Summary
In Howard, our Supreme Court concluded that allowing a child to ride in a car-for-hire without a car seat, absent any other indicia of dangerousness, did not establish a mother knowingly endangered her child's welfare.
Summary of this case from Commonwealth v. MoralesOpinion
No. 8 WAP 2020
08-25-2021
COMMONWEALTH of Pennsylvania, Appellee v. Waylynn Marie HOWARD, Appellant
Cheryl Ann Brooks, Esq., for Amicus Curiae Defender Association of Philadelphia. Brandon Paul Ging, Jamie Tesa Schuman, Esqs., Allegheny County Public Defender's Office, for Appellant. Kevin Francis McCarthy, Michael Wayne Streily, Esqs., Allegheny County District Attorney's Office, for Appellee.
Cheryl Ann Brooks, Esq., for Amicus Curiae Defender Association of Philadelphia.
Brandon Paul Ging, Jamie Tesa Schuman, Esqs., Allegheny County Public Defender's Office, for Appellant.
Kevin Francis McCarthy, Michael Wayne Streily, Esqs., Allegheny County District Attorney's Office, for Appellee.
BAER, C.J., SAYLOR, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.
OPINION ANNOUNCING THE JUDGMENT OF THE COURT
JUSTICE TODD
In this appeal by allowance, we consider whether evidence that a parent allowed her child to ride in a car-for-hire without being restrained by a child safety seat (hereinafter, "car seat") is, without more, sufficient to support a conviction for endangering the welfare of children under 18 Pa.C.S. § 4304(a)(1). For the reasons that follow, we conclude that it was not. Accordingly, we reverse the Superior Court's decision, and vacate Appellant's conviction and judgment of sentence.
For purposes of this opinion, the term "car-for-hire" includes taxi-cabs, jitneys, and ride-share vehicles, but not rental cars in which the parent is the driver of the vehicle.
On February 15, 2017, Appellant, Waylynn Marie Howard (hereinafter, "Mother"), and her three-year-old daughter (hereinafter, "Child") were riding in a car-for-hire which was involved in a three-vehicle accident on Route 28, a state highway, near Pittsburgh. Specifically, the driver of Mother's car-for-hire rear-ended the car in front of her, which then hit another vehicle. At the time of the accident, Mother was sitting in the front passenger seat of the vehicle, and Child was sitting in the back seat, on the passenger side. There was no car seat in the vehicle, and none of the occupants were wearing seatbelts. None of the individuals involved sustained serious injuries. A police officer responded to the scene, and, based on his affidavit of probable cause, Mother was charged with reckless endangerment of another person, 18 Pa.C.S. § 2705, and endangering the welfare of a child, id. § 4304(a)(1), a misdemeanor of the first degree. At a stipulated bench trial based entirely on the affidavit of probable cause, Mother was convicted of both offenses. The trial court imposed a sentence of one year probation for Mother's conviction for endangering the welfare of a child, and no further penalty for her conviction for reckless endangerment. Mother appealed, challenging the sufficiency of the evidence to sustain both of her convictions.
Under Section 2705, a person commits the crime of reckless endangerment of another person if she "recklessly engages in conduct which places or may place another person in danger of death or serious bodily injury." 18 Pa.C.S. § 2705.
Section 4304(a)(1) provides: "(1) A parent, guardian, or other person supervising the welfare of a child under 18 years of age ... commits an offense if [s]he knowingly endangers the welfare of the child by violating a duty of care, protection or support." 18 Pa.C.S. § 4304(a)(1). On February 9, 2021, House Bill 488 was introduced, proposing an amendment to Section 4304(a) ; however, the proposed amendment does not alter the requisite mens rea for a conviction under Section 4304(a)(1).
In an unpublished memorandum opinion, a divided panel of the Superior Court reversed Mother's conviction for reckless endangerment of another person, finding her actions did not rise to the level of criminal recklessness. Commonwealth v. Howard , 1281 WDA 2018 (Pa. Super. filed Nov. 19, 2019). However, the panel affirmed Mother's conviction for endangering the welfare of a child under Section 4304(a)(1). In doing so, the panel explained that, in order to support a conviction for endangering the welfare of children, the Commonwealth must establish that the accused:
(1) is aware of his or her duty to protect the child; (2) is aware that the child is in circumstances that threaten the child's physical or psychological welfare; and (3) has either failed to act or has taken actions so lame and meager that such actions cannot reasonably be expected to protect the child's physical or psychological welfare.
Id. at 3-4 (quoting Commonwealth v. Foster , 764 A.2d 1076, 1082 (Pa. Super. 2000).
This three-part test was first set forth by the Superior Court in Commonwealth v. Cardwell, 357 Pa.Super. 38, 515 A.2d 311 (1986). Without specifically analyzing subsections (i) and (ii) of Section 302(b)(2), discussed infra , the court in Cardwell determined that the evidence was sufficient to support the mother's conviction under Section 4304(a)(2) because she was aware that her husband had sexually abused her child over a period of time, but took only feeble and ineffectual actions to protect the child, such as writing him two letters in which she stated such behavior would no longer be tolerated.
The panel concluded that the evidence supported Mother's conviction under Section 4304(a)(1) because, while the vehicle did not have an appropriate car seat, Mother "knowingly failed to fasten her daughter's seatbelt," despite an awareness that her conduct could result in harm to Child, as evidenced by the fact that she told the responding police officer that "she had feared that her daughter would fly from the back seat and hit the windshield." Id. at 4. The panel specifically rejected Mother's argument that, pursuant to 18 Pa.C.S. § 302(b)(2)(ii), in order to satisfy the culpability requirement of Section 4304(a)(1), Mother "would have had to be ‘practically certain’ that a car accident would occur in order to endanger her daughter's welfare." Id. at 4-5. The panel held that a conviction under Section 4304(a)(1) does not require that a child be in imminent threat of physical harm, but "only requires proof of circumstances that could threaten the child's physical or psychological welfare." Id. at 5 (quoting Commonwealth v. Martir , 712 A.2d 327, 330 (Pa. Super. 1998) ) (emphasis original).
As Mother notes in her brief, see Mother's Brief at 51 n.18, it is not clear from the record whether the car-for-hire had working seatbelts, and, if so, whether Mother fastened Child's seatbelt and Child subsequently unfastened it, or whether Mother failed to fasten Child's seatbelt it in the first instance. Regardless, the trial court based its conviction on Mother's failure to fasten Child in a car seat, not her failure to fasten Child's seatbelt. Further, Mother correctly observes that the National Highway Traffic Safety Administration recommends that seatbelts be used only on children above the age of eight, or when a child is large enough for the seatbelt to fit properly. See https://www.nhtsa.gov/equipment/car-seats-and-booster-seats. Thus, we focus our review on Mother's failure to secure Child in the appropriate car seat.
A person acts knowingly with respect to a material element of an offense when:
(i) if the element involves the nature of his conduct or the attendant circumstances, he is aware that his conduct is of that nature or that such circumstances exist; and
(ii) if the element involves a result of his conduct, he is aware that it is practically certain that his conduct will cause such a result.
18 Pa.C.S. § 302(b)(2).
Judge Carolyn Nichols authored a concurring and dissenting opinion wherein she agreed with the reversal of Mother's reckless endangerment conviction, but dissented from the affirmance of Mother's conviction for endangering the welfare of a child. Judge Nichols opined that, although the evidence arguably supported Mother's conviction, the Crimes Code is not the "appropriate tool" for punishing Mother's conduct, and Mother's judgment of sentence was too harsh. Howard , 1281 WDA 2018, at 1 (Nichols, J., dissenting). In particular, Judge Nichols observed that, under the Motor Vehicle Code, Mother would have received a less severe sentence had she been the operator of the vehicle and failed to securely fasten her daughter in a passenger restraint system. See 75 Pa.C.S. § 4581(b)(1) (failure to comply with § 4581(a), which requires the driver of a vehicle to securely fasten a child under age four, commits a summary offense and upon conviction shall be sentenced to pay a fine of $75). Judge Nichols further noted that the increased use of ride-sharing services will require parents to take a "hard look at whether to accept a ride from a driver whose vehicle does not contain an appropriate car seat." Howard , 1281 WDA 2018, at 2 (Nichols, J., dissenting).
Section 4581, titled "Restraint systems," provides:
(a) Occupant protection.
(1)(i) Except as provided under subparagraph (ii), any person who is operating a passenger car, ... and who transports a child under four years of age anywhere in the motor vehicle, including the cargo area, shall fasten such child securely in a child passenger restraint system, as provided in subsection (d).
* * *
(iii) This paragraph shall apply to all persons while they are operators of motor vehicles where a seating position is available which is equipped with a seat safety belt or other means to secure the systems or where the seating position was originally equipped with seat safety belts.
