J-A29031-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

SEAN J. DICKSON 

Appellant

:

:

:

:

:

:

:

:

:

 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 550 WDA 2019

Appeal from the Judgment of Sentence Entered February 26, 2019

In the Court of Common Pleas of Armstrong County Criminal Division at 

No(s): CP-03-CR-0000158-2018

BEFORE: BENDER, P.J.E., KUNSELMAN, J., and PELLEGRINI, J.*

MEMORANDUM BY PELLEGRINI, J.: FILED JANUARY 2, 2020

Sean J. Dickson (Dickson) appeals from the judgment of sentence 

imposed in the Court of Common Pleas of Armstrong County (trial court) 

following his jury conviction of one count each of possession of a controlled 

substance and endangering the welfare of a child (EWOC).

1

 Dickson

challenges his EWOC conviction on appeal. We are constrained to reverse his 

conviction for EWOC.

On January 3, 2018, police executed a search warrant on the residence 

of 432 Reynolds Avenue with the objective of confiscating narcotics. Dickson, 

his then-girlfriend, Melonie Johns (Johns), and one female child (Child) were

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 35 P.S. § 780-113(a)(16) and 18 Pa.C.S. § 4304(a)(1).
J-A29031-19

- 2 -

present at the time of the search, in a bedroom. Police recovered from that 

bedroom a lockbox containing five grams of crack cocaine and drug 

paraphernalia (including razor blades and a scale) and a glass skull-shaped 

cup on the tip of a dresser containing methamphetamine residue. The lockbox 

was locked and the keys were on Dickson’s person.

On February 26, 2019, the trial court sentenced Dickson to a term of 

not less than ten nor more than twenty-four months’ incarceration on the 

EWOC offense and no further penalty on the possession of a controlled 

substance charge. The grading of the EWOC offense was increased because 

of the young age of the Child.2 Dickson filed a post-sentence motion that the 

trial court denied. Dickson timely appealed and he and the trial court complied 

with Rule 1925. See Pa.R.A.P. 1925(a)-(b).

Dickson challenges the sufficiency of the evidence supporting his EWOC 

conviction.

3

 We begin by addressing his argument that the Commonwealth 

____________________________________________

2 See 18 Pa.C.S. § 4304(b)(2), infra (providing for increased grading where

child is under age of six).

3

In Commonwealth v. Smith, 206 A.3d 551, 557 (Pa. Super. 2019), appeal 

denied, 2019 WL 3886668 (Pa. filed Aug. 19, 2019), we stated:

The standard we apply in reviewing the sufficiency of the evidence 

is whether viewing all the evidence admitted at trial in the light 

most favorable to the verdict winner, there is sufficient evidence 

to enable the fact-finder to find every element of the crime beyond 

a reasonable doubt. In applying the above test, we may not weigh 

the evidence and substitute our judgment for the fact-finder. In 

addition, we note that the facts and circumstances established by 
J-A29031-19

- 3 -

failed to meet its burden regarding the intent element of the crime, i.e., that 

he knowingly violated a duty of care to the Child, as it is dispositive of our 

decision.

4

 (See Dickson’s Brief, at 13-17).

The EWOC statute provides, in relevant part, as follows:

(a) Offense defined.—

(1) A parent, guardian or other person supervising the 

welfare of a child under 18 years of age, or a person that employs 

or supervises such a person, commits an offense if he knowingly 

endangers the welfare of the child by violating a duty of care, 

protection or support.

18 Pa.C.S. § 4304(a)(1).

____________________________________________

the Commonwealth need not preclude every possibility of 

innocence. Any doubts regarding a defendant’s guilt may be 

resolved by the fact-finder unless the evidence is so weak and 

inconclusive that as a matter of law no probability of fact may be 

drawn from the combined circumstances. The Commonwealth 

may sustain its burden of proving every element of the crime 

beyond a reasonable doubt by means of wholly circumstantial 

evidence. Moreover, in applying the above test, the entire record 

must be evaluated and all evidence actually received must be 

considered. Finally, the finder of fact [,] while passing upon the 

credibility of witnesses and the weight of the evidence produced 

is free to believe all, part or none of the evidence.

(citation omitted).

4 Dickson also contends that the Commonwealth presented no evidence 

showing that he was the parent, legal guardian or person supervising the 

welfare of the Child, as required by the statute; it merely established his 

cohabitation at the residence. He also contests the increased grading of the 

offense because the evidence was insufficient to establish that the Child was 

less than six years old.
J-A29031-19

- 4 -

“[T]he [EWOC] statute is protective in nature, and must be construed 

to effectuate its broad purpose of sheltering children from harm.” 

Commonwealth v. Spanier, 192 A.3d 141, 150 (Pa. Super. 2018), appeal 

denied, 203 A.3d 199 (Pa. 2019) (citation omitted). “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.” 

Id. at 151 (citation omitted).

We are also mindful that “[t]he crime of endangering the welfare of a 

child is a specific intent offense.” Commonwealth v. A.R.C., 150 A.3d 53, 

57 (Pa. Super. 2016). “The intent element under section 4304 is a knowing 

violation of a duty of care.” Id. (citation omitted). The three-prong standard 

to establish the knowing element of intent of EWOC is the: “(1) accused must 

be aware of duty to protect child; (2) accused must be aware that child is in 

circumstances that could threaten child’s physical or psychological welfare;

and (3) accused either must have failed to act, or must have taken action so 

lame or meager that actions cannot reasonably be expected to protect child’s 

welfare.” Id. (citation omitted).

At trial, Police Officer Gregory Koprivnak, who participated in executing 

the warrant, testified that the lockbox containing the crack cocaine had a lock 

on it when he found it, and that police forcibly opened it. (See N.T. Trial, 

10/11/18, at 24-25, 28-29). Detective Phillip Young testified that he broke 
J-A29031-19

- 5 -

the lockbox in order to open it. (See id. at 63). Regarding the 

methamphetamine residue, the record reflects that it was located on an object 

on the top of the dresser and that the small amount was residue and not 

weighable. (See id. at 70, 98-101).

After review of the record, we agree with Dickson’s contention that the 

mere possession of controlled substances located in items locked and/or 

inaccessible to a child does not, by itself, threaten the child’s physical or 

psychological welfare. Because we conclude that the evidence was insufficient 

to sustain Dickson’s EWOC conviction, that conviction is reversed.

However, Dickson does not challenge his possession conviction on which 

he was sentenced without further penalty. Guilt without penalty constitutes 

a sentence. See 42 Pa.C.S. § 9721(a)(2); Commonwealth v. Williams, 

997 A.2d 1205, 1206 (Pa. Super. 2010). Because our reversal of the EWOC 

conviction upsets the trial court’s sentencing scheme, we must remand to the 

court for resentencing on the possession of a controlled substance charge.

Conviction for EWOC reversed. Case remanded to the trial court for 

resentencing on the controlled substance charge. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/2/2020
J-A29031-19

- 6 -