J-S25011-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA 

Appellant

v.

DANIEL J. MURPHY

Appellee

:

:

:

:

:

:

:

:

:

 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

No. 1076 WDA 2017

Appeal from the Order June 30, 2017

In the Court of Common Pleas of Elk County

Criminal Division at No(s): CP-24-CR-0000135-2016

BEFORE: GANTMAN, P.J., PANELLA, J., and OTT, J.

MEMORANDUM BY GANTMAN, P.J.: FILED JULY 12, 2018

Appellant, the Commonwealth of Pennsylvania, appeals from the order 

entered in the Elk County Court of Common Pleas, which granted the petition 

of Appellee, Daniel J. Murphy, for a writ of habeas corpus, and dismissed the 

criminal complaint that charged Appellee with several offenses stemming from 

the death of his minor child (“O.M.”), for the Commonwealth’s failure to 

present a prima facie case on all counts.

1

 We affirm. 

In its opinion, the trial court fully and correctly sets forth the relevant 

facts and procedural history. Therefore, we have no need to restate them. 

Procedurally, we add that the Commonwealth timely filed a notice of appeal 

____________________________________________

1 Pursuant to Pa.R.A.P. 311(d), the Commonwealth has certified in its notice 

of appeal that the trial court’s order substantially handicapped or terminated 

the prosecution of the Commonwealth’s case against Appellee. Accordingly, 

this appeal is properly before us for review. 
J-S25011-18

- 2 -

on July 21, 2017. The court ordered the Commonwealth on July 26, 2017, to 

file a concise statement of errors complained of on appeal per Pa.R.A.P. 

1925(b); the Commonwealth timely complied on August 11, 2017. 

The Commonwealth raises the following issues for our review:

WHETHER THE [TRIAL] COURT ERRED AS A MATTER OF 

LAW AND/OR ABUSED ITS DISCRETION BY WEIGHING THE 

2009 CONVICTION OF SCOTT MURPHY ASSAULTING 

[APPELLEE] AS BEING “TOO REMOTE IN TIME AND FAR TOO 

ATTENUATED CIRCUMSTANTIALLY” TO EVIDENCE A 

PROPENSITY FOR VIOLENCE BY SCOTT MURPHY, SAID 

EVIDENCE BEING ADMITTED BY THE COMMONWEALTH AT 

[THE] TIME OF [THE] PRELIMINARY HEARING[?]

WHETHER THE [TRIAL] COURT ERRED AS A MATTER OF 

LAW AND/OR ABUSED ITS DISCRETION BY GRANTING 

[APPELLEE]’S PETITION FOR WRIT OF HABEAS CORPUS

DISMISSING AS TO COUNT 1, INVOLUNTARY 

MANSLAUGHTER, 18 PA.C.S.A. § 2503(A), MISDEMEANOR 

FIRST DEGREE, OF THE CRIMINAL INFORMATION AS THE 

COMMONWEALTH MAINTAINS THAT A PRIMA FACIE CASE 

WAS PRESENTED BY THE COMMONWEALTH IN SUPPORT OF 

SAID CRIMINAL OFFENSE[?]

WHETHER THE [TRIAL] COURT ERRED AS A MATTER OF 

LAW AND/OR ABUSED ITS DISCRETION BY GRANTING 

[APPELLEE]’S PETITION FOR WRIT OF HABEAS CORPUS

DISMISSING COUNT 2, ENDANGERING THE WELFARE OF 

CHILDREN, 18 PA.C.S.A. § 4304(A)(1), FELONY THIRD 

DEGREE, OF THE CRIMINAL INFORMATION AS THE 

COMMONWEALTH MAINTAINS THAT A PRIMA FACIE CASE 

WAS PRESENTED BY THE COMMONWEALTH IN SUPPORT OF 

SAID CRIMINAL OFFENSE[?]

