J-A20037-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

BRITTANY WHITE 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1535 EDA 2020

Appeal from the Judgment of Sentence Entered February 19, 2020

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

No(s): CP-51-CR-0001999-2019

BEFORE: STABILE, J., McCAFFERY, J., and PELLEGRINI, J.*

MEMORANDUM BY PELLEGRINI, J.: FILED SEPTEMBER 08, 2022

Brittany White (White) appeals from the judgment of sentence imposed 

in the Court of Common Pleas of Philadelphia County (trial court) after her 

waiver trial conviction of aggravated assault (F1), endangering the welfare of 

a child (EWOC) (F1 and F2), recklessly endangering another person (REAP) 

(M2) and simple assault (M2).

1

 She challenges the denial of a motion in 

limine, the sufficiency of the evidence where her expert offered a viable 

alternative explanation, the sufficiency of the evidence to support EWOC as a 

first-degree felony, and the legality of her sentence where the EWOC counts 

should have merged and she was not provided a pre-sentence hearing on 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S. §§ 2702(a), 4304(a)(1), 2705 and 2701(a), respectively.
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ability to pay costs. We vacate the judgment of sentence for second-degree 

felony EWOC and affirm in all other respects.

We take the following factual background and procedural history from 

the trial court’s October 7, 2021 opinion and our independent review of the 

record.

I.

On March 29, 2019, the Commonwealth filed an Information against 

White charging her with the above crimes related to injuries suffered by her 

sixteen-month-old stepdaughter (Child). The court held a one-day non-jury 

trial on December 6, 2019. Prior to trial, White filed a motion in limine seeking 

to preclude the Commonwealth’s expert, Dr. Norrell Atkinson, from testifying 

in terms of a “reasonable degree of scientific certainty” which the court denied. 

The following evidence was adduced at trial.

A.

White was the primary caretaker of Child because Child’s father worked 

as a truck driver. (See N.T. Trial, 12/06/21, at 34-35). Child “didn’t go to 

daycare” and “was always home wit[h] her[.]” (See id. at 119). On the date 

of the incident, White was home with Child and her other children. (See id.

at 106). The three older children were upstairs in their bedrooms, and Child 

and a younger five-month-old baby were downstairs with White. According to 

White, she left Child alone on the stairs where she allegedly did therapy with 

her to increase her motor function and went into the adjoining kitchen to put 
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a baby bottle in the sink. (See id. at 106-07, 122-23). She stated that, 

within a minute, she heard a series of thumps and a “pop” and rushed back 

into the living room where she found Child laying at the bottom of the stairs

attempting to sit up. (See id. at 107, 124). When she picked up Child, her 

leg was “dangling.” (See id. at 109). She claimed that Child must have fallen 

down approximately three to five stairs and that Child did not cry as a result, 

testimony the court found incredible and unbelievable. (See id. at 108-09); 

(Trial Court Opinion, 10/07/21, at 2) (pagination provided). Upon finding 

Child, she placed her on the couch to eat cereal, called Child’s father and they 

took Child to Einstein Medical Center. (See N.T. Trial, at 109-10, 126). The 

time lapse between the fall and Child’s presentation at the emergency room 

was approximately fifteen minutes. (See id. at 127-28).

Child also had bruising to her eye, which White maintained was caused 

by a fall on an ottoman. (See id. at 30). She also claimed that Child caused 

severe scratches on her neck by scratching her eczema that required White to 

change the bloody sheets, which the trial court did not believe. (See id. at 

112, 190-91) (“[I]f you are trying to tell me that in the middle of the night, 

this young girl, 15 months old, is scratching herself so furiously to the point 

where she was bleeding and you have to change the sheet and you never 

heard a word ... I can’t believe that.”). Hospital staff suspected child abuse 

and consulted Dr. Atkinson, a child abuse specialist as St. Christopher’s 

Hospital. (See id. at 23-24).
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B.

Dr. Atkinson testified as the Commonwealth’s expert witness. Dr. 

Atkinson specializes in child abuse pediatrics, has evaluated hundreds of cases 

involving child injuries, authored articles on pediatric injuries from falling and

taught same. (See id. at 13-15). She has been board certified in pediatrics 

since 2011 and child abuse pediatrics since 2015.

She explained that Child presented at Einstein Medical Center with 

fractures to her right femur, lower left tibia and lower right tibia. (See id. at 

22-23). Although the doctor was not able to give the precise age of the 

fractures, she opined they were about a few days old. (See id. at 42). Child 

also had bruising to her left eye, a scar on her right eye, various scarring and 

marks on her extremities, a torn frenulum (tissue connecting lip and gum) 

and, after x-rays and skeletal survey, a fracture to her left forearm was 

discovered. (See id. at 23-24, 26, 30).

