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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DWAYNE GOODEN, :
:
Appellant : No. 435 EDA 2016
Appeal from the Judgment of Sentence January 7, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0005197-2014
BEFORE: BENDER, P.J.E., DUBOW, J., and SOLANO, J.
MEMORANDUM BY DUBOW, J.: FILED FEBRUARY 17, 2017
Appellant, Dwayne Gooden, appeals from the January 7, 2016
Judgment of Sentence entered in the Philadelphia County Court of Common
Pleas. After careful review, we affirm on the basis of the trial court’s
Opinion, which found that there was sufficient evidence to support the jury’s
convictions for Endangering the Welfare of a Child and Unlawful Restraint.
The trial court’s Pa.R.A.P. 1925(a) Opinion includes a thorough and
complete narrative of the facts and procedural history of this case, which we
adopt for purposes of this appeal. See Trial Court Opinion, filed 7/20/16, at
2-7. While we will not go into exhaustive detail here, some of the relevant
facts are as follows.
In 2013 and 2014, Appellant lived with his then girlfriend Zoraya Velez
(“Victim Mother”) and her three young sons (“Victim Children”). Appellant
J. S10027/17
drove the Victim Children to school, cooked meals for the Victim Children,
helped them with schoolwork, and generally contributed to the care of the
three Victim Children.
From the evening of March 29, 2014 to the early morning hours of
March 30, 2014, Appellant subjected his victims to a campaign of escalating
threats and physical abuse. Appellant demanded money from Victim
Mother, spat in her face, smacked her, and threatened to kill her. He told
Victim Mother that she could not leave the apartment or phone for help, and
he took her phone and keys from her. Around 5:00 am, after Appellant fell
asleep, Victim Mother retrieved her phone, called the front desk of her
building, and asked for help.
At approximately 5:30 am, police responded to the apartment and
knocked on the door. The knocking woke Appellant, who began barricading
the door with a bedframe and other large objects. Appellant then went after
Victim Mother, holding a pillow over her face. He pinned her to the bed,
cutting off her ability to breathe. Although she briefly wrestled free,
Appellant tackled her to the floor, covering her mouth with his hands and
later forcing a dirty washcloth into her mouth to prevent her from calling out
for help.
Victim Mother tried to scream, and called for her sons to open the
front door to get help. Appellant called the Victim Children “motherfuckers,”
told them he would kill them if they went near the front door, and then
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continued assaulting their mother, dragging her across the apartment floor
in view of the boys.
The oldest of the Victim Children, Z.Z., who was 11 or 12 years old on
the night of the attack, testified at trial that he felt traumatized by the
incident.
It took the collective efforts of seven or eight officers, kicking the door
and utilizing a crowbar, to finally gain entry into the apartment. On the
other side of Appellant’s makeshift barricade, Victim Mother lay bleeding in
the corner of the apartment, suffering injuries to her chest, hands, neck,
knee, head and face. A laceration in her bottom lip required stitches.
Appellant, who was fugitive on unrelated charges, refused to comply
with the officers who entered the apartment. He was taken into custody at
gunpoint, and charged with Attempted Murder, Aggravated Assault, Unlawful
Restrain, Endangering the Welfare of a Child, and related charges.
Appellant proceeded to a jury trial. On October 23, 2015, the jury
found Appellant guilty of Unlawful Restraint, Simple Assault, and
Endangering the Welfare of a Child.1 On January 7, 2016, the trial court
sentenced Appellant to five to ten years of incarceration.
On February 1, 2016, Appellant timely-filed the instant appeal. Both
Appellant and the trial court complied with Pa.R.A.P. 1925.
On appeal, Appellant raises two issues:
1
18 Pa.C.S. §§ 2902(a)(1), 2701(a), and 4304(a)(1), respectively.
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J. S10027/17
1. Was not the evidence insufficient to establish endangering the
welfare of children [] where Appellant did not meet the definition
of a “person supervising the welfare of a child,” and there was
insufficient evidence that the welfare of a child was, in any
event, endangered?
2. Was not [A]ppellant erroneously convicted of unlawful
restraint [] as there was insufficient evidence either that he
exposed the complainant, Zoraya Velez, to actual risk of serious
bodily injury or that she was deprived of her freedom to leave
her apartment.
Appellant’s Brief at 3.