WHETHER THE [TRIAL] COURT ERRED AS A MATTER OF 

LAW AND/OR ABUSED ITS DISCRETION BY GRANTING 

[APPELLEE]’S PETITION FOR WRIT OF HABEAS CORPUS

DISMISSING COUNT [4], ENDANGERING THE WELFARE OF 

CHILDREN, 18 PA.C.S.A. § 4304(A)(1), FELONY THIRD 

DEGREE, OF THE CRIMINAL INFORMATION AS THE 

COMMONWEALTH MAINTAINS THAT A PRIMA FACIE CASE 
J-S25011-18

- 3 -

WAS PRESENTED BY THE COMMONWEALTH OF SAID 

CRIMINAL OFFENSE[?]

WHETHER THE [TRIAL] COURT ERRED AS A MATTER OF 

LAW AND/OR ABUSED ITS DISCRETION BY GRANTING 

[APPELLEE]’S PETITION FOR WRIT OF HABEAS CORPUS

DISMISSING COUNT [3], RECKLESSLY ENDANGERING 

ANOTHER PERSON, 18 PA.C.S.A. § 2705, MISDEMEANOR 

SECOND DEGREE, OF THE CRIMINAL INFORMATION AS THE 

COMMONWEALTH MAINTAINS THAT A PRIMA FACIE CASE 

WAS PRESENTED BY THE COMMONWEALTH OF SAID 

CRIMINAL OFFENSE[?]

WHETHER THE [TRIAL] COURT ERRED AS A MATTER OF 

LAW AND/OR ABUSED ITS DISCRETION BY GRANTING 

[APPELLEE]’S PETITION FOR WRIT OF HABEAS CORPUS

DISMISSING COUNT 5, RECKLESSLY ENDANGERING 

ANOTHER PERSON, 18 PA.C.S.A. § 2705, MISDEMEANOR 

SECOND DEGREE, OF THE CRIMINAL INFORMATION AS THE 

COMMONWEALTH MAINTAINS THAT A PRIMA FACIE CASE 

WAS PRESENTED BY THE COMMONWEALTH OF SAID 

CRIMINAL OFFENSE[?]

(Commonwealth’s Brief at 4-5). 

A pre-trial habeas decision is not subject to an abuse of discretion 

standard. Commonwealth v. Karetny, 583 Pa. 514, 880 A.2d 505 (2005). 

A pre-trial habeas decision on the Commonwealth’s prima facie case for a 

charged crime is a question of law subject to plenary review. 

Commonwealth v. Dantzler, 135 A.3d 1109, 1112 (Pa.Super. 2016) (en 

banc) (citing Karetny, supra). 

After a thorough review of the record, the briefs of the parties, the 

applicable law, and the well-reasoned opinion of the Honorable Richard A. 

Masson, we conclude the Commonwealth’s issues merit no relief. The trial 

court fully discusses and properly disposes of the questions presented. (See
J-S25011-18

- 4 -

Trial Court Opinion, filed June 30, 2017, at 1-11) (finding: (1-2) 2009 

conviction of Appellee’s brother, Scott Murphy, for drunken assault against 

Appellee was too remote in time and far too attenuated circumstantially to 

serve as proof of his propensity for violence; assault was against adult, not 

child and occurred seven years before O.M.’s death; one episode of inebriated 

assault against another adult is inadequate as prima facie evidence of requisite 

elements of involuntary manslaughter; Scott Murphy’s 2009 conviction does 

not constitute prima facie evidence of Appellee’s guilt of involuntary 

manslaughter; nothing in preliminary hearing record indicates that Appellee 

knew or how he should have known of atrocious and threatening conditions of 

Scott and Kristy Murphy’s home at time of O.M.’s death; no evidence

demonstrated Appellee was told of deplorable conditions or potentially 

threatening circumstances within home of Scott and Kristy Murphy during 

Children’s stay; similarly, Children’s Mother also contacted Scott and Kristy 

Murphy several times, but received no adverse information; Commonwealth 

failed to establish mens rea of recklessness regarding involuntary 

manslaughter charge against Appellee, because it failed to demonstrate 

Appellee knew and consciously disregarded risk in leaving Children in care of 

Scott and Kristy Murphy; (3-4) Commonwealth failed to present sufficient 

evidence to establish prima facie case for two counts of endangering welfare 

of children (“EWOC”) for same reasons; evidence failed to establish what if 

anything Appellee knew of conditions at Scott and Kristy Murphy’s home, 
J-S25011-18

