J. S10027/17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

DWAYNE GOODEN, :

:

Appellant : No. 435 EDA 2016

Appeal from the Judgment of Sentence January 7, 2016

In the Court of Common Pleas of Philadelphia County 

Criminal Division at No(s): CP-51-CR-0005197-2014

 

BEFORE: BENDER, P.J.E., DUBOW, J., and SOLANO, J.

MEMORANDUM BY DUBOW, J.: FILED FEBRUARY 17, 2017

Appellant, Dwayne Gooden, appeals from the January 7, 2016 

Judgment of Sentence entered in the Philadelphia County Court of Common 

Pleas. After careful review, we affirm on the basis of the trial court’s 

Opinion, which found that there was sufficient evidence to support the jury’s

convictions for Endangering the Welfare of a Child and Unlawful Restraint.

The trial court’s Pa.R.A.P. 1925(a) Opinion includes a thorough and 

complete narrative of the facts and procedural history of this case, which we 

adopt for purposes of this appeal. See Trial Court Opinion, filed 7/20/16, at 

2-7. While we will not go into exhaustive detail here, some of the relevant 

facts are as follows.

In 2013 and 2014, Appellant lived with his then girlfriend Zoraya Velez 

(“Victim Mother”) and her three young sons (“Victim Children”). Appellant 
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drove the Victim Children to school, cooked meals for the Victim Children, 

helped them with schoolwork, and generally contributed to the care of the 

three Victim Children. 

From the evening of March 29, 2014 to the early morning hours of 

March 30, 2014, Appellant subjected his victims to a campaign of escalating 

threats and physical abuse. Appellant demanded money from Victim 

Mother, spat in her face, smacked her, and threatened to kill her. He told 

Victim Mother that she could not leave the apartment or phone for help, and 

he took her phone and keys from her. Around 5:00 am, after Appellant fell 

asleep, Victim Mother retrieved her phone, called the front desk of her 

building, and asked for help.

At approximately 5:30 am, police responded to the apartment and 

knocked on the door. The knocking woke Appellant, who began barricading 

the door with a bedframe and other large objects. Appellant then went after 

Victim Mother, holding a pillow over her face. He pinned her to the bed, 

cutting off her ability to breathe. Although she briefly wrestled free, 

Appellant tackled her to the floor, covering her mouth with his hands and 

later forcing a dirty washcloth into her mouth to prevent her from calling out 

for help.

Victim Mother tried to scream, and called for her sons to open the 

front door to get help. Appellant called the Victim Children “motherfuckers,” 

told them he would kill them if they went near the front door, and then 
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continued assaulting their mother, dragging her across the apartment floor 

in view of the boys.

The oldest of the Victim Children, Z.Z., who was 11 or 12 years old on 

the night of the attack, testified at trial that he felt traumatized by the 

incident. 

It took the collective efforts of seven or eight officers, kicking the door 

and utilizing a crowbar, to finally gain entry into the apartment. On the 

other side of Appellant’s makeshift barricade, Victim Mother lay bleeding in 

the corner of the apartment, suffering injuries to her chest, hands, neck, 

knee, head and face. A laceration in her bottom lip required stitches. 

Appellant, who was fugitive on unrelated charges, refused to comply 

with the officers who entered the apartment. He was taken into custody at 

gunpoint, and charged with Attempted Murder, Aggravated Assault, Unlawful 

Restrain, Endangering the Welfare of a Child, and related charges. 

Appellant proceeded to a jury trial. On October 23, 2015, the jury 

found Appellant guilty of Unlawful Restraint, Simple Assault, and 

Endangering the Welfare of a Child.1 On January 7, 2016, the trial court 

sentenced Appellant to five to ten years of incarceration.

On February 1, 2016, Appellant timely-filed the instant appeal. Both 

Appellant and the trial court complied with Pa.R.A.P. 1925. 