Dr. Atkinson recounted how, when she asked White how Child was 

injured, White said:

[S]he had been home with [Child] on November the 8th. Dad was 

at work. She was home with [Child] as well as her siblings. She 

had placed [Child] on the stairs for—she had reported she did kind 

of therapeutic exercises with her on the stairs and so had put her 

on the stairs to crawl. She reported that she briefly went into the 

kitchen to get a bottle for the younger baby, and while in the 

kitchen, heard a tumbling and then came to find [Child] at the 

bottom of the steps. She had heard a pop. [Child] was—started 

sitting or trying to sit up as she came in, and when she picked her 

up, she noticed her right leg was hanging.
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(See id. at 28-29). White also told Dr. Atkinson that Child’s scar on her right 

eye was due to a fall on an ottoman and that she was not certain what caused 

the left eye bruise or the frenulum tear. (See id. at 30).

Dr. Atkinson opined that the scarring under Child’s chin/on the neck 

were consistent with a pattern of injuries caused by the fingernails of another 

person. (See id. at 31-32). These areas were white in color and the top layer 

of skin was removed, which could not have been done by Child simply 

scratching eczema, as White had alleged. She stated that they and her torn 

frenulum were healing at the time of Child’s hospital admission. (See id. at 

42).

The doctor testified that Child’s multiple fractures could not have been 

caused by the type of fall claimed by White because there was not enough 

force, specifically stating that the four fractures were “way more injury than 

should be expected in the setting of a short fall.” (See id. at 38-40). She 

explained that the different forces necessary to cause the diverse types of 

breaks on various parts of Child’s body could not be generated by a fall down 

three to five steps. (See id. at 44-45). Although she was not able to identify 

the precise age of the fractures, the doctor opined that they had occurred 

within the last few days. (See id. at 42). She rejected White’s claim that 

Child injured her eye by falling on an ottoman. (See id. at 43).

Child also had delayed motor functions, being unable to walk without 

support at sixteen months of age, and her weight was below the third 
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percentile, classifying her as failure to thrive. (See id. at 26-27). Based on 

Dr. Atkinson’s review of Child’s medical history, there was nothing that would 

have predisposed her to any of the injuries. (See id. at 31).

When Dr. Atkinson saw Child for a follow-up visit after she had been in 

foster care for approximately three weeks, “the bruise was gone. Her mouth 

was healed and [it] looked as though there were no new injuries on exam.” 

(See id. at 47). Dr. Atkinson affirmed that all opinions and testimony were 

given to a reasonable degree of medical certainty. (See id. at 56). The trial 

court “found Dr. Atkinson’s testimony to be credible, authoritative and 

accepted same as true.” (Trial Ct. Op., at 2) (pagination provided).

C.

Raquel Vraakm, a child abuse investigator from the Department of 

Human Services (DHS), met with Child, White, Child’s father, her paternal 

grandmother and hospital staff on November 9, 2018. (See N.T. Trial, at 84). 

White’s story to her about what had happened to Child was mostly consistent 

with what she told Dr. Atkinson, although Ms. Vraakm testified that White had 

told hospital staff at Einstein Medical Center “that [Child] was crawling around 

screaming in the home and must have gotten up the stairs and fell down.” 

(See id. at 87).

Ms. Vraakm described White’s interactions with Child as “awkward” and 

noted that “[t]he terms or verbiage she used to console [C]hild was not of 

normal bonding that we typically see with mother/child, stepmother and 
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child.” (See id. at 88). Although White did not seem to express concern for 

Child, her interaction with her biological children was notably different, with 

her “being all, kissing, cooing, stuff like that to the [other] child that was 

present at the hospital.” (See id. at 89).

The day after the interview, Ms. Vraakm removed Child from her 

parents’ custody and placed her in foster care. (See id. at 90). She saw 

notable changes in Child when she saw her three weeks later. “She was much 

more interactive. She was feeding herself. She was sitting in a highchair. 

She was interacting with the foster parent. She was making ... sounds at me.” 

(See id. at 91). Child also appeared physically bigger and her skin had 

completely cleared.

D.

Biomechanical engineer Kurt Laurence Thibault testified as an expert on 

behalf of White. His research background and Ph.D. were in researching and 

studying how the human body develops and affects the overall response to 

impact. (See id. at 136-45). He studied “how immature head and tissues 

become suited on the skull,” “the function of age in development” and “how 

those properties affect the overall response to impact.” (See id. at 140-41). 