- 5 -

which would indicate Children were in danger and require reasonable person 

to intervene; therefore, Appellee did not knowingly place Children in 

circumstances threatening to their welfare; (5-6) similarly, Commonwealth 

failed to establish prima facie case for two counts of reckless endangerment 

of another person (“REAP”), where Commonwealth presented no evidence to 

demonstrate Appellee knew Children were at risk of death or great bodily harm 

while Children stayed in home of Scott and Kristy Murphy). We agree. The 

record supports the trial court’s decision, and we have no reason to disturb it. 

See Karetny, supra. Accordingly, we affirm on the basis of the trial court’s 

opinion.

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/12/2018
Circulated 06/20/2018 10:50 AM 

IN THE COURT OF COMMON PLEAS OF THE FIFTY-NINTH 

JUDICIAL DISTRICT OF PENNSYLVANIA 

COMMONWEALTH OF PENNSYLVANIA * COUNTY BRANCH - ELK 

* 

VS. 

DANIEL J. MURPHY 

* CRIMINAL 

NO. CP-24-CR-135-2016 

MEMORANDUM OPINION 

Pending before the Court is a petition for writ of habeas corpus in the nature of a motion 

to dismiss all charges for failure to establish a prima facie case filed on behalf of the defendant, 

Daniel J. Murphy, on July 8, 2016. The hearing on the motion was conducted on November 3, 

2016, and a legal memorandum was subsequently provided by the Commonwealth. The 

defendant's petition for writ of habeas corpus challenges the sufficiency of the evidence 

presented during the June 8, 2016 preliminary hearing conducted before Magisterial District 

Judge James L. Martin as to the charges in the criminal complaint filed against him in which he 

was charged with one count of involuntary manslaughter, 18 Pa. C.S.A. § 2504(a); two counts of 

endangering welfare of children, 18 Pa. C.S.A. § 4304(a)(1); and two counts of recklessly 

endangering another person, 18 Pa. C.S.A. §2705. All of these charges were bound over to court 

by Magisterial District Judge Martin at the conclusion of the preliminary hearing. 

I) Count I: Involuntary Manslaughter 

In Count 1 of the criminal Information filed July 1, 2016, Daniel Murphy is charged with 

involuntary manslaughter, 18 Pa. C.S.A. §2504(a), incident to the death of his son, 0, /0,, 

who died on or about February 3, 2016. At the time of his death, am, was five years 

old 

For purposes of a preliminary hearing, it is not necessary to establish the accused's guilt 

beyond a reasonable doubt, but the Commonwealth must establish at least a prima facie case that 

1 
a crime has been committed and the accused is probably the one who committed it. Com v. McBride, 595 A.2d 589, 591 (Pa. 1991). "The evidence need only be such that, if presented at 

trial and accepted as true, the judge would be warranted in permitting the case to be decided by 

the jury." Coin. v. Karetny, 880 A.2d 505, 514 (Pa. 2005). 

Involuntary manslaughter is defined as the prohibited act: "when as a direct result of the 

doing of an unlawful act in a reckless or grossly negligent manner, or the doing of a lawful act in 

a reckless or grossly negligent manner; he causes the death of another person." 18 Pa. C.S.A. 

§2504(a). A person acts recklessly when "he consciously disregards a substantial and 

unjustifiable risk that the material element exists or will result from his conduct. The risk must 

be of such a nature and degree that, considering the nature and intent of the actor's conduct and 

the circumstances known to him, its disregard involves a gross deviation from the standard of 

conduct that a reasonable person would observe in the actor's situation." 18 Pa. C.S.A. § 

302(b)(3). 

