J

- A03035

- 24

NON

- PRECEDENTIAL DECISION

- SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

WILLIAM RICHARD NULPH

Appellant :

:

:

:

:

:

:

:

: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 196 WDA 2023

Appeal from the Judgment of Sentence Entered August 9, 2022 In the Court of Common Pleas of Allegheny County Criminal Division at

No(s): CP

- 02

- CR

- 0003953

- 2019

BEFORE: BOWES, J., KUNSELMAN, J., and MURRAY, J.

MEMORANDUM BY MURRAY, J.: FILED: February 12, 2024

William Richard Nulph (Appellant) appeals from the judgment of

sentence imposed after a jury found him guilty of endangering the welfare of

children (EWOC). 1 We affirm.

The trial court detailed the relevant trial evidence in its opinion:

[O]n March 14, 2019, at 2:53 p.m., the Tarentum Police Department requested investigative assistance from Allegheny County Police Homicide Unit for a two (2) year old child found unresponsive in a swimming pool at 517 E 5th Avenue, Borough of Tarentum ( [Appellant’s] residence). Detective Mark Restori of the Allegheny County Police Homicide Unit responded to the

residence and was advised by Tarentum Police [] Detective Mark

Glozowski [] that when his Officers arrived on scene, [Appellant] was administering CPR on his daughter, I [. (the victim)] , who was eventually transported to Allegheny Valley Hospital by medics,

then flown to UPMC Children ’ s Hospital [Pediatric] Intensive Care Unit and placed on E [CM] O, E [x] tracorporeal Membr ane Oxygenation. ECMO is used when a ventilator [is insufficient to

_________________ __________ ______ ____ _______

1 18 Pa.C.S.A. § 4304(a)(1).J

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- 2

-

oxygenate ]

... the lungs. [N.T., 3/29/22

– 4/1/22 (tr ial), at]

11 [1]

- [] 12. Dr. Rachel Berger of Children ’ s Hospital characterized [the victim’s] condition as [being as] close to death as a child can

be. [ Id. at] 118

- [] 19. [The victim] remained in the intensive care unit through March 18, 2019, and was then stepped down until ultimately being released from Children’s Hospital on March 20, 2019.

... [Dr. Berger testified that w ] ithout ECMO and the other

life

- saving steps [, the victim] would have died. [ Id. at] 111

- [] 12

. Dr. Berger

... spoke with [the victim’s] parents at the hospital over the concern of the lack of supervision and [the victim’s] drowning. [Appellant] told Dr. Berger that he left [the victim] outside while

he went inside his home with his 8

- month

- old daughter. [Appellant] estimated that he was inside [ the home for approximately] 2

- 5 minutes and [he] then came outside and spent another few minutes looking for [the victim

, ] before he located

her at the bottom of the pool. [ Id. at] 110, 121

- [] 23.

Detective [] Restori testified that he arrived [at Appellant’s]

residence on March 14, 2019, after [the victim] had been taken from the scene by paramedics. [Appellant] was at the scene and consented to Detective Restori searching and photographing the

scene. [Appellant] was distraught and told [Detective] Restori

that it was an unusually warm 70

- degree day in March. [Appellant

told Detective Restori that Appellant ] doesn ’ t usually have the

care of the children himself and [that Appellant] decided to take

them outside [ prior to the victim’s drowning]

. [Appellant alleged his] 8

- month

- old [daughter] got fussy, so he went into the house for 30 seconds to get her a bottle. When [Appellant] came back outside, he could not find [the victim,] so he first went around to the front porch to see if she was in the sandbox and then went to the back yard [,] where he eventually found her at the bottom of the pool. [Appe llant] was adamant in speaking with Detective Restori that he was only inside the home for 30 seconds before he

came back outside to look for [the victim

. ]

The mobile crime unit photographed the home and yard and

documented multiple dangerous items and unsafe conditions for an unsupervised child. In the front yard [,] it was noted that there

was no fence between the road and an active railroad track. The back porch where [Appellant] left [the victim] had steps on both sides but no baby gates. The porch had baby items mixed in with dangerous and unsafe items in piles on the floor. There wereJ

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extension cords, gas cans, hunting arrows, and razor broadhead [] [arro ws,] in addition to other unsafe items [,] on the porch. [ Id. at] 183

. In the middle of the yard, located within 3 feet of a child ’ s swing, there was a large piece of railroad track weighing approximately 80 pounds that was unsecured but propped on a piece of railroad tie. [ Id. at] 192

- [] 94. There was also a hatchet lying unsecured on top of a railroad spike in that area and there was sharp, rusted metal sheeting lying in the yard. Ne xt to the

back porch was the side yard gate that led to the pool. The latch

was broken and there was no gate at the bottom of the stairs to the pool deck. There was no cover on the pool. The distance to the ground from the pool deck was 4 foot, 10 inches.