75 Pa.C.S. § 4581(a)(1)(i) and(iii).
Mother filed a petition for allowance of appeal, and we granted review to consider whether Mother's conduct in allowing Child to ride in a car-for-hire without using a car seat was sufficient to support a conviction for knowingly endangering the welfare of a child under 18 Pa.C.S. § 4304(a)(1), when there was no indication that the driver of the vehicle was driving in an unsafe manner.
We recognize that language of our order granting review referred to Mother's act of putting Child "in the backseat of a car-for-hire without a seatbelt or restraint system." Order, 5/11/20. However, for the reasons explained in note 5, supra , we focus our review on Mother's failure to secure Child in an appropriate car seat.
Preliminarily, the instant matter involves the interpretation of a statute, and, thus, our standard of review is de novo and our scope of review is plenary. Commonwealth v. Lynn , 631 Pa. 541, 114 A.3d 796, 817-18 (2015). It is axiomatic that, in interpreting a statute, this Court's objective is to ascertain and give effect to the intent of our General Assembly. 1 Pa.C.S. § 1921(a). The best expression of this intent is found in the statute's plain language. Cagey v. Commonwealth , 645 Pa. 268, 179 A.3d 458, 462 (2018). We may not disregard the plain language under the guise of giving effect to its spirit. 1 Pa.C.S. § 1921(b) ; Commonwealth v. Walls , 592 Pa. 557, 926 A.2d 957, 962 (2007). Only when the language of a statute is ambiguous may courts consider statutory factors to discern legislative intent. 1 Pa.C.S. § 1921(c) ; Commonwealth v. McCoy , 599 Pa. 599, 962 A.2d 1160, 1166 (2009).
As noted above, Section 4304, which derived from Section 230.4 of the Model Penal Code, provides, in part, that "[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. § 4304(a)(1). Further, as stated in the 1972 Official Comment to Section 4304, the offense of endangering the welfare of a child applies to both affirmative acts and omissions. See id. § 4304, cmt. ("This section consolidates and simplifies the various provisions concerning crimes endangering the welfare of children. The offense involves the endangering of the physical or moral welfare of a child by an act or omission in violation of legal duty even though such legal duty does not itself carry a criminal sanction.").
With respect to the required mens rea for a conviction under Section 4304, pursuant to 18 Pa.C.S. § 302, entitled "General requirements of culpability," a person acts "knowingly" with respect to a material element of an offense when,
(i) if the element involves the nature of his conduct or the attendant circumstances, he is aware that his conduct is of that nature or that such circumstances exist; and
(ii) if the element involves a result of his conduct, he is aware that it is practically certain that his conduct will cause such a result.
Id. § 302(b)(2). Section 302(b)(2) also derives from the Model Penal Code.
Mother contends that the Superior Court erred in affirming her conviction under Section 4304(a)(1) because the evidence was insufficient to establish, pursuant to 18 Pa.C.S. § 302, that she knowingly endangered the welfare of Child. She first maintains that, in determining whether a parent or guardian acts knowingly for purposes of Section 4304, courts must consider whether the parental conduct at issue offends the "common sense of the community" and the "sense of decency, propriety and the morality which most people entertain." Mother's Brief at 13 (quoting Lynn , 114 A.3d at 818 ). In arguing that her conduct did not offend the common sense of the community, Mother claims that she "faced a dilemma that many parents could face," namely, balancing the need to get her daughter home against the risks of placing her daughter in a car-for-hire without a car seat. Id. at 13. Emphasizing that there was no indication that the driver of the car-for-hire was operating the vehicle in an unsafe manner, no "warning signs" that an accident would occur, and "caselaw and national statistics show that accidents are uncommon in routine car rides," Mother submits that her decision to allow Child to ride in the vehicle without a car seat, even if mistaken in hindsight, did not offend the common sense of the community. Id.
The appellant in Lynn was a high-ranking official for an archdiocese who was convicted of endangering the welfare of children based on his placement of a priest, who had a known history of sexually abusing children, in an environment where there was a significant risk that he would reoffend. The Superior Court reversed Lynn's conviction, finding that Lynn had no direct supervision of the children he was found to have endangered. This Court reinstated Lynn's conviction, holding, inter alia , that the supervision element of Section 4304(a)(3) requires supervision of a child's welfare, but not direct supervision of the child. Although the focus of Lynn was whether the defendant supervised the children's welfare, we recognized that, in determining what conduct violates the statute, "[t]he 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." Lynn , 114 A.3d at 818 (quoting Commonwealth v. Marlin, 452 Pa. 380, 305 A.2d 14, 18 (1973) ).
Mother additionally argues that, in order to establish that she acted knowingly for purposes of Section 4304(a)(1), the Commonwealth was required to establish that she was practically certain that her conduct would result in the endangerment of Child's welfare, citing Section 302(b)(2)(ii). In this regard, Mother submits that the Superior Court has been inconsistent in its determination of the requisite mens rea for a conviction under Section 4304(a)(1), in some cases seeming to require that both subsections (i) and (ii) of Section 302(b)(2) be established, and in other cases requiring that only one of those subsections be established.
For example, in Commonwealth v. Miller , 411 Pa.Super. 33, 600 A.2d 988 (1992), the Superior Court held there was insufficient evidence to prove that a mother knowingly endangered the welfare of her child under Cardwell's tripartite test, see supra note 3, after her child, who was left unattended in an apartment, died when the apartment caught fire. The court noted that, based on a statement by the child's father, the mother reasonably believed a babysitter was watching the child. Explaining that, to be culpable under Section 4304, "parents must knowingly allow their children to be at risk with awareness of the potential consequences of their actions or failure to act," the Miller court concluded that the evidence did not establish that type of criminal intent by the mother. Id. at 992. Mother suggests the court's decision in Miller requires that both subsections (i) and (ii) of Section 302(b)(2) be established to prove intent. See Mother's Brief at 19.
Subsequently, in Commonwealth v. Wallace , 817 A.2d 485 (Pa. Super. 2002), the Superior Court held that evidence that the accused allowed his children to reside in squalid living conditions was sufficient to support a conviction under Section 4304. Significantly, although the court purported to utilize Cardwell's three-part test for determining intent, the Wallace court altered the second prong to require proof only that "the accused is aware that the child is in circumstances that could threaten the child's physical or psychological welfare," Wallace , 817 A.2d at 490-91 (emphasis added), as opposed to requiring proof of the accused's awareness that the child is in circumstances that threaten the child's physical or psychological welfare, thereby adopting a less-demanding standard of knowledge than originally required by Cardwell . Additionally, although the Wallace court recognized that Section 4304 requires an "awareness by the accused that his violation of his duty of care, protection and support is ‘practically certain’ to result in the endangerment to his children's welfare," the court conceded that "[w]ithout a crystal ball no one can determine how, when and in what manner the conditions in [the accused's] house would cause harm to the children." Id. at 492. Mother submits that the Wallace court's language also requires the Commonwealth to establish that a parent be "practically certain" that his conduct will result in endangerment to a child in accordance with subsection (ii) of Section 302(b)(2).
Finally, in Commonwealth v. Smith , 956 A.2d 1029 (Pa. Super. 2008), the Superior Court upheld a father's conviction under Section 4304 based on his act of shaking his infant so violently that it resulted in brain damage. The court, applying Wallace's modified three-prong test, concluded that "[t]he ‘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." Id. at 1038. The court further opined: "It takes nothing more than common sense for an adult, let alone an experienced father such as [a]ppellant, to know that violently shaking an infant child with enough force to cause an abusive head trauma could threaten the child's physical and/or psychological welfare." Id. at 1038-39 (footnote omitted). In Mother's view, the Smith decision suggests that proof only of Section 302(b)(2)(i) is required to establish the necessary mens rea for Section 4304. See Mother's Brief at 18.
Mother asserts that, notwithstanding the various inconsistent tests employed previously by the Superior Court, the court in this case did not follow any of the tests, instead concluding that the evidence was sufficient to sustain Mother's conviction under Section 4304(a)(1) because she was "aware that her failure to properly restrain her daughter could cause harm in the event of an accident," and, further, that a conviction "only requires proof of circumstances that could threaten the child's physical or psychological welfare." Mother's Brief at 19 (quoting Howard , 1281 WDA 2018 at 4-5 (emphasis original)). According to Mother, the Superior Court's reasoning not only conflicts with the express language of Section 302(b)(2), but ignores the third prong of the test recognized by this Court in Lynn – namely, that the accused's actions or inactions "cannot reasonably be expected to protect the child's welfare." Id. at 20 (quoting Lynn , 114 A.3d at 819 ).
In an amicus brief filed in support of Mother, the Defender Association of Philadelphia ("DAP") initially argues that the three-part test the Superior Court panel below applied is flawed, in that it disregards the requirement of the statute that a person knowingly endanger the welfare of a child. DAP's Brief at 21-22. It further asserts that the third prong of the test is broad and ambiguous, and does not even appear in Section 4304(a)(1). Id. at 23. Citing the dissenting opinion in Lynn , supra , DAP also maintains that the Superior Court's test does not provide fair notice of what constitutes criminal conduct. Id. at 25-26.