While an offense may require an act to create criminal culpability, an omission to act may 

also create criminal culpability where a duty to perform is imposed by law. Corn. v. Howard, 402 

A.2d 674, 676 (Pa. Super. 1979). Such a duty is the legal duty imposed on parents to protect their 

children, and the discharge of this duty requires affirmative performance. Id at 676. In Howard, 

the defendant was found guilty of involuntary manslaughter as a result of her failure to protect 

her 5 year old daughter from acts of abuse committed by her boyfriend which occurred over 

several weeks and of which the defendant was cognizant. Id at 678. The defendant in Howard 

witnessed and had full knowledge of the continued pattern of abuse perpetrated by her boyfriend, 

which ultimately resulted in the child's death, but consciously disregarded the risk to the health 

and safety of the child. Id. The Howard court reasoned that this conscious disregard by the 

2 
defendant was a gross deviation from the standard conduct a reasonable parent would take under 

the circumstances. Id. It was the knowingly gross deviation from the standard conduct of a parent 

that created the criminal culpability which supported the finding that the defendant in Howard 

was guilty of involuntary manslaughter. 

In the present case, however, the Court finds that insufficient evidence was presented to 

establish a prima facie case against Daniel Murphy for involuntary manslaughter. The 

Commonwealth has promoted that given Daniel Murphy's knowledge of his brother Scott 

Murphy's propensity for violence and his failure to personally assure the physical, mental, and 

emotional health of his children, Daniel Murphy acted recklessly, violating his duty to protect 

his children, which ultimately placed a pi. ; in circumstances that lead to his death. 

The Commonwealth presented evidence that on December 3, 2015, Daniel Murphy 

delivered his sons, am. a.hit K. pg. to the apartment of Scott and Kristy 

Murphy, the children's paternal uncle and aunt who lived at 149 1/2 Main Street, Ridgway 

Borough, Elk County, Pennsylvania. 6/8/16 P.H. Tr., pgs. 76, 103. The reason provided by 

Daniel Murphy for leaving his children with Scott and Kristy Murphy was that he lacked 

appropriate housing for his children in Meadville, Pennsylvania. Id. at pgs. 93-94; 102-103. 

Daniel Murphy explained that his father, a registered sex offender, was moving in with him and 

it could implicate violations of Megan's Law if the children remained with him. Id. Being 

unable to move elsewhere and given the unavailability of the children's mother, Ashlee Druhot, 

in December 2015, Daniel Murphy sought the help of Scott and Kristy Murphy. Id. They 

entered into an arrangement whereby Scott and Kristy Murphy would have G.M. Ay, q K. M. 

temporarily live with them until Daniel Murphy could find appropriate housing for his children. 

3 
The Commonwealth's evidence also confirmed that Scott and Kristy Murphy had 

previously lived with Daniel Murphy, Ashlee Druhot, and the subject minor children in 

Meadville, Pennsylvania, albeit for a short period of time. According to Ashlee Druhot, "they 

had always loved their nephews just like anybody else would." 6/8/16 P.H. Tr., pg. 53. There 

was no evidence that Scott or Kristy Murphy have ever posed any type of threat to the children 

in general and 0,K. in particular. Rather, the evidence was that in the past Scott and Kristy 

were familiar with and loved their nephews. 

Upon arriving with the children at Scott and Kristy Murphy's apartment on December 3, 

2015, Daniel Murphy met Scott Murphy in the entryway of the 1491/2 Main Street apartment 

and talked for a few minutes while delivering Cm. .4 tc.m. before he left. Id. Daniel 

Murphy never inspected or surveyed the entire apartment and there was no evidence of any 

adverse environmental issue present in the apartment when Daniel Murphy delivered his 

children. Without some evidence that Daniel Murphy knew or should have known about the 

intolerable conditions that existed when law enforcement officials viewed the apartment on 

February 3, 2016, he cannot be held to be omniscient. On several occasions between December 

3, 2015 and. February 3, 2016, Daniel Murphy talked on the phone with his children and Scott 

Murphy. However, no evidence was presented that would indicate Daniel Murphy was told of 

the allegedly deplorable conditions or the potentially threatening circumstances that existed 

within the 149 1/2 Main Street apartment. This was confirmed by Ashlee Druhot, who in relaying 

that she and her mother had contacted Scott and Kristy Murphy on several occasions, never 

indicated she received any adverse information. 6/8/16 P.H. Tr., pg. 51. 