Mr. Thibault used child crash test dummies to measure how the forces of 

impact correlated with skull fractures. (See id. at 154-56). He opined that 

Dr. Atkinson’s opinions were flawed because they are not based on science, 

and that Child’s fall could have caused her injuries. (See id. at 156-60). He 
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hypothesized that because an individual could simultaneously fall to her hands 

and knees, while hitting “anything in those load paths,” Child could also 

theoretically suffer the various fractures at the same time. (See id. at 158). 

He stated that the force generated by Child’s fall could generate and dissipate 

in the same manner as a car going from being in motion to a full stop, and 

that “a single fall does not mean there could not be multiple injuries. For a 

single car accident you can have multiple injuries.” (In other words, the 

human body, upon full stop, would first put pressure on its contact point at

the point of impact, and then the mass of the body would continue to travel 

for a brief time, resulting in the fractures. (See id.).

Accepting Dr. Atkinson’s testimony over the testimony of Mr. Thibault, 

the trial court convicted White of all charges, imposing a term of not less than 

four nor more than eight years’ incarceration on the charge of aggravated 

assault and a consecutive term of five years’ probation on the first-degree 

EWOC conviction, plus mandatory court costs in the amount of $757.57. (See

Guilty Sentencing Order, 2/19/20, at 1-2). It did not impose any further 

penalty on the charges of second-degree EWOC, simple assault or REAP. 

White timely filed a notice of appeal and a statement of errors complaint of on 

appeal pursuant to the trial court’s order. See Pa.R.A.P. 1925(b).

She raises five questions for our review: (1) whether the trial court 

erred in denying her motion in limine to preclude Dr. Atkinson from using the

phrase, “a reasonable degree of scientific certainty;” (2) whether the evidence 
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was insufficient to sustain her conviction where the Commonwealth did not 

establish that Child’s injuries were the result of knowing, intentional or 

reckless conduct since Mr. Thibault refuted Dr. Atkinson’s testimony; (3) 

whether the evidence was insufficient to establish first-degree EWOC where it 

did not prove that White knowingly engaged in a course of conduct that 

endangered Child’s welfare; (4) whether the court imposed an illegal sentence 

by failing to merge the two counts of EWOC; and (5) whether the court 

imposed an illegal sentence when it failed to conduct an ability to pay hearing

to determine if White could pay for court costs and probation supervision. 

(See White’s Brief, at 5-6).

II.

A.

White first argues that the trial court erred in denying her motion in 

limine and allowing Dr. Atkinson to use the phrase, “a reasonable degree of 

medical certainty.” (See id. at 24).2 She maintains that the phrase is 

irrelevant and prejudicial because it can mislead the court into believing a 

conclusion based on use of that language alone. In support of her position, 

she provides an extensive history of the term, a statement from the National 

____________________________________________

2 [W]hen reviewing the denial of a motion in limine, “we apply an evidentiary 

abuse of discretion standard of review. Thus, we review the denial of the 

motion for an abuse of discretion.” Commonwealth v. Hitcho, 123 A.3d 

731, 747 (Pa. 2015) (citations and internal quotation marks omitted).
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Commission on Forensic Science that the standard lacks scientific meaning 

and guidance from the Department of Justice that its experts refrain from 

using the phrase. (See id. at 24-34). The Commonwealth responds that 

these guidelines are not binding and are contrary to Pennsylvania law, which 

requires medical experts to testify to a reasonable degree of medical 

certainty.3 (See Commonwealth’s Brief, at 15).

“A motion in limine is used before trial to obtain a ruling on the 

admissibility of evidence. It gives the trial judge the opportunity to weigh 

potentially prejudicial and harmful evidence before the trial occurs, thus 

preventing the evidence from ever reaching the jury.” Commonwealth v. 

Reese, 31 A.3d 708, 715 (Pa. Super. 2011) (citation omitted).

A witness who is qualified as an expert by knowledge, skill, 

experience, training, or education may testify in the form of an 

opinion or otherwise if:

(a) the expert’s scientific, technical, or other specialized 

knowledge is beyond that possessed by the average layperson;

(b) the expert’s scientific, technical, or other specialized 

knowledge will help the trier of fact to understand the evidence or 

to determine a fact in issue; and

____________________________________________

3 At oral argument, White’s counsel conceded that the standard for an expert’s 

testimony is a reasonable degree of medical certainly, but was raising the 

issue to preserve it for further review by our Supreme Court. White also 

complains in her sufficiency argument that Dr. Atkinson’s opinion was “not 

beyond a reasonable doubt.” (See White’s Brief, at 40). “Beyond a 

reasonable doubt” is the factfinder’s standard in determining whether the 

Commonwealth met its burden.
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(c) the expert’s methodology is generally accepted in the 

relevant field.