DAP additionally suggests that the "common sense of the community" standard depends on a variety of factors, including race, class, ethnicity, geographic region, and age of the parents. It submits that standards also may change over time, noting that parental conduct which was viewed as acceptable in the past - for example, allowing a child to play unsupervised outside or remain in the car when the parent ran into the store, or piling kids into the back of a car - may now be subject to criminal prosecution. Finally, speculating that Mother may have been riding in a jitney, a car-for-hire which "operate[s] mainly in poor neighborhoods" and is "less likely to have safety features," DAP suggests that upholding convictions in cases like the one sub judice will disproportionately affect low-income and minority families. Id. at 4.
Finally, acknowledging that she failed to raise the argument below, Mother asserts that, pursuant to the plain language of 75 Pa.C.S § 4581(f), evidence that Child was not in a car seat was statutorily inadmissible to establish a violation of Section 4304(a)(1).
Subsection (f) of 75 Pa.C.S. § 4581, titled "Restraint systems," provides:
The requirements of this subchapter [see supra note 7] or evidence of a violation of this subchapter are not admissible as evidence in a criminal proceeding except in a proceeding for a violation of this subchapter. No criminal proceeding for the crime of homicide by vehicle shall be brought on the basis of noncompliance with this subchapter.
75 Pa.C.S. § 4581(f).
The Commonwealth counters that the evidence was sufficient to support Mother's conviction under Section 4304(a)(1) under the three-part test set forth by the Superior Court in Cardwell and Wallace . Specifically, the Commonwealth argues that, as Child's mother, Mother has a duty to care for the child's safety, and, when faced with the decision of whether to place Child in the car-for-hire without a car seat, Mother:
could have utilized the option of restraining the child with the seatbelt. By doing so, she would have evidenced her duty of care to the child, and taken a reasonable step to discharge that duty. She did not do so, however, but instead knowingly disregarded her duty of care. It is not the Commonwealth's position that a parent must always carry a child safety seat with them to avoid events such as this, where the parent is forced by circumstance to either hire or accept a ride in a third party's vehicle that is not equipped with a child safety seat. Rather, parents such as [Mother] have other options in accepting such a ride, seatbelts. At a minimum, [Mother] should have, and was required, to at least attempt to protect her child by utilizing the restraint system that was available to her, a seatbelt, but failed to do so. It is for this reason[ ] that the Commonwealth submits that this evidence was sufficient to support the conviction for endangering the welfare of a child.
Commonwealth's Brief at 10-11. The Commonwealth further submits that, notwithstanding Mother's argument that vehicle accidents are uncommon, the legislature requires that all vehicles include passenger restraint systems and imposes penalties for failure to use them. Id. at 11 (citing 75 Pa.C.S. § 4581 ).
With regard to Section 302(b)(2), the Commonwealth contends that subsections (i) and (ii) are separate and distinct, and that proof of either is sufficient to establish that a person acted knowingly. According to the Commonwealth, Mother's prosecution "was premised on the first clause, the nature and attendant circumstances of her actions," and, therefore, it "was only required to prove [Mother] was aware of her duty of care while transporting her daughter in a motor vehicle," not that she knew that a particular result was practically certain. Commonwealth's Brief at 12-13.
For the reasons explained below, we reject the Commonwealth's suggestion that, in order to establish a violation of Section 4304(a)(1), the Commonwealth was required to prove only that Mother was aware of her duty of care when transporting Child in the car-for-hire. Rather, we hold that, pursuant to Section 302(b)(2), the Commonwealth was required to prove that Mother was aware her conduct endangered the welfare of Child.
To reiterate, under Section 302(b)(2), a person acts "knowingly" with respect to a material element of an offense when:
(i) if the element involves the nature of his conduct or the attendant circumstances, he is aware that his conduct is of that nature or that such circumstances exist; and
(ii) if the element involves a result of his conduct, he is aware that it is practically certain that his conduct will cause such a result.
18 Pa.C.S. § 302(b)(2). This language mirrors the definition of "knowingly" set forth in Section 2.02(2)(b) of the Model Penal Code.
Section 1.13 of the Model Penal Code provides the following definition of "element of an offense":
"element of an offense" means (i) such conduct or (ii) such attendant circumstances or (iii) such a result of conduct as
(a) is included in the description of the forbidden conduct in the definition of the offense; or
(b) establishes the required kind of culpability; or
(c) negatives an excuse or justification for such conduct; or
(d) negatives a defense under the statute of limitations; or
(e) establishes jurisdiction or venue.
Model Penal Code, § 1.13(9). A "material element of an offense" is an element that "does not relate exclusively to the statute of limitations, jurisdiction, venue, or to any other matter similarly unconnected with (i) the harm or evil, incident to the conduct, sought to be prevented by the law defining the offense, or (ii) the existence of a justification or excuse for such conduct." Id. § 1.13(10).
Section 2.02(7) of the Model Penal Code additionally provides: "When knowledge of the existence of a particular fact is an element of an offense, such knowledge is established if a person is aware of a high probability of its existence, unless he actually believes that it does not exist." Model Penal Code, § 2.02(7) (emphasis added).
As at least one commentator has observed, the Model Penal Code, unfortunately, does not "define adequately the three kinds of objective elements of an offense - that is, to distinguish conduct, circumstance, and result elements." Robinson, Paul, H. and Grall, Jane A., Element Analysis in Defining Criminal Liability: The Model Penal Code and Beyond , 35 Stanford Law Review 681, 706 (1983). The absence of these definitions "severely undercut[s] the usefulness of defined culpability terms." Id. at 707.
Further, this Court has not previously analyzed the distinctions between nature-of-conduct, circumstances-of-conduct, and result-of-conduct elements, nor have we addressed the culpability standards set forth in Section 302 in the specific context of Section 4304. However, in Commonwealth v. Moser , 519 Pa. 441, 549 A.2d 76 (1988), we considered the application of Section 302(b)(2) as it pertained to a finding of an aggravating circumstance under 42 Pa.C.S. § 9711(d)(7) in support of a death sentence, which applies when "in the commission of the offense the defendant knowingly created a grave risk of death to another person in addition to the victim of the offense." The appellant in Moser met his ex-wife and his two daughters outside of his car in a church parking lot, for the purpose of exchanging custody so that he could spend the day with his daughters. After the girls entered his car and his ex-wife began to walk away, the appellant removed a rifle from the back of his car and shot one of his daughters in the head. When the appellant's ex-wife heard the shot, she turned toward him, and he shot her in the chest. The appellant then turned back to the car and shot his other daughter. None of the victims survived.
In rejecting the appellant's claim that the record did not support a finding of the grave risk of death aggravator, we explained that, under Section 302(b)(2)(i) and (ii) :
in order to satisfy the knowledge requirement, a person must be aware of the nature of his conduct and the certainty with which the conduct will cause such a result. Applying § 302(b)(2) to § 9711(d)(7) of the Sentencing Code in order to satisfy the knowledge requirement
of subsection (d)(7), it must be proven that a perpetrator was aware of his conduct and the effect of his conduct. In other words, a person must be aware of the gravity of the acts committed and the effect of those acts.
Moser, 549 A.2d at 79 (emphasis added).
We noted in Moser that the appellant's purchase of a rifle primarily designed for hunting big game, which had a range of approximately 500 yards, and the fact that there was one individual in a car parked next to the appellant's, and another individual approximately 150 yards in front of the appellant, behind his ex-wife, at the time of the shootings, was sufficient to demonstrate that appellant was aware that his conduct created a grave risk of harm to individuals beyond the targeted victims.
Regarding the offense at issue in the case sub judice , as noted above, a person violates Section 4304(a)(1) 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). "Endanger" is defined, inter alia , as "to bring into danger or peril," or "to create a dangerous situation." https://www.merriam-webster.com/dictionary/endanger. Thus, the material element of Section 4304(a)(1) is the creation of a perilous or dangerous situation, much like the creation of a grave risk of harm was the material element of the Section 9711(d) aggravating circumstance that was at issue in Moser . The creation of the perilous or dangerous situation in the instant case, and the creation of the grave risk of harm in Moser , were each the result of the actor's conduct. As a result, in accordance with Moser , we hold that, in order to satisfy the knowledge requirement of Section 4304(a)(1), the Commonwealth was required to prove both that Mother was aware that Child should have been restrained in a car seat when riding in the car-for-hire, and that Mother was aware that, by allowing Child to ride in the car-for-hire unrestrained, she placed Child in a perilous or dangerous situation. We emphasize that, for purposes of Section 4304, the requirement of Section 302(b)(2)(i) that the accused be "aware that it is practically certain that his conduct will cause such a result" does not require that he be certain of a particular harm or injury - for example, in this case, a car accident. Again, as it pertains to Section 4304, the result of the actor's conduct is the creation of a dangerous situation , which is what Section 4304(a)(1) seeks to prevent.