The Commonwealth also presented written statements by Daniel Murphy and Ashlee 

Druhot that were provided to the Meadville Police Department in an investigation that led to a 

4 
simple assault conviction of Scott Murphy. That conviction arose from an incident in 2009, 

when an intoxicated Scott Murphy attacked his brother, Daniel Murphy, with a knife. No 

children were present, let alone involved or harmed during the incident and this was the only 

evidence presented regarding any criminal convictions for Scott Murphy or his having any 

tendency to engage in assaultive behaviors. 

The preliminary hearing evidence presented does not even remotely approach the 

threatening circumstances described in Howard in which the defendant consciously disregarded 

a substantial and unjustified risk. To the contrary, there was no evidence that Daniel Murphy 

was aware or should have been aware of the allegedly unsanitary and abysmal environment in 

which his children were living on February 3, 2016. When Daniel Murphy dropped off am n4 

K. An. at Scott and Kristy Murphy's apartment on December 3, 2015, he did not enter the 

apartment, but stayed in the doorway or entryway. Nothing in the record indicates that the 

condition of the entryway would suggest the remaining areas of the apartment were in any 

condition unfit for children. Moreover, on several occasions, Daniel Murphy talked on the 

telephone with O.M. ) K. M. and Scott Murphy while his children were staying with their 

uncle and aunt. The record is devoid of any evidence that during these telephone calls Daniel 

Murphy received any information regarding the allegedly execrable conditions in the apartment 

or of any potential threats to his children. In fact, Daniel Murphy assured Ashlee Druhot, the 

mother of Km--; that the children were fine and in good health. 6/8/16 P.H. Tr., 

pgs. 53-55. There is nothing in the preliminary hearing record to indicate that Daniel Murphy 

had knowledge of or should have had knowledge of the allegedly atrocious conditions and 

threatening circumstances that existed within Scott and Kristy Murphy's apartment at the time 
of arA. death. Thus, Daniel Murphy neither knew of nor should have known of the 

existence of circumstances that threatened 0.1m.. 

Scott Murphy's conviction for the 2009 assault of Daniel Murphy is too remote in time 

and far too attenuated circumstantially to evidence his propensity for violence. The incident that 

gave rise to the charges occurred some seven years before the death of 0.114. and involved 

Scott Murphy's adult brother, Daniel Murphy, as the victim, not a child. The attempt to expand 

one episode of an inebriated assault on an adult brother that occurred before the birth of 0.m 

is inadequate as even prima facie evidence of the requisite elements of involuntary 

manslaughter. 

Without a known risk which Daniel Murphy consciously disregarded or a risk that 

Daniel Murphy should have known and appreciated, the reckless element cannot be met. 

Therefore, this Court finds that the Commonwealth failed to establish a prima facie case for 

involuntary manslaughter and Daniel Murphy is entitled to dismissal of Count 1 of the criminal 

Information. 

2) Counts 2 and 4: Endangering the Welfare of Children 

In Counts 2 and 4 of the criminal Information, Daniel Murphy was charged with 

endangering welfare of children (EWOC), 18 Pa. C.S.A. § 4304(a)(1), for ar . anA 

respectively. The elements of the offense of EWOC include "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.A. § 4304(a)(1). The crime of EWOC 

is a specific intent offense, with the mens rea element being that of a knowing violation of a duty 

of care. Com. v. Cardwell, 515 A.2d 311, 313 (Pa. Super. 1986); Corn. v. Smith, 956 A.2d 1029 

6 
(Pa. Super. 2008). A defendant acts knowingly when, 1) "the accused 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 

or meager that such actions cannot reasonably be expected to be effective to protect the child's 

physical or psychological welfare." Corn. v. Lynn, 114 A.3d 796 (Pa. 2015) (finding the EWOC 

conviction of a high-ranking official for the archdiocese was supported, where the defendant in 

Lynn knowingly endangered the child victim's welfare where he knew of his duty to protect the 

welfare of children within the archdiocese, he believed a priest to be guilty of sexual misconduct 

with minors, he did not inform parishioners about priest's misconduct, and that concerns had 

been expressed to him about the priest shortly before the priest assaulted the child victim, 

although he did not have direct contact with the children in archdiocese). 