Pa.R.E. 702; see id. at Comment (“Pa.R.E. 702 does not change the 

requirement that an expert’s opinion must be expressed with reasonable 

certainty.”).

It is well-settled that in Pennsylvania, “our Supreme Court has 

emphasized [that an] expert must base the substance of her opinion on a 

reasonable degree of certainty instead of mere speculation.” 

Commonwealth v. Gonzalez, 109 A.3d 711, 727 (Pa. Super. 2015), appeal 

denied, 125 A.3d 1198 (Pa. 2015) (citation omitted); see also 

Commonwealth v. Spotz, 756 A.2d 1139, 1150 (Pa. 2000), cert. denied, 

532 U.S. 932 (2001) (“forensic pathologist’s testimony in first-degree murder 

trial as to victim’s manner of death was properly based on reasonable degree 

of medical certainty[.]”).

Here, the trial court explains that it denied White’s motion in limine

because it:

found that the Commonwealth’s expert witness’s background was 

both relevant and applicable to the instance at hand. It was 

neither irrelevant nor highly prejudicial. The expert witness’s 

background and work history provided a substantial basis for the 

testimony that he produced at trial. This background allowed the 

expert witness to produce testimony that was based in personal 

knowledge of infant injuries to show what can cause these types 

of injuries and it provided insight in showing that the scenario 

presented by the defense could not have produced the injuries

that were presented in the ER. ...
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(Trial Ct. Op., at 15). We discern no abuse of discretion in the trial court’s 

decision denying White’s motion in limine.

It was within the court’s discretion whether to allow Dr. Atkinson to state 

that she reached her conclusions within a reasonable degree of professional 

certainty or if this would be too prejudicial to White in this non-jury trial. See 

Reese, supra at 715. Dr. Atkinson has the knowledge beyond that possessed 

by a layperson that would help the court to understand the evidence or 

determine a fact at issue and her methodology was generally accepted by 

professionals in her field. See Pa.R.E. 702. Using the language, “beyond a 

professional certainty,” while not a “methodology,” has been long-accepted 

and indeed required language in a legal proceeding in Pennsylvania, and White 

failed to provide any binding precedent dictating that the court reach a 

decision precluding this language because it is too prejudicial as a matter of 

law. White’s first issue lacks merit.

B.

In her second issue, White claims that the evidence was insufficient to 

convict her of any charges because it does not establish criminal intent since

it was equally as consistent with innocence as it was of guilt.4 (See White’s 

____________________________________________

4 Our standard of review of this issue is well-settled:

As a general matter, our standard of review of sufficiency 

claims requires that we evaluate the record in the light most 

(Footnote Continued Next Page)
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Brief, at 37-41). Relying on In re J.B., 189 A.3d 390 (Pa. 2018), her 

argument is that because “the evidence supporting the inference of [her] guilt 

is in equipoise with the evidence supporting the conclusion that [she] did not 

commit the offense, the Commonwealth fails to meet its requisite burden of 

establishing guilt beyond a reasonable doubt.” (Id. at 41). She maintains 

that the trial court’s conclusion that Child’s injuries were caused by child abuse 

was “the product of surmise or conjecture” where Mr. Thibault offered 

unrebutted biomechanical engineer testimony to the contrary and, therefore,

the Commonwealth did not prove guilt beyond a reasonable doubt. (Id.); 

(see id. at 39).

____________________________________________

favorable to the verdict winner giving the prosecution the benefit 

of all reasonable inferences to be drawn from the evidence.

The Commonwealth may sustain its burden by means of 

wholly circumstantial evidence. Accordingly, [t]he fact that the 

evidence establishing a defendant’s participation in a crime is 

circumstantial does not preclude a conviction where the evidence 

coupled with the reasonable inferences drawn therefrom 

overcomes the presumption of innocence. Significantly, we may 

not substitute our judgment for that of the fact finder; thus, so 

long as the evidence adduced, accepted in the light most favorable 

to the Commonwealth, demonstrates the respective elements of 

a defendant’s crimes beyond a reasonable doubt, the appellant’s 

convictions will be upheld.