As explained by President Judge Emeritus Kate Ford Elliott in Miller :
Utilizing a common sense of the community approach to interpret the specific intent element of the statute, we find an implicit recognition that parents at times can make mistakes in judgment and that their children may be harmed as a result. However, for such mistakes to rise to the level of criminal culpability, parents must knowingly allow their child to be at risk with awareness of the potential consequences of their actions or of their failure to act.
600 A.2d at 992.
With this standard in mind, we next consider whether the Commonwealth met its burden of establishing, beyond a reasonable doubt, that Mother was aware that allowing Child to ride in a car-for-hire without a car seat would endanger the welfare of Child. As noted above, see supra note 9, in determining whether a parent or guardian's conduct is sufficient to support a conviction under Section 4304(a)(1), courts must consider whether the conduct at issue offends the "common sense of the community" and the "sense of decency, propriety and the morality which most people entertain." Lynn , 114 A.3d at 818 (citation omitted). Mother reiterates that she allowed Child to ride in a car-for-hire without a car seat because she needed to take Child home and it did not appear to her that the driver of the car was operating the vehicle in an unsafe manner. According to Mother, when her conduct is viewed in the context of whether it offends the common sense of community, the evidence was insufficient to demonstrate that she was aware that her conduct endangered Child's welfare. We agree.
In its brief, the Commonwealth asserts that Mother "has never alleged that she was unaware of her duty to restrain her child, nor could she. In fact, she admitted to the officer her fear that she was afraid that her daughter could have flown over the seat and into the windshield during the accident." Commonwealth Brief at 13. The Commonwealth fails to explain, however, how this statement, which was made after the accident occurred, is probative of Mother's state of mind at the time she placed Child in the vehicle. Moreover, it was the Commonwealth's burden to prove that Mother was aware of her duty to place Child in a car seat.
In his concurring opinion, Justice Wecht suggests that this Court should abandon reliance on this standard in evaluating whether a parent's or guardian's conduct is sufficient to support a conviction for endangering the welfare of a child under Section 4304(a)(1). Concurring Opinion (Wecht, J.) at 1233–34. However, as Justice Wecht acknowledges, this standard has developed over time, and most recently was applied by this Court in Lynn , in 2015. As neither party in the instant case has asked this Court to reconsider our decision in Lynn , or reject the standard reiterated therein, we conclude that further consideration of Justice Wecht's thoughtful observations as to the continued vitality of the standard should be deferred to a future case where the question is squarely before us and the parties have fully briefed the issue.
In finding Mother guilty of endangering the welfare of Child, the trial court commented that the likelihood of an accident is "high enough that the Commonwealth of Pennsylvania had to get a federal statute, requiring that children below a certain age to be in a car seat for their safety, and adults to wear seatbelts." N.T. Trial, 8/1/18, at 12-13. The court further noted that parents cannot "leave the hospital with a child without having the proper car seat properly installed," id. at 17, and reasoned:
This would appear to be a misstatement by the trial court, as 75 Pa.C.S. § 4581 is a Pennsylvania, not a federal, statute.
[i]t's clear for many years now that you can't put your child in a car, and drive that car safely on a state highway without having the child properly restrained in a car seat that's age appropriate. If the driver is held to that level of care for any child placed, certainly the mother of that child would be held at the same level of care.
Id. at 21.
Emphasizing its reliance on Section 4581, in its opinion pursuant to Pa.R.A.P. 1925(a), the trial court concluded that Mother violated "a duty of care to her three-year-old child by placing her unrestrained in a 1000-2000 pound vehicle careening down a major roadway at a significant rate of speed," and that "duty of care is codified at 75 Pa.C.S. § 4581." Trial Court Opinion, 11/26/18, at 4.
The trial court's observations notwithstanding, our review of the record reveals that the Commonwealth failed to demonstrate that, when viewed through the "common sense of the community" and the "sense of decency, propriety, and the morality which most people entertain," Mother's conduct in allowing Child to ride in the car-for-hire without a car seat, absent any other indicia of dangerousness, endangered the welfare of Child. Initially, we note the Commonwealth did not present any evidence regarding the circumstances of Mother's decision to allow Child to ride in the car-for-hire without a car seat. Nor was any evidence presented regarding the community in which Mother lived or the other options for transportation that may have been available to her. Absent such evidence, and without other evidence to suggest that Mother's decision to use a car-for-hire, in and of itself, endangered the welfare of Child, it appears the Commonwealth seeks a rule that a parent or guardian's failure to use child safety restraints when allowing a child to ride in a vehicle constitutes a per se violation of Section 4304(a)(1). We decline this invitation.
In her dissent, Justice Mundy suggests that "Mother's failure to secure her three-year-old toddler in a car seat or at least fasten the seatbelt restraint or at a very minimum sit with her toddler in the backseat," when viewed through the common sense of the community, is sufficient to establish that Mother knowingly endangered Child. Dissenting Opinion (Mundy, J.) at 1239-40. She further opines that, in light of the fact that we have described Section 4304 as protective in nature, such that it must be construed to effectuate its broad purpose of sheltering children from harm, "the very fact that child was alone unrestrained in the backseat of a car during a car accident is proof enough that a car seat, a seat belt, or parent supervision in the back seat with the toddler should have been employed. The Mother's failure to take obvious and prudent steps to avoid danger in the unlikely but ever-present possibility of a car accident resulted in placing her toddler in a situation of avoidable harm." Id. at 1240. Respectfully, the dissent's position is premised on facts which are not in evidence in the record, including the availability of working seatbelts in the car-for-hire in which Mother and Child were riding. See supra note 5. Furthermore, although not relevant herein, the dissent fails to acknowledge or address Mother's observation that various organizations, including the National Highway Traffic Safety Administration, counsel against the use of seatbelts on children under the age of eight, unless the child is large enough for a seatbelt to fit properly. See id . Finally, the dissent provides no support for its suggestion that a parent sitting next to a child would provide any measure of safety to the child in an accident.
In this regard, Section 4581 of the Vehicle Code informs our conclusion as to whether Mother's conduct was contrary to the common sense of the community, and the sense of decency, propriety, morality which most people entertain, as the legislature's enactment of a statute is certainly an expression of the standard of conduct to which society does, and is expected to, aspire. Section 4581(a) requires any person operating a vehicle and transporting a child under the age of four to "fasten such child securely in a child passenger restraint system." 75 Pa.C.S. § 4581(a)(1). A person who fails to comply with this section commits a summary offense and, if convicted, may be fined $75. Id. § 4581(b).
We first note that, despite the fact that the legislature has mandated that individuals who operate a vehicle and transport a child under the age of four securely fasten the child in a child passenger restraint system, it has not enacted a corresponding statute imposing a similar duty on a non-driving parent or guardian. Moreover, even a driver who violates Section 4581 may be charged with only a summary offense, and, where an individual who is cited for violating Section 4581 "displays evidence of acquisition" of a car seat to a judge prior to or at the individual's hearing, the charges will be dismissed, and the fine waived. 75 Pa.C.S. § 4581(c).
Indeed, we observe that evidence of a violation of Section 4581 is inadmissible as evidence in any criminal prosecution, except in a proceeding for a summary offense under Section 4581. Id. § 4581(f). Thus, a driver who transports a child in a vehicle without securing the child in a car seat may be prosecuted only for a summary offense under Section 4581, and is not subject to prosecution for any other crime – including, for example, endangering the welfare of a child – based on that evidence alone. As a result, had Mother been driving the vehicle in which Child was riding unrestrained, Mother could not have been charged with endangering the welfare of Child based solely on her failure to fasten Child in a car seat.
See supra note 11.
In her brief, Mother highlights that, pursuant to Section 4581(f), evidence of a violation of Section 4581(a) may not be used as evidence in a criminal proceeding, except in a proceeding for a violation of Section 4581. Acknowledging that she failed to raise this claim below, Mother nonetheless submits that, under the plain language of Section 4581(f), "the Commonwealth did not even have the authority to charge [her]" with endangering the welfare of a child. Mother's Brief at 41. Even absent Mother's concession that she waived this claim, id. at 43, we note that Section 4581 expressly applies to drivers of vehicles, and Mother was not driving the vehicle. Nevertheless, as discussed above, we find Section 4581(f) to be probative of the common sense of community.
The dissent acknowledges the correctness of this analysis, but suggests that "it does not contemplate what may happen when a driver places a toddler alone in the back seat unrestrained without any supervision." Dissenting Opinion (Mundy, J.) at 3. Section 4581, however, governs both car seats and seat belts, referring broadly to a "child passenger restraint system." Thus, regardless of whether the failure involved the use of a car seat or a seat belt, the result would be the same: Mother would not be subject to prosecution unless she was the driver of the vehicle, and then, only for a summary offense. Moreover, Section 4581 does not explicitly or implicitly require "supervision," and the dissent improperly creates this concept out of whole cloth.