In reviewing the sufficiency of the evidence, our standard of review is
as follows:
The standard of review for a challenge to the sufficiency of
the evidence is to determine whether, when viewed in a
light most favorable to the verdict winner, the evidence at
trial and all reasonable inferences therefrom is sufficient
for the trier of fact to find that each element of the crimes
charged is established beyond a reasonable doubt. The
Commonwealth may sustain its burden of proving every
element beyond a reasonable doubt by means of wholly
circumstantial evidence.
The facts and circumstances established by the
Commonwealth need not preclude every possibility of
innocence. Any doubt raised as to the accused's guilt is to
be resolved by the fact-finder. As an appellate court, we
do not assess credibility nor do we assign weight to any of
the testimony of record. Therefore, we will not disturb the
verdict unless the evidence is so weak and inconclusive
that as a matter of law no probability of fact may be drawn
from the combined circumstances.
Commonwealth v. Vogelsong, 90 A.3d 717, 719 (Pa. Super. 2014)
(citations and quotations omitted).
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J. S10027/17
In his first issue, challenging his conviction for Endangering the
Welfare of a Child, Appellant presents two distinct arguments. First,
Appellant avers that he did not meet the required definition of a “person
supervising the welfare of a child” because the evidence at trial showed
Appellant “was merely present in [the children’s] apartment in the role as
the mother’s boyfriend” and that Appellant and the Victim Children had
“virtually no relationship at all.” Appellant’s Brief at 15.
The Honorable Diana L. Anhalt has authored a comprehensive,
thorough, and well-reasoned Opinion, citing to the record and relevant case
law in addressing Appellant’s claims. After a careful review of the parties’
arguments, and the record, we affirm on the basis of that Opinion, which
held that Appellant met the definition of a “person supervising the welfare of
a child” because he voluntarily resided with the Victim Children for nearly a
year and took on an active role helping with the Victim Children including
driving them to school, preparing meals for them, and assisting with
schoolwork. Trial Court Opinion, filed 6/2/16, at 7-9.
Second, Appellant avers that, because the Victim Children were
“merely bystanders” to his assault on their mother, his actions did not
endanger their welfare. Appellant’s Brief at 16. Judge Anhalt’s Opinion
includes a comprehensive, thorough, and well-reasoned discussion of this
claim, with citations to the record and relevant case law. After a careful
review of the parties’ arguments, and the record, we affirm on the basis of
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J. S10027/17
that Opinion, which found that Appellant placed the Victim Children “in a
situation that threatened their physical or psychological welfare” and
ultimately traumatized the Victim Children when he barricaded them in the
apartment, assaulted their mother in their presence, and referred to the
children as “motherfuckers” and threatened to kill them when they
attempted to help their mother. Trial Court Opinion, filed 6/2/16, at 9-11.
In his second issue, Appellant challenges his conviction for Unlawful
Restraint on the grounds that “the Commonwealth failed to prove that
[A]ppellant exposed [Victim Mother] to a risk of serious bodily injury or that
[Victim Mother] was deprived of her freedom to leave her apartment[.]”
Appellant’s Brief at 17.
Judge Anhalt’s Opinion includes a comprehensive, thorough, and well-
reasoned discussion of this claim, with citations to the record and relevant
case law. After a careful review of the parties’ arguments, and the record,
we affirm on the basis of that Opinion, which found that Appellant (i)
detained Victim Mother against her will by physically restraining her,
threatening her and her children, and barricading the door; and (ii) exposed
Victim Mother to the risk of serious bodily injury when he “spat in her face,
smacked her, and tried to silence her screams by holding a pillow over her
face, holding his hands over her mouth and nose, shoving a washcloth in her
mouth, and choking her.” Trial Court Opinion, filed 7/20/16, at 11-12.
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The parties are directed to attach a copy of the trial court’s June 2,
2016 Opinion to all future filings.
Judgment of Sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/17/2017
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. --~· .··:<·=·~---- ·. ·=.
Circulated 01/30/2017 10:13 AM
IN THE COURTOF COMMON PLEAS FILED
FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
TRIAL DIVISION - CRIMINALSECTION JUL 2 O 2016
Appeals/PostTrial
Office of JudicialRecords
COMMONWEALTHOF PENNSYLVANIA
v. CP-51-CR-0005197-2014
DWAYNE GOODEN
OPINION
ANHALT,J. July 20, 2016
OVERVIEWAND PROCEDURALHISTORY
On October 23, 2015, a jury found Dwayne Gooden (hereinafter "Appellant") guilty of
Unlawful Restraint under 18 Pa.C.S.A. § 2902(a)(l), Simple Assault under 18 Pa.CS.A.§
270l(a), and Endangering the Welfare of a Child under 18 Pa.C.S.A. § 4304(a)(l). On January 7,
2016, this Court sentenced Appellant to five to ten years of incarceration to run consecutively to
any sentence currently being served.