Trial Court Opinion, 5/19/23 , at 2

- 4 (unpaginated) (footnote omitted).

The Commonwealth charged Appellant with one count of EWOC in June

2019. The matter proceeded to a jury trial in March 20 2 2

. The

Commonwealth presented expert testimony from Dr. Berger. See N.T.,

3/29/22

– 4/1/22, at 1 00

- 19. Relevantly, o n re

- cross

- examination, the

following exchange occurred :

[Defense Counsel:] Was there any other information you received

whether [ sic ] the pool was gated or not?

THE COURT: That was asked and answered multiple times.

Did you have any information regarding the gate, other than what [Appellant] told you?

[D r. Berger ]: I had information from the District Attorney that this was the most dangerous home she had seen in her whole

career. That’s the information I had.

Id. at 153

. Defense counsel then moved for a mistrial. Id. As we explain

further below, the trial court ordered Dr. Berger’s above response to be

stricken from the record and advised the jury not to consider it. Id. at 154.

Defense counsel t hen renewed his mistrial motion at sidebar

, claiming Dr.J

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-

Berger’s response “was highly prejudicial ” and that the trial court’s “cautionary

instruction to the jury to disregard [Dr. Berger’s response] is not going to be

sufficient

. ” Id. T he trial court denied the mistrial motion. Id. at 15 4

- 5 5.

At the close of the Commonwealth’s case, Appellant moved for judgment

of acquittal. Id. at 255

- 57

. The trial court denied Appellant’s motion. Id. at

258. Appellant testified on his own behalf. Appellant also presented

testimony from his wife and several character witnesses. The jury found

Appellant guilty of EWOC on April 1, 2022

. On August 9, 202 2, the trial court

sentenced Appellant to 36 months of probation . The trial court additionally

ordered Appellant to complete parenting classes.

Appellant filed a post

- sentence motion (PSM) on August 19, 2022

,

challenging the verdict as against the weight and sufficiency of the evidence.

PSM, 8/19/22, ¶ 5

. O n January 13, 2023 , t he trial court entered an order

denying the PSM by operation of law

. This timely appeal followed. 2 A ppellant

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

Appellant presents four issues for review:

_________________ __________ ______ ____ _______

2 The clerk of courts failed to timely notify Appellant of the order denying the

PSM , pursuant to Pa.R.Crim.P. 720( B)(3) (governing denial of post

- sentence motions by operation of law ). S ee also id. 720(B)(3)(c) (requiring the clerk of courts to give defendant notice of order denying post

- sentence motion by operation of law )

. G iven this breakdown in the court’s operation, Appellant’s notice of appeal is timely. See Commonwealth v. Perry , 720 A.2d 734, 735 (Pa. Super. 2003) ( “ where the clerk of courts does not enter an order indicating that the post

- sentence motion is denied by operation of law and notify the defendant of same, a breakdown in the court system has occurred and we will not find an appeal untimely under these circumstances. ” ).J

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-

1. Whether there was sufficient evidence to prove [the] mens rea of [EWOC] ?

2. Whether there was sufficient evidence to prove [the] “course

of conduct” element of [EWOC] ?

3. Whether the trial court abused its discretion when it denied a mistrial after the Commonwealth’s expert, Dr. [] Berger,

testified that she had information that the home was the “most dangerous home she had seen in her whole career”?

4. Whether the trial court abused its discretion when it denied Appellant from bringing fact witnesses to testify regarding the fact that the children were never outside at all prior to the

incident?

Appellant’s Brief at 5.