Commonwealth v. Sebolka, 205 A.3d 329, 336-37 (Pa. Super. 2019) 

(citation omitted). “Importantly, the [fact-finder], which passes upon the 

weight and credibility of each witness’s testimony, is free to believe all, part, 

or none of the evidence.” (See id. at 337) (citation omitted).
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In J.B., our Supreme Court held that despite the deferential standard of 

review we set forth above in footnote 4, there is an exception where “the 

entire body of evidence introduced at trial which furnished the basis for an 

appellant’s conviction is so deficient that it does not reasonably support a 

finding of guilt beyond a reasonable doubt, as a matter of law.” J.B., 189 

A.3d at 409 (citation omitted). In other words, there may be cases where 

“the trial evidence equally supported two reasonable but diametrically 

opposed ultimate inferences: one that the defendant committed the murder, 

and the second that he did not commit the murder.” Id. “[I]n those atypical 

situations, our Court has consistently held that we are not bound by the factual 

findings and credibility determinations rendered by the finder of fact, and we 

are compelled in such circumstances to reverse a legally erroneous 

conviction.” Id. (citation omitted).

In making her argument, White contends that the evidence is in 

equipoise because the two experts reviewed the same evidence and came to 

diametrically opposed conclusions—the Commonwealth’s expert saying that 

the Child’s injuries were a result of an intentional act committed by her while 

her expert witness testified that Child’s injuries were the result of a fall. What 

that argument ignores is that the trial court accepted Dr. Atkinson’s testimony 

as the Commonwealth’s expert, but rejected the testimony of White’s expert, 

Mr. Thibault, because he could not credibly testify to the cause of the injuries 
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where he was not a medical doctor and did not work with children. (See

White’s Brief, at 38-41).

The trial court found Dr. Atkinson’s testimony to be “credible, 

authoritative and [it] accepted the same as true,” while finding the testimony 

of White’s expert, Mr. Thibault, lacked credibility and weight because he based 

his opinion on prior studies that he read and the use of car injury crash test 

dummies. (Trial Ct. Op., at 2); (see id. at 4). While White argues that this 

was error and asks that we re-weigh the evidence because Mr. Thibault 

provided “unrebutted biomechanical engineer testimony,” we decline to do so.

Dr. Atkinson is a licensed child abuse pediatrician with years of 

experience and training, who has testified in multiple cases, treated Child and 

penned a paper on the effect of falls on pediatric patients. Mr. Thibault is a 

biomechanical engineer who had no training or experience on the issue 

presented here: whether an alleged fall from three to five stairs, scratching 

of eczema and falling on an ottoman could cause the types of severe injuries 

presented by the underweight, underdeveloped non-thriving child. It was 

within the trial court’s province as factfinder to believe all, some or none of 

the evidence and determine the credibility of witnesses and the weight to be 

afforded their testimony. See Sebolka, supra at 336-37.

Additionally, “[a]n argument that the finder of fact should have credited 

one witness’ testimony over that of another witness goes to the weight of the 

evidence, not the sufficiency of the evidence.” See Commonwealth v. 
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Gibbs, 981 A.2d 274, 281-82 (Pa. Super. 2009), appeal denied, 3 A.3d 670 

(Pa. 2010) (citations omitted).

Accordingly, her claim that the evidence was insufficient to establish 

that she abused Child resulting in Child’s injuries because it just as likely 

proved her innocence lacks merit.

1.

As to her argument that the evidence was insufficient because intent 

was not proven, “[i]ntent can be proven by direct or circumstantial evidence; 

it may be inferred from acts or conduct or from attendant circumstances.” 

Commonwealth v. Lewis, 911 A.2d 558, 564 (Pa. Super. 2006). It is longsettled that where there are “no eyewitnesses to the alleged beating ... the 

Commonwealth need not prove its case directly. Circumstantial evidence can 

be as reliable and persuasive as eyewitness testimony.” Commonwealth v. 

Blevins, 309 A.2d 421, 486 (Pa. 1973) (citation omitted). Importantly:

[W]here an adult is given sole legal custody of a child of tender 

years for a period of time, and, during that time the child sustains 

injuries which may have been caused by a criminal agency, the 

finder of fact may examine any explanation offered and ... reject 

it and find the person having custody of the child responsible for 

the wounds.

Commonwealth v. Meredith, 416 A.2d 481, 482-83 (Pa. 1980) (citations 

omitted). A defendant’s fabrication of the cause of a child’s injuries is 

compelling evidence that she caused them. See Commonwealth v. 

Hoffman, 198 A.3d 1112, 1120 (Pa. Super. 2018) (where mother rolled off 

couch and onto child while under the influence of substances and then gave 
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conflicting stories about surrounding facts, “[t]he jury was free to conclude 

that [her] statements to police displayed consciousness of guilt.”).

In this case, the trial court found that the evidence was sufficient 

because it established that Child was put in a dangerous situation in which she 

sustained serious injuries that “could not have resulted without the absence 

of knowing intentional and reckless behavior on the part of [White].” (Trial 

Ct. Op., at 9); (see id. at 9-13). The record supports the court’s conclusion.