Despite the fact that use of a car seat is recommended by numerous organizations, including, for example, the Pennsylvania Department of Transportation, the National Highway Traffic Safety Administration, and the American Association of Pediatrics, the legislature has deemed a driver's failure to utilize seatbelts or car seats when transporting a child to be a summary offense and nothing more, and it has not otherwise expressly criminalized a parent or guardian's failure to utilize the appropriate child restraints when he or she is not the driver of the vehicle. We cannot conclude that the community views Mother's conduct in allowing Child to ride in the car-for-hire without a car seat in a harsher light than does the General Assembly, subjecting her to a first-degree misdemeanor conviction for child endangerment. Accordingly, we hold that Mother's conduct in this case did not offend the common sense of the community, and, consequently, that the Commonwealth did not establish that Mother knowingly endangered the welfare of Child.
A person convicted of a first-degree misdemeanor may be sentenced to a term of imprisonment of up to five years. 18 Pa.C.S. § 1104(1). Under certain circumstances, the offense of endangering the welfare of a child may be graded as high as a first-degree felony. See id. § 4304(b)(1), (2) (providing that, where the actor's conduct creates a substantial risk of death or serious bodily injury and was part of a course of conduct, it constitutes a second-degree felony, and, further, if a child is under the age of six at the time of the offense, the offense shall be increased one grade).
In light of the increased use of ride-share services, the enactment of clear laws pertaining to a parent or guardian's duty regarding the use of car seats may be warranted. However, that is a task for the legislature.
For all of the foregoing reasons, we conclude that Mother's act of allowing Child to ride in a car-for-hire without a car seat was, without more, insufficient to support a conviction for endangering the welfare of a child under Section 4304. Thus, the Superior Court's affirmance of Mother's conviction for endangering the welfare of a child is reversed, and her conviction and judgment of sentence are vacated.
Justice Donohue joins the Opinion Announcing the Judgment of the Court.
Justice Saylor files a concurring opinion.
Justice Dougherty files a concurring opinion in which Chief Justice Baer joins.
Justice Wecht files a concurring opinion.
Justice Mundy files a dissenting opinion. CONCURRING OPINION
JUSTICE SAYLOR
Initially, I agree that Mother's conduct was not "expressly criminalized," and that, generally, there are a "lack of clear laws [in this Commonwealth] pertaining to a parent's duty regarding the use of a car seat" in ride-sharing services. Opinion Announcing the Judgment of the Court at 20, fn. 23. Particularly given this uncertainty, I would implement the rule of lenity to find the endangerment statute did not apply to the conduct here -- a rule which, by its plain text, applies to all "penal provisions," including, as I continue to think, the endangerment statute. See 1 Pa.C.S. § 1928(b)(1) ; accord Commonwealth v. Lynn , 631 Pa. 541 n.3, 114 A.3d 796, 829 n.3 (2015) (Saylor, J., dissenting) ("[A]ny suggestion that a particular criminal provision should be exempted from the general rule of strict construction is likely to lead to inconsistency and confusion."). Thus, I agree that Mother's conviction and judgment of sentence should be vacated, but I would arrive at that result without recourse to the community-standards approach relied on in the lead opinion.
CONCURRING OPINION
JUSTICE DOUGHERTY
I concur in the result of the Opinion Announcing the Judgment of the Court (OAJC), and agree substantially with Justice Saylor's concurring opinion. Though I agree the evidence presented in this case is insufficient to support a criminal charge of endangering the welfare of children (EWOC), 18 Pa.C.S. § 4304(a)(1), I would reach this result with a straightforward analysis of the relevant statutory texts, the evidence of record, and the trial court's findings and conclusions — "without recourse to the community-standards approach relied on by the [OAJC,]" Concurring Opinion at 1 (Saylor, J.), but relying upon the foundational principles of statutory interpretation and appellate review for evidentiary sufficiency.
When presented with a criminal defendant's sufficiency claim on appeal, we must determine whether, when viewed in the light most favorable to the Commonwealth as verdict winner, the evidence at trial proved each material element of the offense beyond a reasonable doubt. See Commonwealth v. Smith , 234 A.3d 576, 581 (Pa. 2020). Here, the relevant material elements of the offense are: (1) knowingly bringing a child's welfare into peril or creating a dangerous situation for the child's welfare, i.e. , "endanger[ing] the welfare of the child[,]" see OAJC at 1227, and (2) knowingly "violating a duty of care, protection or support." 18 Pa.C.S. § 4304(a)(1).
As the OAJC aptly sets forth, a person acts "knowingly" with respect to a material element of an offense when:
(i) if the element involves the nature of his conduct or the attendant circumstances, he is aware that his conduct is of that nature or that such circumstances exist; and
(ii) if the element involves a result of his conduct, he is aware that it is practically certain that his conduct will cause such a result.
OAJC at 1222, quoting 18 Pa.C.S. § 302(b)(2). Whether the creation of a situation that is dangerous to a child's welfare involves the nature of a defendant's conduct as anticipated by subsection 302(b)(2)(i), or is also the result of it and subject to subsection 302(b)(2)(ii), the record must support that the mother in this case was, at a minimum, aware of the creation of a situation dangerous to the child's welfare, and aware she violated a duty of care.
Though the OAJC indicates the creation of a dangerous situation for the child's welfare is definitively a "result" of conduct subject to the more stringent mens rea standard provided in Section 302(b)(2)(ii), I would not foreclose on the possibility that such endangerment may arise from the nature of conduct or an attendant circumstance of it, or be comprised of both conduct/circumstance and result, depending upon the particular circumstances, i.e., whether the conduct poses a risk of danger, or whether it results in an actual danger or harm to a child's welfare. However, as explained infra , due to the paucity of factual information in this record I do not view this case as an appropriate vehicle to decisively reach any conclusion on this question as a matter of law.
OAJC at 1230.
As the OAJC notes, this argument was not raised or preserved in the lower courts.
The entire record in the present case consists of the affidavit of probable cause only, and when viewed in the light most favorable to the Commonwealth, this singular piece of evidence establishes these facts: Mother was in the passenger seat of a car driven by another person; her daughter was alone in the back seat and not secured in a car seat; the car was in an accident with two other vehicles, which heavily damaged the front of the car Mother occupied; no one in that car was wearing a seatbelt and there was no car seat in the car; and after the accident, Mother stated to police she feared the child would fly from the back seat and hit the windshield during the collision. See Amended Affidavit of Probable Cause. The Commonwealth relied upon the Motor Vehicle Code (MVC) Section 4851, requiring children under four years old to be secured in a car seat while being transported in a motor vehicle, to establish Mother violated a codified duty to the child. See N.T., 8/1/2018 at 19, citing 75 Pa.C.S. § 4581. The trial court explicitly found Mother "violated a duty of care ... codified at 75 Pa.C.S. § 4581, which states, ‘any person who is operating a passenger car , ... and who transports a child under four years of age anywhere in the motor vehicle ... shall fasten such child securely in a child passenger restraint system[.]’ " Trial Court Opinion, 11/27/2018 at 4, quoting 75 Pa.C.S. § 4581(a)(1)(i) (emphasis and ellipses added). The trial court relied on this finding alone to somehow determine an additional pivotal fact: Mother was aware of this duty and violated it, such that "[t]he elements of [EWOC] have been established beyond a reasonable doubt[.]" Id .
The duty of care codified by MVC Section 4581 is expressly assigned to "any person who is operating a passenger car." The record in this case contains no evidence, or legal argument, establishing any fact or reasonable inference that Mother was an operator of the vehicle. And perhaps more significantly, pursuant to subsection 4581(f), the requirements of the MVC's occupant protection provisions or evidence of their violation is "not admissible as evidence in a criminal proceeding " as a matter of law. 75 Pa.C.S. § 4581(f) (emphasis added). Subsection 4581(f) does not prescribe in whose criminal proceeding the MVC provisions’ requirements or violations are inadmissible, but rather, it generally proscribes their use "in a criminal proceeding[.]" See id . Because Mother's conviction rests expressly upon the trial court's finding she violated a codified duty of care which the record does not support was applicable to her, and further, upon requirements of the MVC which were inadmissible, I conclude there is insufficient evidence in this record to establish Mother's actual awareness of a violation of a duty, and therefore the Commonwealth did not meet its burden to prove each element of the offense of EWOC.