Appellant first challenges the sufficiency of the evidence supporting his

EWOC conviction. See id. at 13

- 20. A challenge to the sufficiency of the

evidence “presents a question of law, for which our standard of review is de

novo and our scope of review is plenary.” Commonwealth v. Packer , 168

A.3d 161, 166 (Pa. 2017). W hen reviewing a sufficiency challenge,

we evaluate the record in the light most favorable to the

Commonwealth as verdict winner

, giving it the benefit of all

reasonable inferences to be drawn from the evidence. Evidence

will be deemed sufficient to support the verdict when it establishes

each material element of the crime charged and the commission

thereof by the accused, beyond a reasonable doubt. Any doubt

about the defendant’s guilt is to be resolved by the fact

- finder

unless the evidence is so weak and inconclusive that, as a matter

of law, no probability of fact can be drawn from the

combined circumstances. Additionally, the Commonwealth may
sustain its burden solely by means of circumstantial evidence.

Commonwealth v. Lake , 281 A.3d 341, 346 (Pa. Super. 2022) (citations

and quotations omitted).J

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-

The Crimes Code defines EWOC, in pertinent part, as follows:

A parent, guardian or other person supervising the welfare of a child under 18 years of age, or a person that employs or supervises such a person, commits an offense if he knowingly endangers the welfare of the child by violating a duty of care, protection or support.

18 Pa.C.S.A. § 4304(a)(1) (emphasis added). “ K nowingly” is defined as

follows:

(2) A person acts knowingly with respect to a material element of

an offense when:

(i ) if the element involves the nature of his conduct or the attendant circumstances, he is aware that his conduct is of that nature or that such circumstances exist; and

(ii) if the element involves a result of his conduct, he is aware that it is practically certain that his conduct will cause such a

result.

Id

. § 302(b)(2). “T he Commonwealth is not required to prove mens rea by

direct evidence. Frequently[,] such evidence is not available. In such cases,

the Commonwealth may rely on circumstantial evidence.” Commonwealth

v. Beasley , 138 A.3d 39, 48 (Pa. Super. 2016) (citation omitted).

This Court has explained that we

employ[] a three

- prong standard to determine whether the Commonwealth has met its burden of establishing the intent element of the EWOC offense. To support a conviction under the EWOC statute, the Commonwealth must establish each of the following elements : (1) the accused is aware of his/her duty to protect the child; (2) the accused is aware that the child is in circumstances that could threaten the child’s physical or psychological welfare; and (3) the accused has either failed to act

or has taken action so lame or meager that such actions cannot reasonably be expected to protect the child’s welfare.J

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-

Commonwealth v. Vela

- Garrett , 251 A.3d 811, 815 (Pa. Super. 2021)

(citation, ellipses, and brackets omitted).

“It is well

- established that child welfare statutes, such as EWOC, are

designed to cover a broad range of conduct in order to safeguard the welfare

and security of children. ” Commonwealth v. Krock , 282 A.3d 1132, 1138

(Pa. Super. 2022) (citation , quotation marks, ellipses, and footnote omitted).

The Pennsylvania Supreme Court has recognized that

[b]ecause of the diverse types of conduct that must be circumscribed, [] statutes [such as EWOC] are necessarily drawn broadly. It clearly would be impossible to enumerate every particular type of adult conduct against which society wants its children protected. W e have therefore sanctioned statutes pertaining to juveniles which proscribe conduct producing or tending to produce a certain defined result rather than itemizing every undesirable type of conduct.

Commonwealth v. Mack

, 359 A.2d 770, 772 (Pa. 1976) (emphasis and

ellipses omitted)

. “ Section 4304 is to be given meaning by reference to the

common sense of the community and the broad protective purposes for which

it was enacted.” Vela

- Garrett , 251 A.3d at 815 (citing Commonwealth v.

Taylor , 471 A.2d 1228, 1231 (Pa. Super. 1984)).

Instantly, Appellant claims the Commonwealth failed to produce

sufficient evidence to prove the mens rea of EWOC beyond a reasonable

doubt. See Appellant’s Brief at 13

- 20. Appellant asserts he “was not aware

that the circumstances his daughter was in could threaten her physical

condition.” Id. at 15. According to Appellant, he “could not have known that

his daughter would go off the porch, through a gate, up the pool stairs andJ

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-

fall into the pool because they were never really outside[.]” Id. (citation to

record omitted). Appellant emphasizes that at the time of the victim’s

drowning, Appellant was the sole supervis or of both the victim and her infant

sister, which was “a seldom incident[.]” Id. at 15, 16.