Here, the Court finds that the Commonwealth failed to present sufficient evidence to 

establish a prima facie case for two counts of EWOC, 18 Pa. C.S.A. § 4304(a)(1). The first prong 

of knowingly was met, because Daniel Murphy was aware of his duty to protect' 0.wi. at K.m.) as evidenced through his care of the children in Meadville, Pennsylvania, his arranging 

for them to live in an alternate residence, and through his telephone calls with 0. n. , k. ri4., 

and Scott Murphy in order to check on his children. However, the second prong of knowingly 

was not met, as Daniel Murphy was not aware there were circumstances that may have 

threatened the children's physical or psychological welfare. As indicated above, the extent of the 

evidence presented by the Commonwealth merely established that Daniel Murphy's knowledge 

of the situation his children were staying in was the state of the entryway when he dropped off 

his children on December 3, 2015, and through telephone conversations with K. rii.) 

and Scott Murphy. Based on that knowledge, Daniel Murphy reported to Ashlee Druhot the 

7 
children were all right and in good health and she herself did not have any concerns based on her 

phone calls and those of her mother with Scott Murphy. Further, Scott Murphy's 2009 simple 

assault conviction is far too remote in time to evidence that Daniel Murphy, notwithstanding that 

he was the assault victim, should have known or should have reasonably known of his brother's 

ongoing proclivity for violence, because the incident that gave rise to that charge occurred some 

seven years before the death of and there was no evidence of similar behavior by Scott 

Murphy after the 2009 episode. The assault perpetrated by Scott Murphy on his brother, Daniel 

Murphy, before the subject children were born cannot by any reasonable exercise of 

extrapolation suffice as even a prima facie basis to establish that Daniel Murphy committed two 

counts of the crimes of EWOC. Nothing Daniel Murphy knew would indicate his children were 

in any type of danger that would cause a reasonable person to affirmatively intervene. Therefore, 

Daniel Murphy did not knowingly place his children in circumstances that would be a threat to 

their welfare. Com. v. Lynn, 114 A.3d 796. 

With the crime of EWOC being a specific intent crime, the intent element requires a 

knowing violation of a duty of care. Corn. v. Cardwell, 515 A.2d 311, 313 (Pa. Super. 1986); 

Com. v. Smith, 956 A.2d 1029 (Pa. Super. 2008). The evidence presented by the Commonwealth 

clearly did not demonstrate that based on Daniel Murphy's knowledge between December 3, 

2015 through February 3, 2016, he actually had any notice of a risk of harm or of circumstances 

that threatened the welfare of a rt4. MC or might befall his children while in the care of 

their paternal uncle and aunt, Scott and Kristy, Murphy, nor did the Commonwealth present 

prima facie evidence that Daniel Murphy should have known about some appreciable risk that 

his children were exposed to. Therefore, Daniel Murphy did not knowingly endanger the welfare 

of 0.r.n. d,, \CM and a prima facie case against Daniel Murphy for two counts of 
endangering welfare of children was not established. Daniel Murphy is thus entitled to the relief 

requested in having Counts 2 and 4 of the criminal Information dismissed. 

3) Counts 3 and 5: Recklessly Endangering Another Person 

In Counts 3 and 5 of the criminal Information, Daniel Murphy was charged with 

recklessly endangering another person (REAP), 18 Pa. C.S.A. §2705, namely his two sons, 

0. ink. 4,4 K. M. This crime includes the following prohibited act: when "[a person] 

recklessly engages in conduct which places or may place another person in danger of death or 

serious bodily injury." 18 Pa. C.S.A. §2705. Specifically, this crime requires that a defendant 

have a 1.) mens rea of recklessness, 2.) engage in some conduct 3.) that places another person in 

danger, and 4.) the achievement of placing another person in danger of death or serious bodily 

injury. Com. v. Trowbridge, 395 A.2d 1337, 1340 (Pa. Super. 1978). 

