Opinion
994 EDA 2023 J-S06005-24
04-12-2024
COMMONWEALTH OF PENNSYLVANIA v. JAMES SANDERS Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
Appeal from the Judgment of Sentence Entered February 3, 2023 In the Court of Common Pleas of Montgomery County Criminal Division at No(s): CP-46-CR-0000944-2022
BEFORE: DUBOW, J., McLAUGHLIN, J., and SULLIVAN, J.
MEMORANDUM
DUBOW, J.
Appellant, James Sanders, appeals from the February 3, 2023 judgment of sentence of 9 to 23 months of incarceration entered in the Montgomery County Court of Common Pleas following his non-jury trial conviction of one count each of Endangering the Welfare of a Child ("EWOC") and one count of Simple Assault. Appellant challenges certain evidentiary rulings and the sufficiency of the evidence. After careful review, we affirm.
18 Pa.C.S. §§ 4304(a)(1) and 2701(a)(1), respectively.
The relevant facts and procedural history are as follows. Appellant and K.J. ("Victim") are parents to two minor children, A.S. and J.S. On January 29, 2022, at approximately 10:55 AM, 911 dispatch in Stowe, Montgomery County, received a call from Victim reporting that Appellant, who was reportedly intoxicated, was beating Victim and A.S. inside their home. Immediately prior to Victim's 911 call, 911 dispatch received a call from Victim's neighbor who was listening to the altercation taking place in Victim's home and narrating the events as they were occurring.
In January 2022, A.S. was 13 years old and J.S. was seven years old.
West Pottsgrove Township Police Officer Adam Zieske responded to the scene at 10:59 AM. When he arrived, he began to walk towards the residence, when Victim, who was seated in the front seat of her vehicle parked on the street, flagged him down. A.S. was seated in the vehicle with Victim;
Appellant was inside the residence with J.S.
As Officer Zieske approached the vehicle, he could hear Appellant yelling and he saw Appellant inside the residence crouched down behind the front screen door.
Victim appeared "clearly upset" to Officer Zieske, but she was not crying. "Talking quickly and in an excited manner[,]" Victim told Officer Zieske that she had called 911 because she had had a physical altercation with Appellant. She reported that when Appellant woke up that morning he was intoxicated from the night before. She further reported that she and Appellant began to argue when Appellant demanded that Victim take him to the store, but she refused. Victim told Officer Zieske that Appellant grabbed her, head-butted her, and threw her around the bedroom. When Victim, holding J.S., tried to leave the residence, Appellant pushed them down the stairs. Victim reported that A.S. heard the altercation and yelled to Appellant "this is why nobody wants you here," at which point Appellant grabbed A.S. and began to throw her around the house.
N.T. Trial, 10/11/22, at 23.
Id.
Id. at 28-29.
Officer Zieske noticed that A.S. was "visibly upset[,]" with a "flushed red" face and "swelling in the eye area." A.S. was not crying, "but very clearly seemed to be someone who had just - was just crying, watery eyes, very upset."
Id. at 34-35.
Id. at 28-29.
After speaking with Victim, Officer Zieske went to the residence to speak with Appellant, who was still inside with J.S., through the front screen door. Appellant refused to let Officer Zieske enter the residence and refused to exit the residence at Officer Zieske's request. Officer Zieske attempted to open the screen door, but it was locked. Appellant then closed and locked the deadbolt on the front door leaving Officer Zieske outside. Officer Zieske obtained a key to the door from Victim and entered the home. In order to enter, Officer Zieske had to rip open the screen door, which was locked, and damage molding on the door frame to push open the latched chain lock.
Once inside the residence, Officer Zieske could hear noises that sounded like a child. Officer Zieske directed Appellant to come down to the first floor of the residence numerous times; Appellant did not comply, instead remaining upstairs in a room with J.S. Over the course of a few minutes, Appellant slowly moved out of the room towards the stairwell, at which point Officer Zieske apprehended him. Appellant was "very angry, yelling, unorganized."He smelled strongly of alcohol.
Id. at 33.
The Commonwealth charged Appellant with numerous offenses pertaining to Victim, A.S., and J.S. arising from these events.
The Commonwealth withdrew the charges pertaining to J.S. prior to trial.
On October 11, 2022, Appellant proceeded to a bench trial at which the Commonwealth presented the testimony of Officer Zieske. Relevant to the instant appeal, during Officer Ziekse's testimony, Appellant objected on confrontation and hearsay grounds to Officer Zieske testifying regarding statements made to him by Victim. The Commonwealth argued that Victim's statements were admissible pursuant to the excited utterance exception to the hearsay exclusion rule. After considering, among other things, evidence that the Victim's 911 call ended at 10:59:17 AM and Officer Zieske arrived at Victim's residence and began speaking with her at 10:59 AM, and noting that it "clearly heard [Victim's] demeanor[,]" the court concluded that Victim's statements to Officer Zieske were "an appropriate exception under the excited utterance exception of the hearsay rule" and permitted Officer Zieske to testify to what Victim said to him.