Appellant filed a timely notice of appeal on February 1, 2016. On March 15, 2016,
Appellant filed both a Statement of Errors Complained of on Appeal and a Petition for Extension
of Time to File a Supplemental Statement of Errors Complained of on Appeal upon Receipt of
the Notes of Testimony. On June 2, 2016, Appellant filed a Supplemental Statement of Errors
Complained of on Appeal. Appellant raises the following arguments on appeal:
a. The evidence was insufficient to support a conviction for endangering the welfare of
a child where the Commonwealth failed to present evidence that Appellant was a
parent, guardian, or person supervising the welfare of any of the complainant's
children, and therefore he did not violate any duty of care, protection, or support.
b. The evidence was insufficient to support a conviction for endangering the welfare of
a child where the evidence failed to establish that the welfare of any child was
endangered during the alleged incident between Appellant and the complainant,
Zoraya Velez. CP-51-CR-0005197-2014 Comrn.
V. Gooden, Dwayne
Opinion
I II !Im 11111111 11111111
7476302241
j !
c. The evidence was insufficient to support a conviction for unlawful restraint of Zoraya
Velez where the Commonwealth failed to establish that she was deprived of her
freedom to leave the apartment or that she was placed in danger of suffering serious
bodily injury.
FACTS
On March 30, 2014, around 5:30 a.rn., Philadelphia Housing Authority Police Officer
Matthew Farnan received a radio call to respond to a domestic incident at 2411 North l l " Street,
Apartment 703. Notes of Testimony (N.T.) 10/22/15 at 48-49. When Officer Farnan and his
partner arrived at the residence, they knocked and received no response. Id. at 50. After knocking
harder, Officer Farnan heard a "rumbling" inside the apartment and could hear that someone was
awake and moving around inside. Id. at 50-51. The officers knocked harder, hearing more
movement and "what sounded like a yelp, like a scream ... " Id. at 51. After hearing more yelps
and movement inside, the officers decided to forcibly open the locked door and called for
backup. Id. at 51-52.
Several additional officers responded, including Officer Vandell Cook, who heard "gut
screams to the point where [she was] scared of what was going on on the other side of that door."
Id. at 205. While trying to open the door, multiple officers testified to hearing a feminine-
sounding voice say something through the door along the lines of, "[i]t's fine, he's gone." Id. at
51, 209; N. T. 10/23/15 at 14. In order to gain entry, it took the efforts of seven or eight officers
kicking the door while one officer used a crowbar to pry the door open. N.T. 10/22/15 at 54, 55,
67-68; N.T. 10/23/15 at 25-26. When the officers entered the apartment, they observed that
multiple bins, boxes, and a metal bedframe had been placed in front of the entry door. N.T.
10/22/15 at 5 5. They saw a woman laying on the floor in a comer of the apartment, a man
standing in the center of the apartment, and three children in a bedroom. Id. at 56, 70, 71, 208;
N.T. 10/23/15 at 16, 27.
2
. ·.·.·-:-~:. ·•··. -l - . I I
Officer Farnan testified that the woman, complainant Zoraya Velez, was hysterically
crying and had ripped clothing, a bloody lip, lacerations on her face and hands, and bruises on
her arms and neck. N.T. 10/22/15 at 56, 57? 72. Officer Cook similarly testified that she was
"cowering and balled up in the comer," bloody and shaking uncontrollably, and seemingly in
shock. Id. at 208-09. Officer Cook also testified that the complainant's bra and breast were
exposed as a result of her ripped tank-top, so the officer covered her with a towel or sheet. Id at
222. Officer Cook then held the complainant in her lap while she cried and told the officer that
she thought she was going to die. Id. at 208-09.
Meanwhile, officers ordered Appellant to get on the ground, but he refused. N.T.
10/23/15 at 27. So, Officer Dennis Stevens held Appellant at gunpoint in order to restrain him, at
which point the officers took him into custody. Id They brought Appellant in for booking, while
Officers Cook and Lankford took the complainant to Temple University Hospital. N .T. 10/22/15
at 58, 223; N.T. 10/23/15 at 65-66.