On appeal, Appellant raises two issues:

 

1 18 Pa.C.S. §§ 2902(a)(1), 2701(a), and 4304(a)(1), respectively. 
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1. Was not the evidence insufficient to establish endangering the 

welfare of children [] where Appellant did not meet the definition 

of a “person supervising the welfare of a child,” and there was 

insufficient evidence that the welfare of a child was, in any 

event, endangered?

2. Was not [A]ppellant erroneously convicted of unlawful 

restraint [] as there was insufficient evidence either that he 

exposed the complainant, Zoraya Velez, to actual risk of serious 

bodily injury or that she was deprived of her freedom to leave 

her apartment.

Appellant’s Brief at 3.

In reviewing the sufficiency of the evidence, our standard of review is 

as follows:

The standard of review for a challenge to the sufficiency of 

the evidence is to determine whether, when viewed in a 

light most favorable to the verdict winner, the evidence at 

trial and all reasonable inferences therefrom is sufficient 

for the trier of fact to find that each element of the crimes 

charged is established beyond a reasonable doubt. The 

Commonwealth may sustain its burden of proving every 

element beyond a reasonable doubt by means of wholly 

circumstantial evidence. 

The facts and circumstances established by the 

Commonwealth need not preclude every possibility of 

innocence. Any doubt raised as to the accused's guilt is to 

be resolved by the fact-finder. As an appellate court, we 

do not assess credibility nor do we assign weight to any of 

the testimony of record. Therefore, we will not disturb the 

verdict 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. 

Commonwealth v. Vogelsong, 90 A.3d 717, 719 (Pa. Super. 2014) 

(citations and quotations omitted).
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In his first issue, challenging his conviction for Endangering the 

Welfare of a Child, Appellant presents two distinct arguments. First, 

Appellant avers that he did not meet the required definition of a “person 

supervising the welfare of a child” because the evidence at trial showed 

Appellant “was merely present in [the children’s] apartment in the role as 

the mother’s boyfriend” and that Appellant and the Victim Children had 

“virtually no relationship at all.” Appellant’s Brief at 15. 

The Honorable Diana L. Anhalt has authored a comprehensive, 

thorough, and well-reasoned Opinion, citing to the record and relevant case 

law in addressing Appellant’s claims. After a careful review of the parties’ 

arguments, and the record, we affirm on the basis of that Opinion, which 

held that Appellant met the definition of a “person supervising the welfare of 

a child” because he voluntarily resided with the Victim Children for nearly a 

year and took on an active role helping with the Victim Children including 

driving them to school, preparing meals for them, and assisting with 

schoolwork. Trial Court Opinion, filed 6/2/16, at 7-9.

Second, Appellant avers that, because the Victim Children were 

“merely bystanders” to his assault on their mother, his actions did not 

endanger their welfare. Appellant’s Brief at 16. Judge Anhalt’s Opinion 

includes a comprehensive, thorough, and well-reasoned discussion of this 

claim, with citations to the record and relevant case law. After a careful 

review of the parties’ arguments, and the record, we affirm on the basis of 
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that Opinion, which found that Appellant placed the Victim Children “in a 

situation that threatened their physical or psychological welfare” and 

ultimately traumatized the Victim Children when he barricaded them in the 

apartment, assaulted their mother in their presence, and referred to the 

children as “motherfuckers” and threatened to kill them when they 

attempted to help their mother. Trial Court Opinion, filed 6/2/16, at 9-11.

In his second issue, Appellant challenges his conviction for Unlawful 

Restraint on the grounds that “the Commonwealth failed to prove that 

[A]ppellant exposed [Victim Mother] to a risk of serious bodily injury or that 

[Victim Mother] was deprived of her freedom to leave her apartment[.]” 

Appellant’s Brief at 17.