Although there was no eyewitness testimony about the cause of Child’s 

injuries other than that of White, White was her primary caretaker and the 

injuries occurred while in White’s care. Dr. Atkinson dismissed her 

explanations for the injuries as implausible. The doctor specializes in child 

abuse pediatrics, has evaluated hundreds of cases involving child injuries, 

authored an article on pediatric injuries from falling and is also a professor 

teaching same. (See id. at 13-14). She has been board certified in pediatrics

since 2011 and child abuse pediatrics since 2015. (See id.).

She explained that Child presented at Einstein Medical Center with 

fractures to her left forearm, right femur, left tibia and right tibia, bruising to 

her eye, various dark markings on her extremities and a torn frenulum. (See 

id. at 22-23). She had delayed motor functions, being unable to walk without 

support at sixteen months of age, and her weight was below the third 

percentile, classifying her as failure to thrive. (See id. at 26-27). She 
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testified that based on her review, there was nothing in Child’s medical history 

that would have predisposed her to any of the injuries. (See id. at 31).

Dr. Atkinson credibly opined that the scarring under Child’s chin/on the 

neck were consistent with a pattern of injuries caused by fingernails and that 

extent of the skin injury would not have been caused by Child as alleged by 

White. (See id. at 31-32). She testified that Child’s multiple fractures were 

“way more injury than should be expected in the setting of a short fall” 

because the different forces necessary to cause the different types of breaks 

on various parts of Child’s body could not be generated by a fall down five 

steps. (See id. at 39, 44-45). While she could not identify the precise age 

of the fractures, she testified that they were, at most, “a few days old.” (See 

id. at 42). She rejected White’s claim that Child injured her eye by falling on 

an ottoman. (See id. at 43).

The circumstantial evidence and expert testimony of Dr. Atkinson 

presented by the Commonwealth were sufficient to establish that White had 

the reckless and knowing intent to, and did, cause serious bodily injury to 

Child. (See id. at 481) (affirming father’s murder conviction where he was in 

exclusive custody of child, whom he claimed sustained his injuries in fall from 

tricycle, but experts concluded that “the injuries causing death were 

inconsistent with a fall, particularly a fall as described by appellant.”); see 

also Blevins, supra at 421 (affirming mother’s murder conviction where she 

claimed child’s death was caused by his fall down steps, but his autopsy 
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revealed 39 bruises on his upper body, a hemorrhaged liver and damaged 

kidneys and doctor testified it was “very unlikely” that these injuries were 

caused by a fall down steps).

Accordingly, the evidence is sufficient to establish the requisite intent to 

cause the injuries.5

C.

White next maintains that the evidence was insufficient to support her 

conviction of first-degree EWOC. (See White’s Brief, at 42). She argues that 

because this statute requires that an offender engage in a course of conduct, 

and “there was no evidence that Child was the victim of a course of conduct 

that repeatedly placed her at a risk of serious bodily injury, Count 2 was 

improperly graded as a felony of the first degree at sentencing.” (See id. at 

43).

First-degree felony EWOC requires that the person who endangers the 

welfare of a child, “created a substantial risk of death or serious bodily and 

was part of a course of conduct.” 18 Pa.C.S. § 4304(a)(1), (b)(iv), (b)(2). 

For first-degree EWOC, “[t]he Commonwealth must allege in the information 

____________________________________________

5 Neither do we find the cases noted but not discussed by White to be 

persuasive. (See White’s Brief, at 41, n.88-n.90). None of the cases involved 

competing expert opinions in situations involving potential child abuse or the 

legal principle that, because Child suffered injuries that may have been caused 

by a criminal act, during a time when White had sole legal custody of her, the 

trial court could examine and reject any explanation offered. See Meredith, 

supra at 482-83.
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and present evidence at trial of ... ‘course of conduct’ ... [that] is not an 

element of the offense of endangering the welfare of a child, but it is an 

additional fact, [for the fact-finder], that impacts the grading of the offense.

Commonwealth v. Popow, 844 A.2d 13, 18 (Pa. Super. 2004). The elevated 

grading is designed to punish a parent who over days, weeks, or months, 

abuses his children[.]” (See id. at 17).

In this case, the Commonwealth argued and presented evidence to 

support a finding that there was a course of conduct of child abuse. In addition 

to the fractures, Child had a bruised and scarred right eye, a torn frenulum 

and scarring on her neck that Dr. Atkinson said were healing at the time she 

presented at the hospital with the fractures. (See N.T. Trial, at 42). She was 

severely underdeveloped and failing to thrive, being in the third percentile for 

weight and at least four months behind in walking. (See id. at 26-27).