The complainant and her son, Zackarie, each testified as to what they witnessed inside the
apartment while the police were trying to gain entry. N.T. 10/22/15 at 73, 109. At the time of this
incident, Zackarie was 11 or 12 years old and had been living at his mother's apartment with his
mother, his two younger brothers, and his mother's ex-boyfriend, Appellant. Id. at 75, 77.
Zackarie testified that Appellant had been living with them for anywhere between six and nine
months prior to March 30, 2014. Id. at 88. Zackarie also testified that he liked Appellant and
considered him a friend, and that Appellant sometimes drove Zackarie to school, cooked
Zackarie dinner, and generally helped the complainant and the children around the house. Id. at
89-90.
3
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Zackarie testified that on the morning of March 30, 2014, he was awoken by the police
knocking on the door. Id. at 77- 78. At that point, he witnessed Appellant run out of the master
bedroom and yell to the police in a high-pitched voice, "[h]e's running down the steps." Id.
Zackarie explained that, although placing bins in front of the door was something the family did
every night, Appellant added additional objects that morning, including a metal bar from the
door and a box spring, so that the police could not open the door. id. at 82-83. While the officers
were banging on the door, Zackaries younger brother tried to remove the objects blocking the
door, but Appellant said, "[g]et back in your room." Id. at 83. Afterward, Zackarie recalled
Appellant telling the complainant to "shut up" before dragging her across the apartment. Id. at
80-81. Then, Appellant said he was going to try to jump out of the window, even though the
apartment's windows were barred, and told the children to return to their rooms and not to open
the front door. Id. at 81. When the police entered the apartment, Zackarie recalled seeing his
mother bloody and in a "hysterical" condition, screaming that Appellant had held her hostage
and had not let her leave the apartment. id. at 79, 104. Zackarie testified to feeling "traumatized"
by the incident and "confused" by his mother's bloody 1i p. Id. at 85.
The complainant testified that Appellant was her boyfriend at the time of the incident,
and that he stayed with her and her sons on and off between April 2013 and March 3 0, 2014. Id.
at 110-11, 140. She explained that they were supportive of each other and that Appellant helped
care for her children, including cooking for them and helping them with their schoolwork. Id. at
139-40. She testified that she became afraid of Appellant after learning that he was in fugitive
status. N.T. 10/22/15 at 141. Indeed, in January 2014, Appellant was convicted of possessing a
firearm in violation of 18 Pa.C.S.A. § 6105(a), Docket Number CP-51-CR-0000648-2012, but
had failed to appear for sentencing in February 2014.
4
.. - ~.-.-.--- - ·. ·.·.. -:,
The complainant stated that on the afternoon of March 29, 2014, her three sons left the
apartment to stay overnight with their father. Id. at 114. Later that day, Appellant questioned the
complainant about her finances and expressed a need for money. Id. at 115. He spat in her face,
smacked her, and told her he was going to kill her. Id at 116-17. Fearing for her safety, she
called her children's father and asked him to bring the children back that evening. Id. at 115. She
explained that she could not ask her ex-husband for help or tell him to call the police because
Appellant was holding the phone while she spoke. Id. at 146. After the children arrived home,
Appellant demanded child support money that the complainant had received from her ex-
husband and had left at a neighbor's house. Id. at 147, 118. They left the apartment to get the
money, and, when they arrived home, Appellant kept the complainant's keys and cell phone. Id.
at 118. When they went to bed, Appellant watched the complainant the entire night and told her
that she was not going to go anywhere or call anyone, and that be was going to hold on to her
phone and keys. Id. at 118, 120.
She lay awake the entire night as Appellant watched her, and he did not fall asleep until
about 5:00 a.m. Id. at 120-21. At that point, she grabbed her phone from Appellant and called the
front desk of her building because she wanted Appellant escorted out of her apartment. Id at
121. When police knocked on the door, Appellant awoke and said angrily, "[y]ou called the
cops?" Id. at 122. He then went to the door and placed a bedfrarne where the bins were already
positioned. Id. at 125. Appellant then returned to the bedroom and grabbed the complainant,
telling her to be quiet so that the police would leave. Id. at 122. She yelled for help, prompting
Appellant to push her down on the bed and hold a pillow over her face. Id. She tried to fight back
and scream for help, but began to lose air. Id. Eventually, she was able to break free and tried to
run, but Appellant grabbed her and got on top of her, shoving his hand on her mouth and nose in
5
order to silence her. Id. at 122-23. Then, the complainant bit Appellant and he bit her back. Id. at
123. Next, he shoved a dirty, wet washcloth into her mouth and put his other hand on her nose
while holding her down on the floor with his body and elbows. Id.