Judge Anhalt’s Opinion includes a comprehensive, thorough, and wellreasoned discussion of this claim, with citations to the record and relevant 

case law. After a careful review of the parties’ arguments, and the record, 

we affirm on the basis of that Opinion, which found that Appellant (i) 

detained Victim Mother against her will by physically restraining her, 

threatening her and her children, and barricading the door; and (ii) exposed 

Victim Mother to the risk of serious bodily injury when he “spat in her face, 

smacked her, and tried to silence her screams by holding a pillow over her 

face, holding his hands over her mouth and nose, shoving a washcloth in her 

mouth, and choking her.” Trial Court Opinion, filed 7/20/16, at 11-12.
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The parties are directed to attach a copy of the trial court’s June 2, 

2016 Opinion to all future filings. 

Judgment of Sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/17/2017
II II !Im 11111111 11111111 

7476302241 

a. The evidence was insufficient to support a conviction for endangering the welfare of 

a child where the Commonwealth failed to present evidence that Appellant was a 

parent, guardian, or person supervising the welfare of any of the complainant's 

children, and therefore he did not violate any duty of care, protection, or support. 

b. The evidence was insufficient to support a conviction for endangering the welfare of 

a child where the evidence failed to establish that the welfare of any child was 

endangered during the alleged incident between Appellant and the complainant, 

Zoraya Velez. CP-51-CR-0005197-2014 Comrn. V. Gooden, Dwayne 

Opinion 

Complained of on Appeal. Appellant raises the following arguments on appeal: 

the Notes of Testimony. On June 2, 2016, Appellant filed a Supplemental Statement of Errors 

of Time to File a Supplemental Statement of Errors Complained of on Appeal upon Receipt of 

Appellant filed both a Statement of Errors Complained of on Appeal and a Petition for Extension 

Appellant filed a timely notice of appeal on February 1, 2016. On March 15, 2016, 

any sentence currently being served. 

2016, this Court sentenced Appellant to five to ten years of incarceration to run consecutively to 

270l(a), and Endangering the Welfare of a Child under 18 Pa.C.S.A. § 4304(a)(l). On January 7, 

Unlawful Restraint under 18 Pa.C.S.A. § 2902(a)(l), Simple Assault under 18 Pa.CS.A.§ 

On October 23, 2015, a jury found Dwayne Gooden (hereinafter "Appellant") guilty of 

OVERVIEW AND PROCEDURAL HISTORY 

ANHALT,J. July 20, 2016 

OPINION 

DWAYNE GOODEN 

v. CP-51-CR-0005197-2014 

Appeals/Post Trial 

Office of Judicial Records 

COMMONWEALTH OF PENNSYLVANIA 

FILED 

JUL 2 O 2016 

IN THE COURT OF COMMON PLEAS 

FIRST JUDICIAL DISTRICT OF PENNSYLVANIA 

TRIAL DIVISION - CRIMINAL SECTION 

. --~· .··:<·=·~---- ·. ·=. 

Circulated 01/30/2017 10:13 AM
2 

N.T. 10/23/15 at 16, 27. 

standing in the center of the apartment, and three children in a bedroom. Id. at 56, 70, 71, 208; 

10/22/15 at 5 5. They saw a woman laying on the floor in a comer of the apartment, a man 

multiple bins, boxes, and a metal bedframe had been placed in front of the entry door. N.T. 

67-68; N.T. 10/23/15 at 25-26. When the officers entered the apartment, they observed that 

kicking the door while one officer used a crowbar to pry the door open. N.T. 10/22/15 at 54, 55, 

51, 209; N. T. 10/23/15 at 14. In order to gain entry, it took the efforts of seven or eight officers 

sounding voice say something through the door along the lines of, "[i]t's fine, he's gone." Id. at 

Id. at 205. While trying to open the door, multiple officers testified to hearing a femininescreams to the point where [she was] scared of what was going on on the other side of that door." 

