### 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA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 WEIG HING THE 2009 CONVICTION OF SCOTT MURPHY ASSAULTI NG [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 COU NT 1, INVOLUNTARY MANSLAUGHTER, 18 PA. C.S.A. § 2503(A), MISDEMEANOR FIRST DEGREE, OF THE CRIMINAL INFORMATION AS THE COMMONWEALTH MAINTAI NS 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 CRIMI NAL 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 CRIMI NAL INFORMATION AS THE COMMONWEALTH MAINTAI NS THAT A PRIMA FACIE CASE

### J-S25011 - 18

- 3 - WAS PRESENTED BY THE COMMONWEALTH OF SAI D 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 TH E CRIMINAL IN FORMATION AS THE COMMONWEALTH MAINTAI NS THAT A PRIMA FACIE CASE WAS PRESENTED BY THE COMMONWEALTH OF SAI D 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 ENDANGERI NG ANOTHER PERSON, 18 PA.C.S.A. § 2705, MISDEMEANOR SECOND DEGREE, OF TH E CRIMINAL INFORMATION AS THE COMMONWEALTH MAINTAI NS THAT A PRIMA FACIE CASE WAS PRESENTED BY THE COMMONWEALTH OF SAI D 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 Appel lee 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) sim ilarly, 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: 7/12/2018Circulated 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 

### ofhabeas corpus in the nature 

### ofa 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 

### ofhabeas corpus challenges the 

### sufficiency 

### ofthe 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 

### ofrecklessly endangering another person, 18 Pa. C.S.A. §2705. All 

### ofthese charges were bound 

### over to court by 

### Magisterial District Judge 

### Martin at 

### the conclusion of the 

### preliminary hearing. 

### I) Count 

### I: InvoluntaryManslaughter In 

### Count 1 

### ofthe criminal 

### Information filed July 1, 2016, Daniel Murphy is charged with 

### involuntary manslaughter, 18 Pa. C.S.A. §2504(a), incident to 

### the death 

### ofhis son, 

# 0,/0,, who died on or about 

### February 3, 2016. At 

### the time 

### ofhis 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

1a 

### 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, 

### ifpresented 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 

### ofthe 

### 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 

### ofanother 

### 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 

### ofthe 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 

### ofthis duty requires affirmativeperformance. 

### Id at 676. In Howard, the 

### defendant was found guilty 

### ofinvoluntary manslaughter as a result 

### of her failure to protect 

### her 5 

### year old daughter from acts 

### ofabuse committed by her boyfriend which occurred over 

### several weeks and 

### ofwhich the defendant was cognizant. 

### Id at 678. The defendant in Howard 

### witnessed and had full 

### knowledge 

### ofthe 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 

### ofhis brother Scott 

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

### emotional health 

### ofhis 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 evidencethat 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 

### ifthe children remained with him. Id. Being 

### unable to move elsewhere and 

### given the 

### unavailability ofthe 

### children's mother, Ashlee Druhot, 

### in December 2015, Daniel Murphy sought the 

### help 

### ofScott 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.

3The 

### 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 

### ofthe 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 

### ofthe entryway would suggest the 

### remaining areas 

### ofthe 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 

### ofor 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 ofnor should have known 

### of the 

### existence 

### ofcircumstances 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 

### ofthe requisite elements 

### ofinvoluntary 

### 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 manslaughterand 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 

### ofthe 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 

### ofthe offense 

### of EWOC include "a parent, guardian or other person 

### supervising the welfare 

### of a child under 18 years 

### ofage, or a person that employs or supervises such a 

### person, commits an offense 

### if he 

### knowingly endangers the welfare 

### ofthe 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 

### ofhis 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 

### ofhis duty to protect the 

### welfare 

### ofchildren within the archdiocese, he believed a priest to be guilty 

### ofsexual 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 

### ofhis duty to 

### protect' 0.wi. at K.m.) as 

### evidenced through his care 

### ofthe 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 

### ofknowingly

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 

### ofthe 

### evidence 

### presented by the 

### Commonwealth merely established 

### that Daniel 

### Murphy's knowledge 

### ofthe 

### situation his children were staying in was the state ofthe 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 

### ofher 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 

### ofhis 

### 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 

### ofthe 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 

### ofcare. 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 

### ofa risk 

### ofharm 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 

### ofchildren was 

### not established. Daniel Murphy is thus entitled to the 

### relief requested in having Counts 2 and 4 

### ofthe 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 

### ofrecklessness, 2.) engage in some conduct 3.) that places another person in 

### danger, and 4.) 

### the achievement 

### ofplacing another person in danger 

### ofdeath 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 

### ofa 

### 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 

### ofa discernible 

### recognizable risk, such as 

### brandishing a loaded firearm in the 

### commission 

### ofa 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 

### ofdeath



### 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 DanielMurphy 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 

### ofthis duty requires affirmative performance. Id. 

### Unlike in Cottam, however, where the defendants maintainedcustody and control 

### oftheir 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.

102003). 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 ofrecklessly 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