Appellant further argues he “did not fail to act or take such meager

actions that would not protect his daughter’s welfare. This incident was wholly

accidental. ” Id. at 16. Appellant claims that after he “searched the entire

yard for [the victim] until he found her in the bottom of the pool,” he “acted

appropriately.” Id. at 16

- 17. Appellant points out he retrieved the victim

from the pool and “began administering CPR and got paramedics to come....”

Id. at 17 (citation to record omitted).

The Commonwealth counters that it proved the mens rea of EWOC

beyond a reasonable doubt

. See Commonwealth Brief at 14

- 19. The

Commonwealth emphasizes that Appellant

unquestionably left [the victim] on the porch while he went inside [the home] to give a bottle to his younger daughter, a porch that had no safety gate that would have kept the [victim] from leaving,

nor would [Appellant] have been able to see her leave the porch from his purported vantage point in the kitchen [.]

Id. at 16 (citations to record omitted) ; see also id. ( pointing out that “the

latch to the gate that would have kept the [victim] out of the pool area was

broken.” (citation to record omitted)).

In support of his claim, Appellant heavily relies upon our decision in

Vela

- Garrett , 2 51 A.3d 811

, which, Appellant argues , is “analogous.”J

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- 9

-

Appellant’s Brief at 15

. S ee also id. at 14

- 1 5 , 18

- 19. Contrary to Appellant’s

claim, we conclude Vela

- Garrett is distinguishable. There, a jury convicted

the defendant of EWOC and driving under the influence, where the defendant

drove while purportedly intoxicated by marijuana, with an infant in the car

.

Vela

- Garrett , 251 A.3d at 813

- 14. On appeal, the defendant claimed that

the Commonwealth failed to prove the mens rea of EWOC

. Id. at 815

- 16.

We agreed, holding there was no evidence that the defendant acted

knowingly, where the police officer who conducted the traffic stop

did not observe any unsafe driving by [ the defendant] , or any other conduct that would constitute a “ tangible indicia of unsafe driving to a degree that creates a substantial risk of injury which was consciously disregarded.”

Id. at 818 (emphasis in original ; citation and brackets omitted ).

Instantly, the trial c ourt concluded in its opinion that

t he evidence was sufficient for the jury to conclude that [Appellant] knowingly violated his duty of care to [the victim,] when he left her without parental supervision in a yard that presented a perilous and dangerous situation for her due to [Appellant’s] failure to make it safe.

Trial Court Opinion, 5/19/23

, at 5 (unpaginated). We agree. As stated above

,

Appellant undisputedly left the two

- year

- old victim unsupervised on a porch

that led to the uncovered pool

, and the re was no functioning safety gate

. N.T.,

3/29/22

– 4/1/22, at 165

- 66, 183

- 84

. Further, police discovered numerous

dangerous conditions in Appellant’s yard

. Id. at 168 , 171

- 88 ; see also

Appellant’s Brief at 23 (conceding that the “ Commonwealth presentedJ

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-

evidence of dangerous equipment and materials scattered about Appellant’s

yard.”)

.

Based on the foregoin g, we conclude the Commonwealth proved the

mens rea of EWOC beyond a reasonable doubt. See

, e.g. , Commonwealth

v. Wallace , 817 A.2d 485, 492 (Pa. Super. 2002) (finding evidence sufficient

to prove mens rea of EWOC where the defendant’s home had “squalid living

conditions [that] threatened his children’s welfare

, ” “water running into the

electrical box creating a fire hazard,” and “no working furnace for heat”)

. C f

.

Vela

- Garrett

, 251 A.3d at 81 8 ; Commonwealth v. Howard

, 257 A.3d

1217, 1228

- 29 (Pa. 2021 ) (finding evidence insufficient to sustain EWOC

conviction where the defendant allowed her three

- year

- old daughter to ride in

a car

- for

- hire without a child restraint or child safety seat; holding the

defendant’s conduct did not offend the common sense of the community ).

Thus, Appellant’s first issue does not merit relief.