Several additional officers responded, including Officer Vandell Cook, who heard "gut 

backup. Id. at 51-52. 

and movement inside, the officers decided to forcibly open the locked door and called for 

movement and "what sounded like a yelp, like a scream ... " Id. at 51. After hearing more yelps 

awake and moving around inside. Id. at 50-51. The officers knocked harder, hearing more 

harder, Officer Farnan heard a "rumbling" inside the apartment and could hear that someone was 

partner arrived at the residence, they knocked and received no response. Id. at 50. After knocking 

Apartment 703. Notes of Testimony (N.T.) 10/22/15 at 48-49. When Officer Farnan and his 

Matthew Farnan received a radio call to respond to a domestic incident at 2411 North l l " Street, 

On March 30, 2014, around 5:30 a.rn., Philadelphia Housing Authority Police Officer 

FACTS 

c. The evidence was insufficient to support a conviction for unlawful restraint of Zoraya 

Velez where the Commonwealth failed to establish that she was deprived of her 

freedom to leave the apartment or that she was placed in danger of suffering serious 

bodily injury. 

j ! 
3 

Officer Farnan testified that the woman, complainant Zora ya Velez, was hysterically 

crying and had ripped clothing, a bloody lip, lacerations on her face and hands, and bruises on 

her arms and neck. N.T. 10/22/15 at 56, 57? 72. Officer Cook similarly testified that she was 

"cowering and balled up in the comer," bloody and shaking uncontrollably, and seemingly in 

shock. Id. at 208-09. Officer Cook also testified that the complainant's bra and breast were 

exposed as a result of her ripped tank-top, so the officer covered her with a towel or sheet. Id at 

222. Officer Cook then held the complainant in her lap while she cried and told the officer that 

she thought she was going to die. Id. at 208-09. 

Meanwhile, officers ordered Appellant to get on the ground, but he refused. N.T. 

10/23/15 at 27. So, Officer Dennis Stevens held Appellant at gunpoint in order to restrain him, at 

which point the officers took him into custody. Id They brought Appellant in for booking, while 

Officers Cook and Lankford took the complainant to Temple University Hospital. N .T. 10/22/15 

at 58, 223; N.T. 10/23/15 at 65-66. 

The complainant and her son, Zackarie, each testified as to what they witnessed inside the 

apartment while the police were trying to gain entry. N.T. 10/22/15 at 73, 109. At the time of this 

incident, Zackarie was 11 or 12 years old and had been living at his mother's apartment with his 

mother, his two younger brothers, and his mother's ex-boyfriend, Appellant. Id. at 75, 77. 

Zackarie testified that Appellant had been living with them for anywhere between six and nine 

months prior to March 30, 2014. Id. at 88. Zackarie also testified that he liked Appellant and 

considered him a friend, and that Appellant sometimes drove Zackarie to school, cooked 

Zackarie dinner, and generally helped the complainant and the children around the house. Id. at 

89-90. 

. ·.·.·-:-~:. ·•· ·. -l - . I I 
4 

Zackarie testified that on the morning of March 30, 2014, he was awoken by the police 

knocking on the door. Id. at 77- 78. At that point, he witnessed Appellant run out of the master 

bedroom and yell to the police in a high-pitched voice, "[h]e's running down the steps." Id. 

Zackarie explained that, although placing bins in front of the door was something the family did 

every night, Appellant added additional objects that morning, including a metal bar from the 

door and a box spring, so that the police could not open the door. id. at 82-83. While the officers 

were banging on the door, Zackaries younger brother tried to remove the objects blocking the 

door, but Appellant said, "[g]et back in your room." Id. at 83. Afterward, Zackarie recalled 

Appellant telling the complainant to "shut up" before dragging her across the apartment. Id. at 

80-81. Then, Appellant said he was going to try to jump out of the window, even though the 

apartment's windows were barred, and told the children to return to their rooms and not to open 

the front door. Id. at 81. When the police entered the apartment, Zackarie recalled seeing his 

mother bloody and in a "hysterical" condition, screaming that Appellant had held her hostage 

and had not let her leave the apartment. id. at 79, 104. Zackarie testified to feeling "traumatized" 

by the incident and "confused" by his mother's bloody 1i p. Id. at 85. 

The complainant testified that Appellant was her boyfriend at the time of the incident, 

and that he stayed with her and her sons on and off between April 2013 and March 3 0, 2014. Id. 

at 110-11, 140. She explained that they were supportive of each other and that Appellant helped 

care for her children, including cooking for them and helping them with their schoolwork. Id. at 

139-40. She testified that she became afraid of Appellant after learning that he was in fugitive 

status. N.T. 10/22/15 at 141. Indeed, in January 2014, Appellant was convicted of possessing a 

firearm in violation of 18 Pa.C.S.A. § 6105(a), Docket Number CP-51-CR-0000648-2012, but 

had failed to appear for sentencing in February 2014. 