She kept trying to scream, and called for her sons to open the front door, but Appellant
told them something along the lines of, "(g]et out of here, you motherfuckers. Don't open the
door. Go back to your bedroom or I'll kill all of you." Id at 124-25, 190-91. The children ran to
their rooms and Appellant took the complainant by the throat with both hands, lifted her up in the
air, and threw her down on the bed, continuing to choke her with both hands. Id. at 126. She
became unable to breathe and, believing she was going to die, began to pray to God. Id. at 127.
Appellant then told her he was going to kill her "because if he was going back to jail, it was
going to be for something worth it." Id. When the police finally broke through the door,
Appellant released the complainant and said, "[rn]y mom will bail me out, you bitch. And I will
come back and kill you." Id. She recalled being in pain and feeling blood gushing from
somewhere on her face. Id. at 129. After police officers took Appellant into custody, the
complainant was escorted by police to Temple University Hospital where she received three
stitches in her bottom lip. Id. at 129-30; N.T. 10/23/15 at 65-66. She also had abrasions on her
chest, right hand, left hand, and neck, along with bruising and pain to her right knee and neck.
N.T. I 0/23/15 at 66.
The complainant testified that she then went to the Central Detective Division to give a
statement and be photographed. N.T. 10/22/15 at 132-33. She had other injuries that were not
visible in the pictures taken by detectives, including bruising that began the next day and bumps
on her head that were concealed by her hair. Id. at 136. In spite of this, she was unsure whether
to press charges against Appellant because of their relationship, even though this was not the first
6
..·.·--.· -
-. --:-:~
time he had been violent towards her. Id. at 138, 199. She ultimately decided that she was "sick
of going through this" and was no longer afraid to pursue the case because she felt that she
would be properly defended. Id. at 199.
DISCUSSION
Each issue raised on appeal concerns the sufficiency of the evidence supporting
Appellant's convictions. A challenge to the sufficiency of the evidence presents a question of
law and is subject to plenary review. Commonwealth v. Hitcho, 123 A.3d 731, 746 (Pa. 2015).
The test is whether the evidence admitted at trial supports the jury's finding of all the elements of
the offense beyond a reasonable doubt. Id The entire trial record must be evaluated and all
evidence received must be considered. Commonwealth v. Woods, 638 A.2d 1013, 1015
(Pa.Super. 1994) (citing Commonwealth v. Price, 610 A.2d 488 (Pa.Super. 1992)). In reviewing
the sufficiency of the evidence, all reasonable inferences must be drawn in favor of the
Commonwealth as the verdict winner. Commonwealth v, Mitchell, 902 A.2d 430, 444 (Pa. 2006),
cert. denied, 549 U.S. 1169 (2007).
A. The evidence was sufficient to support a conviction for endangering the welfare of a
child because Appellant owed a duty of care or protection to the children.
Appellant's first contention is that the evidence was insufficient to support his conviction
for endangering the welfare of a child, arguing that the Commonwealth did not present evidence
that showed Appellant was a parent, guardian, or person supervising the welfare of the children.
Thus, Appellant argues, he could not have violated any duty of care, protection, or support to the
. children. Under the statute, "[a] parent, guardian or other person supervising the welfare of a
child under 18 years of age ... 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.A. § 4304(a)(l ).
7
There is no evidence that Appellant was either a parent or legal guardian of any of the
children. Thus, in order to convict him of endangering the welfare of a child, the finder of fact
would need to conclude that he was a "person supervising the welfare of a child." The statute
defines "person supervising the welfare of a child" as "a person other than a parent or guardian
that provides care, education, training or control of a child." 18 Pa.C.S.A. § 4304(a)(3). This
supervision is not limited to certain forms, such as direct or actual supervision, but instead
"encompasses all forms of supervision of a child's welfare." Commonwealth v. Lynn, 114 A.3d
796, 824 (Pa. 2015). Furthermore, the statute is "protective in nature, and must be construed to
effectuate its broad purpose of sheltering children from harm." Id. at 818 (citing Commonwealth
v. Mack, 359 A.2d 770, 772 (Pa. 1976)).