In his second issue, Appellant claims the e vidence d oes not support his

EWOC conviction being graded as a first

- degree felony, 3 where the

_________________ __________ ______ ____ _______

3 The EWOC statute provides the following with respect to grading:

(1) Except as provided under paragraph (2), the following apply:

(i) An offense under this section constitutes a misdemeanor

of the first degree.

(Footnote Continued Next Page)J

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-

“Commonwealth failed to provide sufficient evidence to prove that Appellant

engaged in a ‘course of conduct’ ... [of] endangering the welfare of his child.”

Appellant’s Brief at 21. Appellant claims,

[t] he Commonwealth presented evidence of dangerous equipment and materials scattered about Appellant’s yard. These facts are irrelevant to the conduct that occurred. Appellant would argue that a nexus must exist between the dangerous activity or

circumstanc e(s) and the injury that occurred to [the victim]. These facts regarding the equipment and materials scattered about Appellant’s yard cannot be a basis for “course of conduct” because the conduct that the[ Commonwealth] allege[s] had nothing to do with what occurred to [the victim].

Id. at 23

- 24 (emphasis and citation to record omitted).

_________________ __________ ______ ____ _______

(ii) If the actor engaged in a course of conduct of endangering the welfare of a child, the offense constitutes a felony of the third degree.

(iii) If, in the commission of the offense under subsection (a)(1), the actor created a substantial risk of death or
serious bodily injury, the offense constitutes a felony of the

third degree.

(iv) If the actor’s conduct under subsection (a)(1) created

a substantial risk of death or serious bodily injury and was part of a course of conduct, the offense constitutes a felony

of the second degree.

(2) The grading of an offense under this section shall be increased

one grade if, at the time of the commission of the offense, the

child was under six years of age.

18 Pa.C.S.A. § 4304(b). “ Although the EWOC statute does not define

‘ course of conduct ,’ the phrase is clearly used in that context to differentiate the penalties for single and multiple endangering acts.” Commonwealth v. Kelly , 102 A.3d 1025, 1031 (Pa. Super. 2014) ( en banc ).J

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-

Appellant cites this Court’s decision in Commonwealth v. Popow , 844

A.2d 13 (Pa. Super. 2004), where we stated:

[T]he logical interpretation of the legislative language in [ 18 Pa.C.S.A. § 4304] (b) is that it is designed to punish a parent who

over days, weeks, or months, abuses his children, such as repeatedly beating them or depriving them of food. The statute was clearly not designed for an event that occurs within minutes, or, perhaps in a given case, even hours.

Id. at 17 (internal citation omitted); Appellant’s Brief at 23 (citing Popow and

stating, “Appellant’s case occurred within a few minutes, if not seconds.”).

According to Appellant, the “purpose of the ‘course of conduct’ element was

enacted to make criminal conduct that endangers or ... depletes the welfare of

a child. It was not meant for accidental, random incidents like the one that

occurred in Appellant’s case.” Appellant’s Brief at 25.

The Commonwealth counters that it presented the jury with sufficient

evidence to find that Appellant endangered the welfare of the victim through

a “course of conduct,” and as a result, Appellant’s EWOC conviction was

properly graded as a first

- degree fel ony. See Commonwealth Brief at 20

- 2 4

.

The Commonwealth emphasizes the above

- mentioned dangerous conditions

present in Appellant’s yard. I d. at 23

- 24

. The Commonwealth claims that

“even if the jury were to have focused only on [Appellant’s] behavior on March

14, 2019, there was [] sufficient evidence of a course of conduct” where

Appellant

, “by his own admission, left the victim alone outside on two separate

occasions....” Id. at 23 (emphasis and citation omitted). The CommonwealthJ

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-

further argues that Popow is unavailing to Appellant, where subsequent

appellate decisions have “eroded” Popow

. Id. at 21.

“ [ A ] claim that the [trial] court improperly graded an offense f or

sentencing purposes implicates the legality of the sentence. ”

Commonwealth v. Hoff man , 198 A.3d 1112, 1123 (Pa. Super. 20 18 )

(citation omitted)

. Accordingly, “ [ o ] ur standard of review is de novo , and the

scope of our review is plenary. ” Id.