The evidence established that White was the primary caretaker of Child 

since father worked outside the home as a truck driver. (See id. at 34-35). 

White admitted that Child did not go to daycare and was always at home with 

her. (See id. at 119). She offered implausible excuses for Child’s eye injury, 

claiming it was caused by a fall on an ottoman, and for the scarring on her 

neck as being caused by Child scratching. (See id. at 30). Dr. Atkinson 

testified that these claims were impossible, as the ottoman could not have 

caused the eye injury, which only could have been caused by a “protruding 

object,” and the scratches were “very distinct markings to her neck” that were 
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“not consistent with something that a child would do to themselves.” (See 

id. at 32, 43). The trial court agreed, stating, “if you are trying to tell me that 

in the middle of the night, this young girl, 15 months old, is scratching herself 

furiously to the point where she was bleeding and you have to change the 

sheet and you never hear a word ... I can’t believe that.” (See id. at 190-91).

In fact, Ms. Vraakm testified that once Child was no longer in White’s 

care, she visibly improved after three weeks with her foster parents. “She 

was much more interactive. She was feeding herself. She was sitting in a 

highchair. She was interacting with the foster parent. She was making ... 

sounds at me.” (See id. at 91). Child also appeared bigger physically and 

her skin was clear, findings that Dr. Atkinson confirmed, stating that when she 

followed up with her after she had been in foster care, “the bruise was gone. 

Her mouth was healed, and she looked as though there were no new injuries 

on exam.” (See Id. at 47).

Based on the foregoing, the evidence established that Child’s injuries 

occurred over “days, weeks, or months” while she was in White’s primary care. 

Popow, supra at 17. Hence, the evidence was sufficient to establish that 

there was a course of conduct supporting EWOC as a first-degree felony. See 

Sebolka, supra at 336-337. White’s third issue lacks merit.
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D.

In her fourth issue, White argues that the court imposed an illegal 

sentence by imposing two separate sentences on the two EWOC counts.6 (See

White’s Brief, at 43-45). She maintains that entering a sentence of “no further 

penalty” on the second-degree felony EWOC conviction was illegal where there 

was only one child and no separate incident of child abuse alleged. (See id.). 

The Commonwealth agrees but contends that remand is unnecessary since it 

did not affect the sentencing scheme. (See Commonwealth’s Brief, at 28-29).

It is well-settled that crimes merge for sentencing purposes where they

“arise from a single criminal act and all of the statutory elements of one 

offense are included in the statutory elements of the other offense. Where 

crimes merge for sentencing purposes, the court may sentence the defendant 

only on the higher graded offense.” Hoffman, supra at 1121 (citing 42

Pa.C.S. § 9765).

The two counts of EWOC were based on the same criminal act and 

involved the same statutory elements, as the “course of conduct” language is 

for grading purposes only. Hence, we vacate the sentence for second-degree 

felony EWOC. However, as noted by the Commonwealth, this does not affect 

____________________________________________

6 “The determination as to whether a trial court imposed an illegal sentence is 

a question of law; an appellate court’s standard of review in cases dealing with 

questions of law is plenary.” Commonwealth v. White, 268 A.3d 499, 500 

(Pa. Super. 2022) (citation omitted).
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the sentencing scheme and, therefore, we decline to remand for resentencing. See Commonwealth v. Thur, 906 A.2d 552, 569 (Pa. Super. 

2006), appeal denied, 946 A.2d 687 (Pa. 2008) (noting, “if our decision does 

not alter the overall scheme, there is no need for remand.”).

E.

In her fifth and final issue, White argues that pursuant to Rule 706(C)

of the Pennsylvania Rules of Criminal Procedure,7 she was entitled to a 

____________________________________________

7 Rule 706 provides:

(A) A court shall not commit the defendant to prison for failure to 

pay a fine or costs unless it appears after hearing that the 

defendant is financially able to pay the fine or costs.

(B) When the court determines, after hearing, that the defendant 

is without the financial means to pay the fine or costs immediately 

or in a single remittance, the court may provide for payment of 

the fines or costs in such installments and over such period of time 

as it deems to be just and practicable, taking into account the 

financial resources of the defendant and the nature of the burden 

its payments will impose, as set forth in paragraph (D) below.

(C) The court, in determining the amount and method of payment 

of a fine or costs shall, insofar as is just and practicable, consider 

the burden upon the defendant by reason of the defendant’s 

financial means, including the defendant’s ability to make 

restitution or reparations.