:--··-: :-:~~-:-~-"'--: ·. ·. _.: -::--:-~~ 
5 

The complainant stated that on the afternoon of March 29, 2014, her three sons left the 

apartment to stay overnight with their father. Id. at 114. Later that day, Appellant questioned the 

complainant about her finances and expressed a need for money. Id. at 115. He spat in her face, 

smacked her, and told her he was going to kill her. Id at 116-17. Fearing for her safety, she 

called her children's father and asked him to bring the children back that evening. Id. at 115. She 

explained that she could not ask her ex-husband for help or tell him to call the police because 

Appellant was holding the phone while she spoke. Id. at 146. After the children arrived home, 

Appellant demanded child support money that the complainant had received from her exhusband and had left at a neighbor's house. Id. at 147, 118. They left the apartment to get the 

money, and, when they arrived home, Appellant kept the complainant's keys and cell phone. Id. 

at 118. When they went to bed, Appellant watched the complainant the entire night and told her 

that she was not going to go anywhere or call anyone, and that be was going to hold on to her 

phone and keys. Id. at 118, 120. 

She lay awake the entire night as Appellant watched her, and he did not fall asleep until 

about 5:00 a.m. Id. at 120-21. At that point, she grabbed her phone from Appellant and called the 

front desk of her building because she wanted Appellant escorted out of her apartment. Id at 

121. When police knocked on the door, Appellant awoke and said angrily, "[y]ou called the 

cops?" Id. at 122. He then went to the door and placed a bedfrarne where the bins were already 

positioned. Id. at 125. Appellant then returned to the bedroom and grabbed the complainant, 

telling her to be quiet so that the police would leave. Id. at 122. She yelled for help, prompting 

Appellant to push her down on the bed and hold a pillow over her face. Id. She tried to fight back 

and scream for help, but began to lose air. Id. Eventually, she was able to break free and tried to 

run, but Appellant grabbed her and got on top of her, shoving his hand on her mouth and nose in 

.. - ~.-.-.--- - ·. ·.· .. -:, 
6 

The complainant testified that she then went to the Central Detective Division to give a 

statement and be photographed. N.T. 10/22/15 at 132-33. She had other injuries that were not 

visible in the pictures taken by detectives, including bruising that began the next day and bumps 

on her head that were concealed by her hair. Id. at 136. In spite of this, she was unsure whether 

to press charges against Appellant because of their relationship, even though this was not the first 

order to silence her. Id. at 122-23. Then, the complainant bit Appellant and he bit her back. Id. at 

123. Next, he shoved a dirty, wet washcloth into her mouth and put his other hand on her nose 

while holding her down on the floor with his body and elbows. Id. 

She kept trying to scream, and called for her sons to open the front door, but Appellant 

told them something along the lines of, "(g]et out of here, you motherfuckers. Don't open the 

door. Go back to your bedroom or I'll kill all of you." Id at 124-25, 190-91. The children ran to 

their rooms and Appellant took the complainant by the throat with both hands, lifted her up in the 

air, and threw her down on the bed, continuing to choke her with both hands. Id. at 126. She 

became unable to breathe and, believing she was going to die, began to pray to God. Id. at 127. 

Appellant then told her he was going to kill her "because if he was going back to jail, it was 

going to be for something worth it." Id. When the police finally broke through the door, 

Appellant released the complainant and said, "[rn ]y mom will bail me out, you bitch. And I will 

come back and kill you." Id. She recalled being in pain and feeling blood gushing from 

somewhere on her face. Id. at 129. After police officers took Appellant into custody, the 

complainant was escorted by police to Temple University Hospital where she received three 

stitches in her bottom lip. Id. at 129-30; N.T. 10/23/15 at 65-66. She also had abrasions on her 

chest, right hand, left hand, and neck, along with bruising and pain to her right knee and neck. 