Additionally, though the "common sense of the community" may at times appropriately provide context to application of the EWOC statute, in my view, it does not aid our analysis in this case. Certainly our communal common sense — no doubt codified in the MVC — directs our understanding that a three-year-old child should be secured in a car seat when transported in a moving motor vehicle. But there is no definitive communal common sense, and more importantly, no evidence in this record, regarding the appropriate discharge of a parental protective duty when there is no car seat available (despite the Commonwealth's bald assertion the child should have been secured by a seatbelt). As demonstrated in the responsive expressions of my insightful colleagues, placing a seatbelt on a small child when no car seat is available might be a reasonable first impulse, but doing so may also create its own set of dangers. Given the present record, we are left to speculate over the parameters of a parent's duty under these circumstances.
Accordingly, while I would approach the analysis of this issue differently, I agree with the OAJC's conclusion that the threadbare facts in this case, i.e. , a parent allowing a child to ride in a car-for-hire without a car seat, were, "without more, insufficient to support a conviction for endangering the welfare of a child under Section 4304." OAJC at 1230.
Chief Justice Baer joins this concurring opinion.
CONCURRING OPINION
JUSTICE WECHT
Waylynn Marie Howard asks this Court to determine whether the Commonwealth proved beyond a reasonable doubt that she "knowingly endanger[ed] the welfare of [her] child by violating a duty of care, protection, or support." 18 Pa.C.S. § 4304(a)(1). I agree with the Opinion Announcing the Judgment of the Court ("OAJC") that Howard's "act of allowing [her child] to ride in a car-for-hire without a car seat was, without more, insufficient to support a conviction for endangering the welfare of a child."1 I further agree that, because the statutory phrase "endangers the welfare" refers to a result "of the actor's conduct," a verdict of guilt requires that the accused "be ‘aware that it is practically certain that’ " her conduct "creates a dangerous situation."
Id . at 1227 (quoting 18 Pa.C.S. § 302(b)(2)(i) ).
Respectfully, I cannot endorse the OAJC's choice to invoke "the common sense of the community" and the "sense of decency, propriety, and morality which most people entertain" in reversing Howard's conviction. I stress that the OAJC cannot be faulted for reciting this windy language, which it did not invent. But I believe we should no longer perpetuate such cant. Slogans like these are unfortunate vestiges of this Court's jurisprudential past and should be abandoned. They invite lawyers to seek, and judges to make, policy and morality pontifications defining criminality in circumstances where the General Assembly already has exercised its sole prerogative to prescribe the offense by statute. Amorphous standards that call upon judges to interpret statutes by divining and then applying the "sense of decency, propriety, and morality which most people entertain" or by mystically conjuring "the common sense of the community" cannot be applied in any principled way.
Id . at 1228 (quoting Commonwealth v. Lynn , 631 Pa. 541, 114 A.3d 796, 818 (2015) ).
What's more, none of this judicial moralizing is necessary to the OAJC's otherwise fine analysis. Our familiar tools of statutory interpretation are sufficient to show that Howard's conduct did not satisfy the statutory elements of endangering the welfare of a child. Unlike the OAJC, I would not permit hoary notions about some "common sense of the community" or some mantra about a "sense of decency, propriety, and morality which most people entertain" to continue stumbling and bumbling forward in Pennsylvania law.
In Commonwealth v. Mack , 467 Pa. 613, 359 A.2d 770 (1976), this Court first staked a claim to the "common sense of the community" standard for purposes of identifying the conduct that Section 4304 proscribes. There, this Court examined an argument that Section 4304 was unconstitutionally vague. Id . at 771. In holding that the statute was not void for vagueness, the Mack Court opined that Section 4304 is a "juvenile statute," which "is basically protective in nature." Id . at 772 (quoting Commonwealth v. Marlin , 452 Pa. 380, 305 A.2d 14, 18 (1973) ). Statutes aimed at safeguarding "the welfare and security of our children," according to Mack , "are to be given meaning by reference to the ‘common sense of the community’ and the broad protective purposes for which they are enacted." Id . (quoting Marlin , 305 A.2d at 18 ). Therefore, the Court opined:
With these two factors in mind, we believe that [S]ection 4304 is not facially vague. Phrases such as ‘endangers the welfare of the child’ and ‘duty of care, protection or support’ are not esoteric. Rather, they are easily understood and given content by the community at large. An individual who contemplates a particular course of conduct will have little difficulty deciding whether his intended act ‘endangers the welfare of the child’ by his violation of a ‘duty of care, protection or support.’
Id . Employing the "common sense of the community" standard, Mack held that Section 4304 was not unconstitutionally vague, as that standard (supposedly) provided some "ascertainable standard of conduct." See id .
While Mack first interpreted Section 4304 using the "the common sense of the community" and "sense of decency propriety and morality which most people entertain" criteria, Marlin was the first instance in which this Court interpreted a criminal offense—namely, corrupting the morals of a minor by contributing to delinquency—under that standard. See Marlin , 305 A.2d at 18 ; 11 P.S. § 262 (repealed 1972). Like a Matryoshka doll, Marlin itself had pulled this grand language from a 1957 Superior Court case, Commonwealth v. Randall , 183 Pa.Super. 603, 133 A.2d 276 (1957), which concerned the offense of corrupting the morals of a minor. See 18 P.S. § 4532 (repealed 1972). In Randall , the Superior Court offered the following shibboleth:
The comprehensive words of the statute, ‘whoever, being of the age of twenty-one years and upwards, by any act corrupts or tends to corrupt the morals of any child under the age of eighteen years' certainly convey concrete impressions to the ordinary person. 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.
Randall , 133 A.2d at 280. Randall sermonized further that "the common sense of the community, as well as the sense of decency, propriety and the morality which most people entertain" imbue statutes with clarity because:
We are a religious people whose institutions presuppose a Supreme Being. Our Federal and State Constitutions assume that the moral code which is part of God's order in this world, exists as the substance of society. The people of this State have acted through their legislature on that assumption. We have not so cast ourselves adrift from that code nor are we so far gone in cynicism that the
word ‘immoral’ has no meaning for us. Our duty, as a court, is to uphold and enforce the laws, not seek reasons for destroying them.
Id . (citations omitted). Judicial attempts to channel and then saturate our law with the commands of "a Supreme Being" may have had some place in the jurisprudence of a bygone era. Id . In 2021, such attempts smack of nothing so much as breathtaking sanctimony. Indeed, such rhetoric stands in flagrant dereliction of the judicial duty simply "to uphold and enforce the laws." See id .
The Mack Court employed "the common sense of the community" standard for the purpose of holding that Section 4304 was not unconstitutionally vague. Modernity notwithstanding, Pennsylvania courts continue to invoke this language in determining whether the circumstances of particular cases fall within Section 4304 ’s reach. Today's OAJC goes even a bit further, apparently elevating this "common sense of the community" language to a non-statutory element of Section 4304(a)(1). I cannot join in this approach.
See, e.g. , Lynn , 114 A.3d at 826 (employing "the common sense of the community, and the sense of decency, propriety, and morality which most people entertain" to conclude that conduct was criminal under Section 4304(a) ); Commonwealth v. Retkofsky , 860 A.2d 1098, 1099 (Pa. Super. 2004) ("Whether particular conduct falls within the purview of the statute is to be determined within the context of the ‘common sense of the community.’ ") (quoting Mack , 359 A.2d at 772 ).
The sloganeering of Mack , Marlin , and Randall recalls the bad old days of the common law of crimes, when courts took it upon themselves to decide whether certain conduct should, as a matter of public policy, be declared criminal. Cf. Commonwealth v. Miller , 94 Pa. Super. 499, 507 (Pa. Super. 1928) (explaining that, at common law, conduct worthy of criminal punishment consisted of "acts which injuriously affect public morality, or obstruct, or pervert public justice, or the administration of government"). During that era, courts strived to somehow magically align the criminal law "with the moral code which is part of God's order in this world." Randall , 133 A.2d at 280. For many decades, this common law divination of oracular prophecy has been displaced by our Commonwealth's purely code-based approach to criminal law.
See Commonwealth v. Irland , 648 Pa. 380, 193 A.3d 370, 375 (2018) (observing that, in 1972, "the Crimes Code abolished common law crimes").
Before 1972, "the Commonwealth's criminal law was a conglomeration of statutory law and common law—the latter filling the void in those areas where the former was silent." Commonwealth v . Booth , 564 Pa. 228, 766 A.2d 843, 845 (2001) (cleaned up). However, by enacting Title 18, the General Assembly abolished common law crimes. 18 Pa.C.S. § 107(b). "No conduct constitutes a crime unless it is a crime under [Title 18] or another statute of this Commonwealth." Id . In other words, criminal law, in the sense courts speak of it today, is positive law: it does not exist without some definite statutory authority behind it. See id. at 846 ("Since the adoption of the Crimes Code, however, no conduct constitutes a crime in this Commonwealth unless it is a crime under Title 18 or another statute."). In this criminal code jurisdiction, it is the legislature, not the judiciary, that prescribes the conduct that is subject to criminal punishment.