(D) In cases in which the court has ordered payment of a fine or 

costs in installments, the defendant may request a rehearing on 

the payment schedule when the defendant is in default of a 

payment or when the defendant advises the court that such 

default is imminent. At such hearing, the burden shall be on the 

defendant to prove that his or her financial condition has 

deteriorated to the extent that the defendant is without the means 

(Footnote Continued Next Page)
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determination at sentencing of whether court costs and/or fines should be 

reduced due to her financial means and inability to pay.8 (See White’s Brief, 

at 45-47). The Commonwealth agrees with White.

Recently, while this case was pending on appeal, the Pennsylvania 

Supreme Court considered this precise issue. See Commonwealth v. 

Lopez, ___ A.3d ___, 2022 WL 3363051, at *1, *3 (Pa. filed Aug. 16, 2022). 

The Court conducted an exhaustive review and concluded, “it is apparent from 

multiple decisions by this Court and the Superior Court, as well as the plain 

language of the rule, its comment, and statutes in pari materia, that Rule

706(C) does not require consideration of the defendant’s ability to pay prior 

to the imposition of mandatory court costs at sentencing.” (See id. at *9).

It explained, in pertinent part:

Importantly, Rule 706(C) does not exist in isolation. It is 

the third section of a four-section rule. The rule’s three other 

sections clearly refer to post-sentencing proceedings after the 

court has already ordered costs at sentencing. Specifically, 

Section (A) requires the court to conduct an ability-to-pay hearing 

____________________________________________

to meet the payment schedule. Thereupon the court may extend 

or accelerate the payment schedule or leave it unaltered, as the 

court finds to be just and practicable under the circumstances of 

record. When there has been default and the court finds the 

defendant is not indigent, the court may impose imprisonment as 

provided by law for nonpayment.

Pa.R.Crim.P. 706.

8 “The interpretation of the Rules of Criminal Procedure presents a question of 

law and therefore ... our standard of review is de novo and our scope of review 

is plenary.” Commonwealth v. Dowling, 959 A.2d 910, 913 (Pa. 2008)

(citation omitted).
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prior to imprisoning a defendant for failing to pay costs already 

imposed, Section (B) permits the court to order previously 

imposed costs to be paid in installments, and Section (D) allows 

for a rehearing if a defendant is in imminent or actual default on 

such installment payments. ... Further, the language of Section (A) 

gives no indication this provision involves anything other than an 

initial inquiry into the defendant’s ability to pay. Section (A) does 

not refer in any way to a previous determination of ability to pay 

under Section (C). In this regard, Section (A) stands in clear 

contrast to Section (D), which explicitly refers to a “rehearing” on 

the defendant’s ability to pay. Viewed, as it must be, in the 

context of the other sections of Rule 706, it is apparent Rule

706(C), like the rest of the rule, pertains to post-sentencing 

proceedings and appears in chronological order. That is, Rule

706(C) concerns the court’s post-sentence determination

of the amount and method of payment after the defendant has 

defaulted and the court has found, following a hearing, that the 

defendant is without the financial means to pay.

(See id.); (emphases provided).

The Court noted that the comment to the Rule supports this 

interpretation because it reflects that the purpose of Rule 706 was to enact

the holding of Commonwealth v. Benedict, 304 A.2d 158 (Pa. 1973), 

“namely, to require an ability-to-pay hearing prior to imprisonment for failure 

to pay a fine or costs and permit installment payments upon a showing of 

demonstrated need.” Lopez, supra at *6. Further, the Court observed that 

“interpreting Rule 706(C) to require a presentence ability-to-pay inquiry would 

place the rule directly at odds with [42 Pa.C.S. §§] 9721(c.1) and 9728(b.2),”

which “do not require the court to consider the defendant’s ability to pay prior 

to the imposition of costs. Indeed, the statutes do not require any court 

involvement whatsoever before costs are imposed.” (See id. at *7). It also 

considered precedent, including this Court’s holdings in Commonwealth v. 
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Childs, 63 A.3d 323, 326 (Pa. Super. 2013), appeal denied, 70 A.3d 808 (Pa. 

2013), and Commonwealth v. Hernandez, 917 A.2d 332 (Pa. Super. 2007). 

(See id. at *9).

After its exhaustive review, the Supreme Court expressly held that “Rule

706(C) does not require a trial court to consider a defendant’s ability to pay 

prior to imposing mandatory court costs at sentencing.” Lopez, supra at *9, 

*15. Therefore, the trial court did not err in not holding an ability-to-pay 

hearing before sentencing White. White’s final issue lacks merit.

Judgment of sentence vacated in part. Affirmed in all other respects. 

Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/8/2022