N.T. I 0/23/15 at 66. 
7 

child by violating a duty of care, protection or support." 18 Pa.C.S.A. § 4304(a)(l ). 

child under 18 years of age ... commits an offense if he knowingly endangers the welfare of the 

. children. Under the statute, "[a] parent, guardian or other person supervising the welfare of a 

Thus, Appellant argues, he could not have violated any duty of care, protection, or support to the 

that showed Appellant was a parent, guardian, or person supervising the welfare of the children. 

for endangering the welfare of a child, arguing that the Commonwealth did not present evidence 

Appellant's first contention is that the evidence was insufficient to support his conviction 

A. The evidence was sufficient to support a conviction for endangering the welfare of a 

child because Appellant owed a duty of care or protection to the children. 

cert. denied, 549 U.S. 1169 (2007). 

Commonwealth as the verdict winner. Commonwealth v, Mitchell, 902 A.2d 430, 444 (Pa. 2006), 

the sufficiency of the evidence, all reasonable inferences must be drawn in favor of the 

(Pa.Super. 1994) (citing Commonwealth v. Price, 610 A.2d 488 (Pa.Super. 1992)). In reviewing 

evidence received must be considered. Commonwealth v. Woods, 638 A.2d 1013, 1015 

the offense beyond a reasonable doubt. Id The entire trial record must be evaluated and all 

The test is whether the evidence admitted at trial supports the jury's finding of all the elements of 

law and is subject to plenary review. Commonwealth v. Hitcho, 123 A.3d 731, 746 (Pa. 2015). 

Appellant's convictions. A challenge to the sufficiency of the evidence presents a question of 

Each issue raised on appeal concerns the sufficiency of the evidence supporting 

DISCUSSION 

would be properly defended. Id. at 199. 

of going through this" and was no longer afraid to pursue the case because she felt that she 

time he had been violent towards her. Id. at 138, 199. She ultimately decided that she was "sick 

-. --:-:~ .. ·.·--.· - 
8 

1 "Deciding that adults who share a residence with a child not in their legal custody are not responsible for the · 

welfare of that child would undermine both the language and application of the endangering statute. Under such a 

limited reading, stepparents, grandparents, adult siblings, adult roommates, fife partners, and others couldnot be 

prosecuted for endangering the welfare of a child. Our courts should not and have not limited the scope of the statute 

to exclude this broad and diverse category of persons .... By stating that such persons are contemplated within the 

scope of the statute, we do not hold that all adults residing with minor children are automatically criminally liable 

under this law, but rather that, as a matter of law, they are not outside of the scope of the statute. In order to establish 

the second element of the crime, the prosecution must prove that the adult had a duty of care, protection, or support 

of that child which they violated." Brown, 721 A.2d at 1107-08 (Pa.Super, 1998). 

child consisted only of periodic babysitting, diaper changing, and playing with the child. Id. 

721 A.2d at 1108. The Court upheld the conviction where the defendant's relationship with the 

sufficiency of the evidence supporting a conviction for the child endangerment statute. Brown, 

child so as to impose a duty to act.")). 

1 In Brown, the Court reviewed a challenge to the 

in control and supervision of a child, that person has assumed such a status relationship to the 

Commonwealth v. Kellam, 719 A.2d 792, 796 (Pa.Super. 1998) ("[\\T)henever a person is placed 

4304(a)(l). Commonwealth v. Brown, 721 A.2d 1105, 1107-08 (Pa.Super. 1998) (citing 

child and violates a duty of care, protection, or support is within the scope of 18 Pa.C.S.A. § 

The Superior Court previously held that an adult who voluntarily resides with a minor 

v. Mack, 359 A.2d 770, 772 (Pa. 1976)). 

effectuate its broad purpose of sheltering children from harm." Id. at 818 ( citing Commonwealth 

796, 824 (Pa. 2015). Furthermore, the statute is "protective in nature, and must be construed to 