Id. at 27.
Also relevant to the instant appeal, the parties stipulated to the authenticity of the recorded 911 calls made by Victim; however, Appellant objected to the admission of the recording arguing that it was hearsay. The Commonwealth argued that the call from Victim was admissible because it satisfied the present sense impression and excited utterance exceptions to the hearsay exclusion rule. The trial court overruled Appellant's objections and admitted the recordings as evidence.
Following trial, the court convicted Appellant of one count of Simple Assault pertaining to Victim and one count of EWOC pertaining to A.S. The trial court deferred sentencing pending a pre-sentence investigation.
On February 3, 2023, the court sentenced Appellant to a term of 9 to 23 months of incarceration followed by one year of probation for the EWOC conviction and a consecutive one-year term of probation for the Simple Assault conviction.
Appellant filed a timely post-sentence motion alleging that the verdict was against the weight of the evidence. On April 12, 2023, the trial court denied the motion.
This appeal followed. Both Appellant and the trial court complied with Pa.R.A.P. 1925.
Appellant raises the following issues on appeal:
1. Did the lower court err in admitting the 911 call made by [Victim] because the testimony did not fall under the exceptions to the hearsay rule of excited utterance or present sense impression?
2. Did the lower court err in allowing Officer Zieske to testify as to statements made to him by [Victim] because they were testimonial, which is a violation of his right to confrontation, and the testimony did not fall under the excited utterance exception to the rule against hearsay?
3. Was there sufficient evidence presented at trial to sustain a guilty verdict for count seven of the information, [EWOC], because it was not proven beyond a reasonable doubt that the victim was under eighteen years old or that [] Appellant knowingly endangered her welfare?Appellant's Brief at 3.
A.
In his first two issues, Appellant challenges the trial court's admission of the Victim's recorded 911 call and her statements to Officer Zieske. It is axiomatic that the "admission of evidence is within the sound discretion of the trial court and will be reversed only upon a showing that the trial court clearly abused its discretion." Commonwealth v. Shelton, 170 A.3d 549, 552 (Pa. Super. 2017) (citation omitted). We will not find an abuse of discretion unless the "ruling reflects manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of support to be clearly erroneous." Id. (citation omitted). Where "the trial court indicated the reason for its decision to admit [the evidence], our scope of review is limited to an examination of the stated reason." Commonwealth v. Minerd, 753 A.2d 225, 229 (Pa. 2000).
I.
Appellant first asserts that the trial court abused its discretion in admitting the Victim's recorded 911 call as evidence. Appellant's Brief at 15-19. He argues that Victim's statement in the 911 call was hearsay and should not have been admitted as either an excited utterance or a present sense impression because the Commonwealth did not present any direct, independent evidence corroborating the occurrence of an assault. Id. at 18-19.
The Honorable Risa Vetri Ferman has authored a comprehensive, thorough, and well-reasoned opinion, including a discussion of relevant case law, to explain why the trial court, in its discretion, overruled Appellant's hearsay objection. See Trial Ct. Op., 6/15/23, at 6-9 (concluding that: (1) the 911 recording satisfied the excited utterance exception because Victim was the victim of a startling event and, while the event was ongoing and while under duress, and without time to reflect or consult with others, provided spontaneous statements describing the event; and (2) the 911 recording satisfied the present sense exception because the Victim gave the statement contemporaneously with the assault, with no time for reflection). After a thorough review of the relevant authority, record, the briefs of the parties, and the trial court's opinion, we discern no abuse of discretion. We, thus, affirm on the basis of the trial court's June 15, 2023 opinion.
II.
Appellant next claims that the court abused its discretion in permitting Officer Zieske to testify regarding the statements Victim made to him. Appellant's Brief at 20-24. He argues that this testimony is hearsay that fails to satisfy the excited utterance exception because it was testimonial in nature and the Commonwealth presented no direct evidence to corroborate it. Id. at 21-22. He asserts that the "statement may have appeared to have been spontaneous, but it was obvious from the setting that [Victim] expected any information given to the officer to be accusatory" because Victim was sitting in her car while Appellant was inside the residence when Officer Zieske arrived. Id. at 22.
Bootstrapping his confrontation clause claim onto his hearsay argument, Appellant asserts that "the testimonial nature of [Victim's] statement required that she be present at the time of trial for confrontation and cross[-]examination[.]" Id. at 22-23. He baldly claims that Victim failed to appear at trial because she understood "the accusatory nature of the statement she made to the police officer." Id. at 23. He avers that the Victim "clearly knew" her statement would be "used by police against [Appellant], and her absence from trial precluded him from confronting her on the truthfulness of her statement and her purpose and motivation for making it." Id.