Notably, Marlin and Randall —the decisions responsible for Mack ’s "common sense of the community and sense of decency, propriety, and morality which most people entertain" language—both concerned now-repealed criminal statutes that the legislature enacted before 1972, when Pennsylvania criminal law was still a stew of statutory law mixed with common law. See Marlin , 305 A.2d at 15 (interpreting Act of June 2, 1933, P.L. 1433, § 20, 11 P.S. § 262 (repealed 1972)); Randall , 133 A.2d at 277 (addressing the constitutionality of Act of June 3, 1953, P.L. 277, § 1, 18 P.S. § 4532 (repealed 1972)).
It is not for Pennsylvania's judiciary to deem conduct worthy of criminalization based upon judges’ hunches as to whether an act "injuriously affect[ed] public morality, or obstruct[ed], or pervert[ed] public justice, or the administration of government." Miller , 94 Pa. Super. at 507. No longer do we strain to conform statutory provisions to "the moral code which is part of God's order in this world." Randall , 133 A.2d at 280. Discerning the elements of a criminal offense is a task of statutory interpretation. Normative judgments and judicial assumptions about public morality play no role in the statutory inquiry. The OAJC errs in holding that, "in determining whether a parent or guardian's conduct is sufficient to support a conviction under Section 4304(a)(1), courts must consider whether the conduct at issue offends the ‘common sense of the community’ and the ‘sense of decency, propriety and the morality which most people entertain.’ " OAJC at 1228 (quoting Lynn , 114 A.3d at 818 ).
In addition to calling for a determination beyond our prerogative, the OAJC invites a non-uniform application of Section 4304(a)(1). The OAJC instructs the Commonwealth to present evidence "regarding the community in which [the accused] live[s]." Id . at 1228. Under this approach, the criminality of the accused's conduct will depend upon the particular locality in which the conduct occurred and upon the decision-maker's sense of that locality's norms. A pattern of conduct occurring somewhere in Eastern Pennsylvania could establish a Section 4304(a)(1) offense if that "community" is thought to deem it immoral, but an identical pattern of conduct arising somewhere in Western Pennsylvania might perhaps be insufficient to support a conviction if a judge thinks that locality deems it morally permissible. This is not law. It is chaos, followed by tyranny. Such a perverse result undermines the precept that laws must apply uniformly. Otherwise, they are not laws; they are only diktat. A predictable and fair application of Section 4304(a)(1) is unattainable if criminal culpability sways upon the fickle tides of judicial divination of communal norms and sensibilities.
See United States v. United Mine Workers of Am. , 330 U.S. 258, 312, 67 S.Ct. 677, 91 L.Ed. 884 (1947) (Frankfurter, J., concurring) ("If one man can be allowed to determine for himself what is law, every man can. That means first chaos, then tyranny.")
Nor can I imagine what evidence demonstrates adequately that a course of conduct violates any given community's moral standards. How many people in a community must agree on the propriety of a course of conduct in order to sustain a conviction under Section 4304(a)(1) ? Will the Commonwealth be required to present testimony of those persons in order to demonstrate the community's norms? Perhaps we should take a poll? In defining the relevant community, should courts consider the moral beliefs of all those individuals within a defined spatial proximity to the accused, or should we limit the relevant community to those who share a common religion, gender, political affiliation, socioeconomic status, or ethnicity with the accused? Should the inquiry encompass the norms of the community in which the alleged offense occurred, or should it focus instead upon the ethos of the defendant's community? Will the Commonwealth have to procure a sociological study of the relevant community's habits and then present expert testimony to that effect? Will philosophers, religious leaders, and ethicists be qualified to render expert opinion on morality and virtue? Such questions and absurdities abound. We are now well beyond the realm of proper judicial considerations in interpreting the elements of a criminal offense defined by the legislature.
The enactments of the legislature alone define conduct as worthy of criminal sanction. "[W]hen the judiciary is required to resolve an issue concerning the elements of a criminal offense, its task is fundamentally one of statutory interpretation." Booth , 766 A.2d at 846. In fulfilling that task, we are limited to the rules of interpretation in the Statutory Construction Act. 1 Pa.C.S. §§ 1501 - 1991. The "common sense of the community" and "the sense of decency, propriety, and morality which most people entertain" are not among the interpretive tools at our disposal. The proven tools of statutory construction sufficiently support the OAJC's conclusion that Howard's "act of allowing [her child] to ride in a car-for-hire without a car seat was, without more, insufficient to support a conviction for endangering the welfare of a child." OAJC at 1230.
As the OAJC observes, this Court is required to interpret Section 4304(a)(1) ’s ambiguous phrase "knowingly endangers the welfare of the child by violating a duty of care, protection or support." 18 Pa.C.S. 4304(a)(1). When, as here, the language of the statute is ambiguous, the Statutory Construction Act instructs courts to give effect to the intent of the General Assembly by considering several contextual considerations, including the occasion and necessity of the statute, the mischief to be remedied, and the object to be attained. See 1 Pa.C.S. § 1921(c). Because Section 4304 is derived from Section 230.4 of the Model Penal Code ("MPC"), precedent from other jurisdictions that have adopted Section 230.4 of the MPC is instructive. See id . § 1927 ("Statutes uniform with those of other states shall be interpreted and construed to effect their general purpose to make uniform the laws of those states which enact them."). Additionally, Section 4304 ’s commentary is a useful aid in carrying out the intention of the drafters. See id . § 1939; see also In re Tr. Under Agreement of Taylor , 640 Pa. 629, 164 A.3d 1147, 1160 n.6 (2017) (explaining that, when a statute is ambiguous, commentary is a helpful tool in ascertaining legislative intent).
In pertinent part, the comment to Section 4304 provides that "[t]he offense involves the endangering of the physical or moral welfare of a child by an act or omission in violation of legal duty even though such legal duty does not itself carry a criminal sanction." 18 Pa.C.S. 4304(a)(1), Jt. St. Govt. Comm. cmt.––1967. While the violation of the duty need not constitute a separate criminal offense, some definite legal duty must exist. The lower courts erred in concluding that Howard violated an established legal duty under the Motor Vehicle Code in failing to place safety restraints on her child while riding in a car driven by a third party.
According to the trial court, Howard violated the "duty of care codified at 75 Pa.C.S. § 4581." Tr. Ct. Op., 11/26/2018, at 4. In relevant part, Section 4581 of the Motor Vehicle Code provides that "any person who is operating a passenger car ... and who transports a child under four years of age anywhere in the motor vehicle ... shall fasten such child securely in a child passenger restraint system." 75 Pa.C.S. § 4581(a)(1)(ii) (emphasis added). This section establishes a duty to fasten a child passenger in a restraint system—but that duty belongs to the operator of the vehicle. As the OAJC astutely observes, the legislature "has not enacted a corresponding statute imposing a similar duty on a non-driving parent or guardian." OAJC at 1229. Howard was a passenger in the vehicle. She did not operate the car-for-hire at any point during the trip. The trial court held incorrectly that Howard violated a duty of care within the meaning of Section 4304 vis-à-vis her purported violation of Section 4581 of the Motor Vehicle Code.
The OAJC's observation that a violation of Section 4581 is inadmissible in a criminal prosecution provides further support for the contention that Section 4304 of the Crimes Code does not criminalize the conduct contemplated in Section 4581. See OAJC at 1229 (citing 75 Pa.C.S. § 4581(f) ). Like the OAJC, I cannot agree with Commonwealth's recklessly asserted contention that, because the car-for-hire did not have a car seat, Howard should have used a seatbelt to secure her child. See id at 1220-21 n.5; Commonwealth's Brief at 10. The National Highway Safety Administration cautions against using a seatbelt on a child who is less than eight years old. OAJC at 1220-21 n.5. Indeed, doing so increases the risk of injury to the child. Medscape, Adult Seat Belts Don't Keep Children Safe , https://www.medscape.com/viewarticle/411894 (June 8, 2000) ("nearly 40 percent of 2-to 5-year-old children are being placed in adult seat belts rather than car or booster seats, dramatically increasing their risk of injury in a crash). Specifically, failing to use an age-appropriate restraint system increases the likelihood of a child suffering head and brain injuries, which have a potential for long-term consequences. Id . Nor is there evidence to support the Commonwealth's claim that placing a seatbelt on a child is safer than no restraint system at all. Using a seat belt on a child under the age of eight creates a hazard of strangulation, even absent a collision, because the seatbelt is too large to fit on the child securely. Id .