"encompasses all forms of supervision of a child's welfare." Commonwealth v. Lynn, 114 A.3d 

supervision is not limited to certain forms, such as direct or actual supervision, but instead 

that provides care, education, training or control of a child." 18 Pa.C.S.A. § 4304(a)(3). This 

defines "person supervising the welfare of a child" as "a person other than a parent or guardian 

would need to conclude that he was a "person supervising the welfare of a child." The statute 

children. Thus, in order to convict him of endangering the welfare of a child, the finder of fact 

There is no evidence that Appellant was either a parent or legal guardian of any of the 
9 

threat of physical harm." Id. Instead, the accused must be aware that his violation of his duty of 

Wallace, 817 A.2d 485, 491 (Pa.Super. 2002). Nor does it require that a child be in "imminent 

lacks merit. The statute does not require actual physical injury to a child. Commonwealth v. 

was endangered during the incident between himself and the complainant. This argument, too, 

endangering the welfare of a child because the evidence did not establish that any child's welfare 

Appellant next argues that the evidence was insufficient to support a conviction for 

B. The evidence was sufficient to support a conviction for endangering the welfare of a 

child because the welfare of the children was endangered during the incident 

between Appellant and the complainant. 

supervising the welfare of a child." 18 Pa.C.S.A. § 4304(a)(l). 

A.2d at 1108. Thus, the evidence was sufficient for the jury to find that Appellant was a "person 

well beyond that of the babysitting, diaper changing, and playing as described in Brown. 72) 

schoolwork. Id. at 139-40. Appellant's interaction with the complainant's children clearly went 

Appellant helped her with her children, including cooking for them and helping them with their 

periodically between April 2013 and March 30, 2014. Id. at 110-11, 140. She also stated that 

Appellant was her boyfriend at the time of the incident, and that he stayed with her and her sons 

the boys to school and cooking dinner. Id. at 89-90. Likewise, the complainant testified that 

90. Zackarie also testified that Appellant helped his mother around the house, including driving 

months prior to March 30, 2014, and that he considered Appellant a friend. N.T. 10/22/15 at 88- 

Appellant had been living at the apartment with them for somewhere between six and nine 

close, if not closer, to that described in Brown. Zackarie, the complainant's son, testified that 

In the present case, Appellant's relationship with the complainant's children was equally 

supervising the welfare of a child." 18 Pa.C.S.A. § 43 04(a)(l). 

Thus, this level of interaction with the child was sufficient to deem the defendant a "person 
10 

Zackarie testified to feeling "confused" and "traumatized" by the incident, especially after seeing 

bedrooms. Id at 124-25, 190-91. Although none of the children were physically injured, 

he called her children "motherfuckers" and threatened to kill them if they did not return to their 

the children not to open the door. N.T. 10/22/15 at 51, 77-78, 81, 122-23, 125, 209. In addition, 

situation was resolved, silencing the complainant's screams for help by beating her, and telling 

barricading the door with objects, speaking in a feminine voice to convince the police that the 

to the complainant's phone call, Appellant made a deliberate effort to keep the police out by 

apartment. Id at 124-27; N.T. 10/23/15 at 65. Furthermore, when the police arrived in response 

physically and verbally abusing their mother, Appellant created a dangerous environment in the 

their physical or psychological welfare. By staying at the apartment as a fugitive, as well as 

Second, Appellant was aware that he placed the children in a situation that threatened 

school, it is implausible that he did not know of this duty. 

the children. Given that he lived at their apartment, prepared their meals, and drove them to 

endangered the welfare of the children. First, Appellant was aware that he had a duty to protect 

Applying these three elements to the present case, it is clear that Appellant knowingly 

1098, 1099-1100 (Pa.Super. 2004) (citing Wallace, 817 A.2d at 490-91). 

reasonably be expected to protect the child's welfare." Commonwealth v. Retkofsky, 860 A.2d 

(3) has either failed to act or has taken actions "so lame or meager that such actions cannot 

the child is in circumstances that threaten the child's physical or psychological wellbeing; and 

element of the statute: the accused (l) is aware of his duty to protect the child; (2) is aware that 

The Superior Court has established three elements that must be present to prove this 

- 

welfare. Id. at 492. 

care or protection to the child is practically certain to result in the endangerment of the child's 
11 

also told her she could not leave, following her around the apartment and holding her keys and 

complainant against her will, threatened her, and struck her while she resisted his actions. He 

Similar to thefacts described in Moody, Appellant in the present case detained the 

inferred that [the victim] was being restrained .... " Id. 