The Superior Court previously held that an adult who voluntarily resides with a minor
child and violates a duty of care, protection, or support is within the scope of 18 Pa.C.S.A. §
4304(a)(l). Commonwealth v. Brown, 721 A.2d 1105, 1107-08 (Pa.Super. 1998) (citing
Commonwealth v. Kellam, 719 A.2d 792, 796 (Pa.Super. 1998) ("[\\T)henever a person is placed
in control and supervision of a child, that person has assumed such a status relationship to the
child so as to impose a duty to act.")). 1 In Brown, the Court reviewed a challenge to the
sufficiency of the evidence supporting a conviction for the child endangerment statute. Brown,
721 A.2d at 1108. The Court upheld the conviction where the defendant's relationship with the
child consisted only of periodic babysitting, diaper changing, and playing with the child. Id.
1 "Deciding that adults who share a residence with a child not in their legal custody are not responsible for the ·
welfare of that child would undermine both the language and application of the endangering statute. Under such a
limited reading, stepparents, grandparents, adult siblings, adult roommates, fife partners, and others couldnot be
prosecuted for endangering the welfare of a child. Our courts should not and have not limited the scope of the statute
to exclude this broad and diverse category of persons .... By stating that such persons are contemplated within the
scope of the statute, we do not hold that all adults residing with minor children are automatically criminally liable
under this law, but rather that, as a matter of law, they are not outside of the scope of the statute. In order to establish
the second element of the crime, the prosecution must prove that the adult had a duty of care, protection, or support
of that child which they violated." Brown, 721 A.2d at 1107-08 (Pa.Super, 1998).
8
Thus, this level of interaction with the child was sufficient to deem the defendant a "person
supervising the welfare of a child." 18 Pa.C.S.A. § 43 04(a)(l).
In the present case, Appellant's relationship with the complainant's children was equally
close, if not closer, to that described in Brown. Zackarie, the complainant's son, testified that
Appellant had been living at the apartment with them for somewhere between six and nine
months prior to March 30, 2014, and that he considered Appellant a friend. N.T. 10/22/15 at 88-
90. Zackarie also testified that Appellant helped his mother around the house, including driving
the boys to school and cooking dinner. Id. at 89-90. Likewise, the complainant testified that
Appellant was her boyfriend at the time of the incident, and that he stayed with her and her sons
periodically between April 2013 and March 30, 2014. Id. at 110-11, 140. She also stated that
Appellant helped her with her children, including cooking for them and helping them with their
schoolwork. Id. at 139-40. Appellant's interaction with the complainant's children clearly went
well beyond that of the babysitting, diaper changing, and playing as described in Brown. 72)
A.2d at 1108. Thus, the evidence was sufficient for the jury to find that Appellant was a "person
supervising the welfare of a child." 18 Pa.C.S.A. § 4304(a)(l).
B. The evidence was sufficient to support a conviction for endangering the welfare of a
child because the welfare of the children was endangered during the incident
between Appellant and the complainant.
Appellant next argues that the evidence was insufficient to support a conviction for
endangering the welfare of a child because the evidence did not establish that any child's welfare
was endangered during the incident between himself and the complainant. This argument, too,
lacks merit. The statute does not require actual physical injury to a child. Commonwealth v.
Wallace, 817 A.2d 485, 491 (Pa.Super. 2002). Nor does it require that a child be in "imminent
threat of physical harm." Id. Instead, the accused must be aware that his violation of his duty of
9
care or protection to the child is practically certain to result in the endangerment of the child's
-
welfare. Id. at 492.
The Superior Court has established three elements that must be present to prove this
element of the statute: the accused (l) is aware of his duty to protect the child; (2) is aware that
the child is in circumstances that threaten the child's physical or psychological wellbeing; and
(3) has either failed to act or has taken actions "so lame or meager that such actions cannot
reasonably be expected to protect the child's welfare." Commonwealth v. Retkofsky, 860 A.2d
1098, 1099-1100 (Pa.Super. 2004) (citing Wallace, 817 A.2d at 490-91).
Applying these three elements to the present case, it is clear that Appellant knowingly
endangered the welfare of the children. First, Appellant was aware that he had a duty to protect
the children. Given that he lived at their apartment, prepared their meals, and drove them to
school, it is implausible that he did not know of this duty.