We are guided by our unpublished memorandum 4 in Commonwealth

v. Velez

- Diaz

, 301 A.3d 875, 643 MDA 2022 , 2023 WL 3813 836 (Pa. Super.

f iled June 5, 2023) (unpublished memorandum) . There, the defendant fled

police during an attempted traffic stop , while driving a truck in which his

girlfriend and her three

- year

- old son were passengers. Id. (unpublished

memorandum at 3

- 4). The defendant ignored his girlfriend’s repeated

entre a ties to stop the truck because she feared for her life. Id. (unpublished

memorandum at 4). The defendant crashed the truck during the chase and

fled the scene on foot , leaving the child in the truck

. Id.

On appeal, the defendant claimed that the evidence did not support the

jury’s conviction of EWOC being graded as a first

- degree felony under 18

Pa.C.S.A. § 4304(b)

, as the evidence failed to establish a course of conduct.

_________________ __________ ______ ____ _______

4 Pursuant to Pa.R.A.P. 126(b)(1)

- (2), unpublished non

- precedential

memorandum decisions of th is Court filed after May 1, 2019 may be cited for their persuasive value.J

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-

Id. (unpublished memorandum at 6 , 9 ). Citing Popow , t h e defendant argue d

his conduct on the night of the crash constituted a “single act” and that “this

Court has held that a ‘single act’ cannot amount to a ‘course of conduct [.]’”

Id. (unpublished memorandum at 9).

This Court held Popow was distinguishable and that t he defendant had

engaged in a course of conduct :

First, the [] language from Popow concerning the timing

of events was not directly relevant to the holding in that case. Rather, the Popow Court’s holding was based on the conclusion

that the Commonwealth failed to allege a course of conduct in the

criminal information, failed to present evidence of a course of

conduct at trial, and that the trial court did not instruct the jury

on course of conduct pursuant to 18 Pa.C.S. § 4304(b). Popow

, 844 A.2d at 18 (holding that “course of conduct” is “a jury question, that impacts the grading of t he offense. We cannot merely assume the jury found this additional fact when no evidence of it was presented at trial and no mention of it was made in the jury’s charge.”).

Recently, i n Commonwealth v. Kohr

, 1252 MDA 2018, 219 A.3d 235

, 2019 WL 2486762 (Pa. Super. filed Jun. 14, 2019) (unpublished mem.), a panel of this Court addressed the

course of conduct language from Popow

. In Kohr

, this Court

noted that although Popow mentioned the amount of time in

which a course of conduct may occur under the EWOC statute, the

Kohr Court did not view that language from Popow as binding.

... Id. [ ] at *6 n.7. The Kohr Court stated: “ [w]hile the Popow

Court implied that multiple days of abuse was required to find a

course of conduct, we do not read the statute as narrowly. ”

Id. (emphasis added). The Kohr Court then explained that the

Standard Suggested Jury Instructions for EWOC, with the

additional factor of a course of conduct, charges the jury that “ [a]

course of conduct means a pattern of actions composed of more than one act over a period of time, however short

, evidencing a continuity of conduct[.] ” Id. (quoting Pa. SSJI (Crim), § 15.4304B) (some formatting altered and emphasis added). Upon review, we find the Kohr Court ’ s conclusion is persuasive and

conclude that a course of conduct may occur over a period of timeJ

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- 15

-

“ however short. ” See Kohr

, 219 A.3d 235

, 2019 WL 2486762 at *6, n.7.

Velez

- Diaz

, (unpublished memorandum at 10

- 12 ) (footnotes omitted). The

Velez

- Diaz Court held that the defendant’s

act of fleeing from police and crashing his vehicle, which was then followed by [the defendant] abandoning the vehicle with the child still inside and running away on foot, constituted more than a single act and established a course of conduct under Sectio n 4304(b).

Id. (unpublished memorandum at 13).