The Superior Court held that based upon this evidence, the trial court "could have reasonably 

her will, was threatened by [the defendant], struck by him, and ... forcibly resisted his actions." 

affirmed a conviction for unlawful restraint where the victim "was forcibly detained ... against 

In Commonwealth v. Moody, 441 A.2d 371, 374 (Pa.Super. 1982), the Superior Court 

the apartment or that she was placed in danger of suffering serious bodily injury. 

evidence did not sufficiently establish that the complainant was deprived of her freedom to leave 

Commonwealth v. Schilling, 431 A.2d 1088, 1091-92 (Pa.Super. 1981). Appellant argues that the 

§2902(a)(l ). A defendant must "put another in actual danger of serious bodily injury." 

"unlawfully in circumstances exposing [her] to risk of serious bodily injury." 18 Pa.C.S.A. 

The unlawful restraint statute requires that a person knowingly restrain another 

C. The evidence was sufficient to support a conviction for unlawful restraint because 

the complainant was deprived of her freedom to leave the apartment and was 

exposed to the risk of serious bodily injury. 

the apartment, Appellant exacerbated the potential danger of the situation. N.T. 10/22/15 at 127. 

emotional threat to the children and their mother. And by making efforts to keep the police out of 

welfare. Instead, he created a dangerous situation in the apartment and was a physical and 

As to the third element, Appellant did not take any actions to protect the children's 

A.2d at 1099-1100. 

that he was jeopardizing the children's physical and psychological wellbeing. Retkofsky, 860 

his mother bleeding and hysterical. Id. at 85. Accordingly, it is clear that Appellant understood 
12 

2 Although Appellant may argue that he could not have detained the complainant in her own apartment, the 

Superior Court previously struck down a similar argument in In re M.G., 916 A.2d 1179, 1182 (Pa.Super, 2007). In 

that case, the Court rejected the defendant's argument that because the incident occurred in the victim's own 

bedroom, he could not be convicted of unlawful restraint. Id "Whether in her own home or elsewhere, [the 

defendant] restrained (the victim] and kept her in an area where she did not wish to remain." Id. (citing 

Commonwealth v, Prince, 719 A.2d 1086, 1089 (Pa.Super, 1998) (finding that the evidence supported unlawful 

restraint conviction where the victim was attacked in her own home and where she stayed near the defendant all 

night out of fear for her safety)). 

nose, shoving a washcloth in her mouth.iand choking her. Id at 116-17, 122-23, 126-27.2 

silence her screams by holding a pillow over her face, holding his hands over her mouth and 

lacerations on her lip and bruising on her neck. He spat in her face, smacked her, and tried to 

sons. Id at 116-17, 124-25, 127 190-91. He struck and assaulted her in various ways, causing 

the risk of serious bodily injury. He told her multiple times that he was going to kill her and her 

The evidence also sufficiently demonstrated that Appellant exposed the complainant to 

freedom to leave the apartment. 

these circumstances, Appellant clearly restrained the complainant and deprived her of her 

and told the complainant's sons not to remove anything or open the door. Id. at 82-83. Under 

phone. N. T. 10/22/15 at 118, 120. Furthermore, when the police arrived, he barricaded the door 

... -,, ~ 
13 

f)~ 

DATE: JULY 20, 2016 7 DIANA L. ANHALT, J. 

BY THE COURT: 

affirmed. 

evidence to find Appellant guilty of all offenses. Accordingly, the trial court's decision should be 

After review of the applicable statutes, testimony, and case law, there is sufficient 

CONCLUSION 

I .