The Honorable Risa Vetri Ferman has authored a comprehensive, thorough, and well-reasoned opinion, including a discussion of relevant case law, to explain why the trial court, in its discretion, overruled Appellant's hearsay objection. See Trial Ct. Op., 6/15/23, at 9-15 (concluding that: (1) Victim's statements to Officer Zieske were excited utterances because: (a) Victim initiated the statements; (b) they were spontaneous and voluntary and not in response to questioning; (c) Victim was clearly upset and talking in a quick and excited manner when making them; (d) Victim made the statements near in both place and time to the assault while Appellant was still yelling inside the residence with J.S.; and (e) Victim's neighbor's 911 call corroborated the events of the assault; and (2) the admission of Victim's statements did not violate Appellant's right to confrontation because Victim made the spontaneous, unsolicited statements for the purpose of enabling police assistance to meet an ongoing emergency and not in response to any questions posed by the officer or for use at a later trial). After a thorough review of the relevant authority, the record, the briefs of the parties, and the trial court's opinion, we discern no abuse of discretion. We, thus, affirm on the basis of the trial court's June 15, 2023 opinion.
B.
In his final issue, Appellant challenges the sufficiency of the evidence in support of his EWOC conviction. Appellant's Brief at 25-27. In particular, Appellant claims that the Commonwealth failed to prove that he knowingly endangered A.S.'s welfare because it did not present evidence that she sustained any injuries or sought medical intervention. Id. at 27. In addition, he argues that the Commonwealth failed to present evidence of the nature of the "interpersonal relationships between [Victim and A.S.] and [Appellant]" and that "the lack of familiarity with any of the parties [prevented] any ability to evaluate or contrast any observations of A.S." Id. Appellant concludes that the Commonwealth presented insufficient evidence to establish that any injuries resulted from the incident or that he placed A.S. in circumstances that threatened her welfare. Id.
Appellant has not presented any argument in support of the claim that the Commonwealth failed to prove that A.S. was under the age of 18 at the time of the incident.
When reviewing the sufficiency of the evidence, we are governed by the following standard of review:
In reviewing the sufficiency of the evidence, we must determine whether the evidence admitted at trial and all reasonable inferences drawn therefrom, viewed in the light most favorable to the Commonwealth as verdict winner, is sufficient to prove every element of the offense beyond a reasonable doubt. As an appellate court, we may not re-weigh the evidence and substitute our judgment for that of the fact-finder. Any question of doubt is for 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.Commonwealth v. Martin, 297 A.3d 424, 434 (Pa. Super. 2023) (citation omitted).
Section 4304 of the Crimes Code defines EWOC, 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).
This Court has established a three-element test for EWOC: "(1) the accused is aware of his/her duty to protect the child; (2) the accused is aware that the child is in circumstances that could threaten the child's physical or psychological welfare; and (3) the accused has either failed to act or has taken action so lame or meager that such actions cannot reasonably be expected to protect the child's welfare." Commonwealth v. Pahel, 689 A.2d 963, 964 (Pa. Super. 1997) (citation omitted).
"In reviewing [S]ection 4304, we must be aware that the legislature attempted to prohibit a broad range of conduct in order to safeguard the welfare and security of our children. Further, the common sense of the community should be considered when interpreting the language of the statute." Commonwealth v. Trippett, 932 A.2d 188, 194 (Pa. Super. 2007) (citations and quotations omitted).
The statute does not require the actual infliction of physical injury. Nor does it state a requirement that the child or children be in imminent threat of physical harm. Rather it is the awareness by the accused that his violation of his duty of care, protection and support is practically certain to result in the endangerment to [the] children's welfare, which is proscribed by the statute.Commonwealth v. Wallace, 817 A.2d 485, 491-92 (Pa. Super. 2002) (emphasis in original, quotation marks omitted), abrogated on other grounds, Commonwealth v. Howard, 257, A.3d 1217 (Pa. 2021).
Instantly, Officer Zieske's testimony established that Appellant placed his minor child, A.S., in a dangerous situation that threatened her physical and psychological welfare by knowingly "throw[ing A.S.] around the house"when A.S. attempted to break up the altercation between Appellant and Victim. From this evidence, we conclude that it was reasonable for the trial court to find that "Appellant's conduct of grabbing A.S. and throwing A.S. around while in the midst of an assault upon [Victim] demonstrates his awareness that he placed the minor child in a dangerous situation that threatened A.S.'s physical or psychological welfare." Trial Ct. Op. at 17. Accordingly, Appellant's claim that the Commonwealth failed to prove each of the elements of the offense of EWOC lacks merit.
N.T. Trial at 29.
C.
In conclusion, we find both of Appellant's evidentiary challenges and his sufficiency of the evidence claim meritless. We, thus, affirm Appellant's judgment of sentence.
Judgment of sentence affirmed. Appellant is directed to attach a copy of the trial court's June 15, 2023 opinion to any future filings.
Judgment Entered.
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