The mens rea element of the offense has been defined as "a conscious disregard of a 

known risk of death or great bodily harm to another person." Com. v. Hopkins, 747 A.2d 910, 

916 (Pa. Super. 2000). A conscious disregard entails awareness or mindfulness of a discernible 

recognizable risk, such as brandishing a loaded firearm in the commission of a crime. Corn. v. Peer, 684 A.2d 1077,.1080-1081 (Pa. Super. 1996). The Commonwealth presented no evidence 

to demonstrate that Daniel Murphy knew his two sons, O. Pk. ant K. nn. , were at risk of death 

or great bodily harm by virtue of being maintained in the apartment of Scott and Kristy Murphy, 

their paternal uncle and aunt. Furthermore, Daniel Murphy's criminal culpability cannot rest on a 

mere presumption that he should have been able to forecast harm befalling his children, 

particularly when no concerns were raised when Daniel Murphy dropped his children off at Scott 

and Kristy Murphy's apartment or when he spoke directly with a m. , K. , and Scott 

Murphy over the phone during the following weeks. 
In addition to the mens rea requirement, the Commonwealth must have presented prima 

facie evidence that Daniel Murphy did something that placed the children in danger. "Danger, 

and not merely the apprehension of danger, must be created by the defendant." Corn. v. Hopkins, 

747 A.2d at 916. Daniel Murphy sought the assistance of Scott and Kristy Murphy when he was 

unable to provide proper housing for i apt aa,t )(.M.) in part due to the impending return of 

Daniel Murphy's father, a registered sex offender. The arrangements for maintaining ; 0.itt. 

444 K.rvt. were to be temporary until Daniel Murphy could secure employment and alternate 

housing. 6/8/16 P.H. Tr., pg. 105. Between December 3, 2015 and February 3, 2016, Daniel 

Murphy remained in contract with his children through telephone calls in which he spoke with 

b. nn.) K. An.. and Scott Murphy. Nothing that was disclosed to or known by Daniel Murphy 

would have raised any concerns that would cause a reasonably prudent parent to seek immediate 

intervention to remove the children. 

While an offense may require an act to create criminal culpability, an omission to act may 

also create criminal culpability where a duty to perform is imposed by law as well. Corn v. Cottam, 616 A.2d 988, 993 (Pa. Super. 1992). Such a duty is the legal duty imposed on parents 

to protect their children and the discharge of this duty requires affirmative performance. Id. 

Unlike in Cottam, however, where the defendants maintained custody and control of their 14 - year -old son who died of starvation and their 12 -year -old daughter who was severely 

malnourished, Daniel Murphy did not have any direct face-to-face contact with his sons in the 

two months after delivering the children to Scott and Kristy Murphy's apartment. Again, for the 

purpose of establishing reckless endangerment, there must be an actual present ability to inflict 

harm, not merely the apprehension of danger. Corn. v. Reynolds, 835 A.2d 720, 727 (Pa. Super. 

10 
2003). Not only was there no evidence that Daniel Murphy inflicted any harm, there was no 

evidence that he apprehended or perceived any risk of danger to his children. 

The Court finds that insufficient evidence was presented by the Commonwealth to 

establish a prima facie case against Daniel Murphy for two counts of recklessly endangering 

another person. As indicated above, the extent of evidence regarding Daniel Murphy's 

knowledge of the condition of his children after he delivered them to Ridgway, Pennsylvania, 

was through telephone conversations between 0. M. K. M., and Scott Murphy, and there was 

no evidence that any phone conversation or any other information source indicated the children 

were in any danger that would cause a reasonable person to intervene. With no prospective, let 

alone viable, risk known to Daniel Murphy, there was nothing for him to consciously disregard 

or anything to require him to affirmatively perform. Therefore, a prima facie case against Daniel 

Murphy for two counts of recklessly endangering another person was not established and Counts 

3 and 5 of the criminal Information are dismissed. 

June 50, 2017 

By the Court: 

hard A. Masson, President Judge 

E 

JUN 3 0 2011 

ELK COLINDI PROTHONOTARY SCAN a