and was [as] if the children were not allowed to
be outside that room.

That does not . . . match up with trying to take care of these
children. There [was] nothing that was stated there that would
support her position. And, quite honestly, we’re only here on
[EWOC] charges because a code officer reported this.

There was nothing that [indicated] this behavior was going
to self-correct. This was not an isolated incident of the one time
a caregiver inappropriately handl[ed] a child. . . .

This was a long, ongoing treatment of these children. This
could have resulted in their deaths due to [a] lack of nourishment.
If that wasn’t the case, it could have been the . . . mental health
of these children having lived in insolation, what it could have
done to them.

That’s why [it did] not find this to be a case appropriate at
all for a mitigated sentence, and that is why [it] imposed the top
of the standard range on each of these counts as there [were] two
separate children who have suffered this harm.

Id. at 10-11.

In its Pa.R.A.P. 1925(a) opinion, the trial court added:

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While the [c]ourt found [Appellant]’s actions to be inhumane and,
if not for the intervention from a third party, would have carried
on indefinitely, the [c]ourt’s sentence was within the standard
range of the sentencing guidelines. [Appellant]’s actions were
callus and will have a lifetime impact on the victims. Additionally,
the [c]ourt was within its discretion to impose consecutive
sentencing, considering the fact that there are two separate
victims in this case.

Trial Ct. Op. at 3.

Under our standard of review, we conclude the trial court did not abuse

its discretion with regard to Appellant’s sentence. Contrary to her argument,

it is evident from the sentencing hearing and the Rule 1925(a) opinion that

the court considered the required factors under Section 9721(b). Likewise,

the court acknowledged its understanding of the sentencing guidelines, and

articulated a sufficient statement of reasons for its sentence. Contrary to

Appellant’s assertion that there no testimony as to how long her abuse had

been occurring, the record clearly demonstrates that it persisted for a

substantial period based on the conditions of the children and the home.

Therefore, the court was justified in emphasizing the lasting effect of

Appellant’s treatment of the children on their mental health. Accordingly,

Appellant’s discretionary sentencing claim fails.

Judgment of sentence affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 08/16/2022

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