Second, Appellant was aware that he placed the children in a situation that threatened
their physical or psychological welfare. By staying at the apartment as a fugitive, as well as
physically and verbally abusing their mother, Appellant created a dangerous environment in the
apartment. Id at 124-27; N.T. 10/23/15 at 65. Furthermore, when the police arrived in response
to the complainant's phone call, Appellant made a deliberate effort to keep the police out by
barricading the door with objects, speaking in a feminine voice to convince the police that the
situation was resolved, silencing the complainant's screams for help by beating her, and telling
the children not to open the door. N.T. 10/22/15 at 51, 77-78, 81, 122-23, 125, 209. In addition,
he called her children "motherfuckers" and threatened to kill them if they did not return to their
bedrooms. Id at 124-25, 190-91. Although none of the children were physically injured,
Zackarie testified to feeling "confused" and "traumatized" by the incident, especially after seeing
10
his mother bleeding and hysterical. Id. at 85. Accordingly, it is clear that Appellant understood
that he was jeopardizing the children's physical and psychological wellbeing. Retkofsky, 860
A.2d at 1099-1100.
As to the third element, Appellant did not take any actions to protect the children's
welfare. Instead, he created a dangerous situation in the apartment and was a physical and
emotional threat to the children and their mother. And by making efforts to keep the police out of
the apartment, Appellant exacerbated the potential danger of the situation. N.T. 10/22/15 at 127.
C. The evidence was sufficient to support a conviction for unlawful restraint because
the complainant was deprived of her freedom to leave the apartment and was
exposed to the risk of serious bodily injury.
The unlawful restraint statute requires that a person knowingly restrain another
"unlawfully in circumstances exposing [her] to risk of serious bodily injury." 18 Pa.C.S.A.
§2902(a)(l ). A defendant must "put another in actual danger of serious bodily injury."
Commonwealth v. Schilling, 431 A.2d 1088, 1091-92 (Pa.Super. 1981). Appellant argues that the
evidence did not sufficiently establish that the complainant was deprived of her freedom to leave
the apartment or that she was placed in danger of suffering serious bodily injury.
In Commonwealth v. Moody, 441 A.2d 371, 374 (Pa.Super. 1982), the Superior Court
affirmed a conviction for unlawful restraint where the victim "was forcibly detained ... against
her will, was threatened by [the defendant], struck by him, and ... forcibly resisted his actions."
The Superior Court held that based upon this evidence, the trial court "could have reasonably
inferred that [the victim] was being restrained . .. " Id.
Similar to thefacts described in Moody, Appellant in the present case detained the
complainant against her will, threatened her, and struck her while she resisted his actions. He
also told her she could not leave, following her around the apartment and holding her keys and
11
... -,', ~'
phone. N. T. 10/22/15 at 118, 120. Furthermore, when the police arrived, he barricaded the door
and told the complainant's sons not to remove anything or open the door. Id. at 82-83. Under
these circumstances, Appellant clearly restrained the complainant and deprived her of her
freedom to leave the apartment.
The evidence also sufficiently demonstrated that Appellant exposed the complainant to
the risk of serious bodily injury. He told her multiple times that he was going to kill her and her
sons. Id at 116-17, 124-25, 127 190-91. He struck and assaulted her in various ways, causing
lacerations on her lip and bruising on her neck. He spat in her face, smacked her, and tried to
silence her screams by holding a pillow over her face, holding his hands over her mouth and
nose, shoving a washcloth in her mouth.iand choking her. Id at 116-17, 122-23, 126-27.2
2 Although Appellant may argue that he could not have detained the complainant in her own apartment, the
Superior Court previously struck down a similar argument in In re M.G., 916 A.2d 1179, 1182 (Pa.Super, 2007). In
that case, the Court rejected the defendant's argument that because the incident occurred in the victim's own
bedroom, he could not be convicted of unlawful restraint. Id "Whether in her own home or elsewhere, [the
defendant] restrained (the victim] and kept her in an area where she did not wish to remain." Id. (citing
Commonwealth v, Prince, 719 A.2d 1086, 1089 (Pa.Super, 1998) (finding that the evidence supported unlawful
restraint conviction where the victim was attacked in her own home and where she stayed near the defendant all
night out of fear for her safety)).
12
I .
CONCLUSION
After review of the applicable statutes, testimony, and case law, there is sufficient
evidence to find Appellant guilty of all offenses. Accordingly, the trial court's decision should be
affirmed.
BY THE COURT:
DATE: JULY 20, 2016
f)~
7 DIANA L. ANHALT, J.
13
Com. v. Gooden, D.
Combined Opinion