Even if Howard was operating the vehicle, failing to place safety restraints on a child, without more, does not constitute the type of conduct proscribed by Section 4304. As the OAJC notes, Section 4304 criminalizes conduct that violates a legal duty and thus creates a "perilous or dangerous situation." Id . at 1227. A dangerous situation requires a likely threat of harm to the child. Case law from other jurisdictions that have adopted Section 230.4 of the MPC supports that conclusion. In those jurisdictions, courts have interpreted the word "endanger" as requiring circumstances that present an "actual and significant" likelihood of harm to the child. See In re N.K. , 169 N.H. 546, 153 A.3d 198, 203 (2016) (holding that, where New Hampshire's child endangerment statute failed to define "endangerment," the common usage of the term suggested that a child is endangered "when the risk of injury to his or her welfare is actual and significant—as opposed to speculative or a mere possibility"); see also State v. Fisher , 230 Kan. 192, 631 P.2d 239, 243 (1981) (interpreting the statutory phrase "a situation that may endanger the child's life or health" as requiring "something more than a faint or remote possibility; it means that there is a reasonable probability, a likelihood that harm to the child will result"); State ex rel. Juvenile Dept. of Deschutes Cty. v. Vanbuskirk , 202 Or.App. 401, 122 P.3d 116, 118 (2005) (explaining that, in deciding whether a condition or circumstances endanger the welfare of a child, the dispositive question "is whether, under the totality of the circumstances, there is a reasonable likelihood of harm to the welfare of the child").
Section 4304(a)(1) does not criminalize conduct that creates a mere theoretical possibility of harm; the threat of harm must be real and probable. One does not expect that most, or even a significant number of, car rides will result in a dangerous collision. Empirical data supports that common sense conclusion. The average American will be involved in a motor vehicle collision approximately once every 17.9 years. Of the approximately 6.7 million car crashes reported in 2019, 4.8 million of those crashes (71%) resulted in property damage only. In 2019, per every 100,000 people in the United States, eleven people (.011%) died in a traffic collision and 835 people (. 83%) suffered injuries. The possibility that a typical car ride will result in a collision, let alone a physically harmful one, is small. The failure to secure a child with safety restraints during a routine car ride, in and of itself, does not create a substantial likelihood of harm. Because "perilous or dangerous situation" refers to circumstances creating a likely risk of harm, the lone fact that Howard failed to fasten her child in a restraint system cannot support a conviction for endangering the welfare of a child under Section 4304.
Karen Aho, Here's How Many Car Accidents You'll Have , Fox Business , https://www.foxbusiness.com/features/heres-how-many-car-accidents-youll-have (last updated Jan. 12, 2016).
U.S. Dep't of Transp., Nat'l Highway Safety Admin., Traffic Safety Facts Annual Report (2020) https://cdan.dot.gov/tsftables/tsfar.htm#.
Id .
In sum, while Section 4304 is distinct from other criminal offenses considering its broad and fluid protective purpose, that expansive aim does not exempt it from the precept that courts are prohibited from deeming conduct worthy of criminalization on some "community decency" ground. Title 18 aims to provide clear and uniform standards for criminal offenses that do not vary based upon the moral stances of either the judges or the locality in which the accused committed the alleged offense. When possible, courts achieve the requisite uniformity by using the tools of statutory interpretation to create a clear and definite construction of the provision at issue. Those tools demonstrate that endangering the welfare of a child under Section 4304(a)(1) requires proof that the accused knowingly violated a legal duty and that, in doing so, the accused created a situation that she knew presented an actual and significant risk of harm to the child. Howard did not engage in conduct that met those requisites. The tools of statutory construction alone compel that conclusion. Ascertaining the meaning of Section 4304 does not entail an effort to supplicate the "brooding omnipresence in the sky" incarnated in some inchoate community's sense of decency, propriety, and morality.
S. Pac. Co. v. Jensen , 244 U.S. 205, 222, 37 S.Ct. 524, 61 L.Ed. 1086 (1917) (Holmes, J., dissenting).
While I agree with the OAJC's conclusions regarding both the requisite mens rea and the sufficiency of the evidence, I cannot join the OAJC's application of the "common sense of the community" standard to arrive at those important holdings.
DISSENTING OPINION
JUSTICE MUNDY
I write separately to note my dissent. The opinion announcing the judgment of the court (OAJC) concludes that the evidence presented by the Commonwealth was insufficient to sustain Mother's conviction under our EWOC statute because it failed to prove that Mother knowingly endangered her child. However, based on the requisite standards germane to our EWOC statute, I submit the evidence presented by the Commonwealth was more than sufficient to sustain Mother's conviction. Accordingly, I respectfully dissent.
The OAJC aptly explains that under the Commonwealth's EWOC statute, one standard pertinent to a determination of guilt is the common sense of the community. This standard states that the determiner of guilt must consider whether one's actions violate the community's "sense of decency, propriety and the morality which most people entertain." Commonwealth v. Lynn , 631 Pa. 541, 114 A.3d 796, at 818 (2015) (citations omitted). In my opinion, Mother's failure to secure her three-year-old toddler in a car seat or at least fasten the seatbelt restraint or at a very minimum sit with her toddler in the backseat, is sufficient to meet this standard. Even considering the situation in which Mother found herself, it seems intuitive that she could have utilized at least one of these safety measures. While I question whether any sensible community would find it acceptable for parents to travel with toddlers in a car without a car seat, it should require parents to, at a minimum, avail themselves of reasonable safety precautions, especially on behalf of their children.
I am further influenced that the common sense standard necessitates the buckling up a young child in a car seat since the Commonwealth's EWOC statute is articulated with the intention of criminalizing conduct "producing or tending to produce a [c]ertain defined result." Lynn , 114 A.3d at 828 (quoting Commonwealth v. Marlin , 452 Pa. 380, 305 A.2d 14, 18 (1973) ). The Lynn decision highlighted the fact that our EWOC 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 , 467 Pa. 613, 359 A.2d 770, 772 (1976) ). In my opinion, the very fact that child was alone unrestrained in the backseat of a car during a car accident is proof enough that a car seat, a seat belt, or parent supervision in the back seat with the toddler should have been employed. The Mother's failure to take obvious and prudent steps to avoid danger in the unlikely but ever-present possibility of a car accident resulted in placing her toddler in a situation of avoidable harm. This seems like the very type of conduct the Commonwealth's broad, protective statute should encompass. As was pointed out by the courts below, the odds of this event happening, despite any well-meaning parent's best intentions, are "high enough." N.T. Trial, 8/1/18, at 12-13. Indeed, Mother's own counsel conceded that "as a general matter, accidents happen every day, particularly on Route 28." N.T. Trial, 8/1/18, at 18. Mother herself acknowledged, albeit after the accident occurred, her apprehension that child could have been seriously injured. Stipulated Affidavit of Probable Cause, at p. 1.
Based on the expansive nature of the EWOC statute, I am not persuaded like the OAJC, that Section 4581 should alter the framework in which we view today's issue. The OAJC cogently acknowledges that Section 4581 applies only to drivers of vehicles, and thus has no bearing on the current situation. OAJC at fn. 18.1 However, the OAJC continues on to observe that a driver's violation of Section 4581 for failing to place a child in a car seat is inadmissible as evidence in any other criminal proceeding, save for a summary offense proceeding. OAJC at 1229-30 ("As a result, had Mother been driving the vehicle in which Child was riding unrestrained, Mother could not have been charged with endangering the welfare of Child based solely on her failure to fasten Child in a car seat."). The OAJC's legal analysis is correct in its proposed hypothetical, though it does not contemplate what may happen when a driver places a toddler alone in the back seat unrestrained without any supervision. I submit this would be enough to sustain a conviction for many of the same reasons as above. In my opinion, the parent's status as a driver or passenger may change the applicability of the Motor Vehicle Code, but it does not change the endangerment faced by a three-year-old toddler when placed alone in a back seat without the protection of at least a seat belt or an adult to hold and supervise the child in the moving vehicle.
Mother attempts to downplay the importance of a young child wearing a seat belt. In her brief, she even goes so far as to suggest that placing child in a seat belt would have been dangerous. Appellant's Brief at 51-53. I agree with the Commonwealth that this argument is attenuated. Even where restraints are not completely effective, it still would provide a level of protection beyond what was provided. In terms of our jurisprudence, it would have demonstrated Mother's desire to avoid imperiling circumstances that are certain to result in the creation of a dangerous situation.
I agree with the OAJC that the recent proliferation of rideshare services warrants the enactment of clear laws regarding a parent's duty of care, especially as it pertains to car seats. OAJC at fn.20. I sympathize that parents may be in a precarious position when attempting to travel with a child, finding themselves in a situation where it is difficult to procure a car seat. Failure to do so, however, should not excuse logical mitigating steps for child safety.
Today's OAJC sets forth a clear rule of law in an area of our jurisprudence that lends itself to varying results. However, I am unable to join the OAJC decision because I believe the Commonwealth supplied sufficient evidence to sustain a finding of guilt under Section 4304(a)(1). Even without a car seat, Mother could have restrained her child a different way, such as sitting in the backseat and holding the child, or using a seat belt. Since she did not, I am constrained to find the Superior Court's conclusion was appropriate. Accordingly, I dissent.