Upon review of the record and the law, we conclude the evidence, w hen

viewed in the light most favorable to the Commonwealth, was sufficient to

establish a course of conduct. I nitially, the Commonwealth specifically alleged

a course of conduct in the criminal information. Criminal Information,

6/27/19

. Further

, t he trial court defined “course of conduct” for the jury

during closing instructions

, consistent with the Pennsylvania Suggested

Standard Criminal Jury Instructions

. N.T., 3/29/22

– 4/1/22, at 448 (“A

course of conduct means a pattern of actions composed of more than one act

over a period of time, however short, evidencing a continuation of conduct.” ) ;

Pa. SSJI (Crim), §15.4304B ; cf. Popow , 844 A.2d at 18 ( holding a trial court

must instruct the jury with respect to course of conduct in order to implicate

the relevant provisions o f 18 Pa.C.S.A. § 4304(b) , as this is a factual question

for the jury )

. We are persuaded by the Commonwealth’s argument that the

evidence established a course of conduct where Appellant,J

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- 16

-

by his own admission, left the victim alone outside on two separate occasions

— first, when he took his younger daughter inside after she had begun to “get[ ] a little fussy,” and then again a short time later when he went back inside to give that same girl a bottle. Thus, even if the jury were to have focused only on [Appellant’s] behavior on March 14, 2019, there was indeed

sufficient evidence of a course of conduct....

Commonwealth Brief at 23 (emphasis in original) ; see also N.T., 3/29/22

–

4/1/22, at 274

- 7 7 (Appellant’s testimony). Based on the foregoing,

Appellant’s second issue does not merit relief.

In his third issue, Appellant claims that the trial court improperly denied

his mis trial motion

, based on Dr. Berger’s trial testimony that she “ had

information from the District Attorney that this was the most dangerous home

she had seen in her whole career.” Appellant’s Brief at 27 (quoting N.T.,

3/29/22

– 4/1/22, at 153). According to Appellant, Dr. Berger’s remark was

“ wholly im proper, [] highly prejudicial and a mistrial should have been granted

as the [trial court’s] curative instruction did not cure this error.” Id. at 27

.

Appellant claims that the “jury was left to abdicate their factfinding ability and

leave it to Dr. Berger. She could not opine what the condition of the house

was since she never actually saw it.” Id. at 33 ; see also id. at 32 (arguing

that “Dr. Berger’s understanding of what led to the drowning” is “ only based

upon what other people tell her”).

The Commonwealth counter s the trial court properly denied Appellant’s

mistrial motion, where the court immediately struck Dr. Berger’s comment

from the record and promptly and adequately instructed the jury to disregardJ

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- 17

-

the comment

. See Commonwealth Brief at 25

- 30. The Commonwealth claims

that Dr. Berger’s commen t “did not deprive the [A]ppellant of a fair trial” and

“any potential prejudice [from the comment] was overcome” by the trial

court’s curative instruction. Id. at 30.

“It is well

- settled that the review of a trial court’s denial of a motion for

a mistrial is limited to determining whether the trial court abused its

discretion.” Commonwealth v. Chamberlain , 30 A.3d 381, 422 (Pa. 2011)

(citation omitted) ; see also Commonwealth v. Szakal , 50 A.3d 210, 218

(Pa. Super. 20 12 ) ( “ th e decision to declare a mistrial is within the sound

discretion of the trial court and will not be reversed absent a flagrant abuse of

discretion .” (citation and brackets omitted)). “ Abuse of discretion is not

merely an error of judgment, but rather where the judgment is manifestly

unreasonable or where the law is not applied or where the record shows that

the action is a result of partiality, prejudice, bias or ill will.” Commonwealth

v. Young , 989 A.2d 920, 924 (Pa. Super. 2010) (citation omitted).

“ A mistrial is an extreme remedy that must be granted only when an incident

is of such a nature that its unavoidable effect is to deprive defendant of a fair

trial.” Szakal , 50 A.3d at 218 (citation, ellipses, and brackets omitted).

However, a mistrial i s not necessary where cautionary or curative instructions

are adequate to overcome any potential prejudice. Commonwealth v.

Spotz

, 716 A.2d 580, 593 (Pa. 1998) ; see also Commonwealth v. Leap

,

222 A.3d 386, 392 (Pa. Super. 2009) ( “When a trial court gives adequateJ

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cautionary instructions to the jury, it is not necessary for the court to declare

a mistrial.” ). The law presumes that a jury will follow the trial court’s

instructions. Commonwealth v. Speight , 854 A.2d 450, 458 (Pa. 2004).

Instantly, we conclude that the trial court did not err in denying

Appellant’s mistrial motion. A fter Dr. Berger’s improper comment, the trial

court immediately ordered that it be stricken from the record and instructed

the jury to disregard it. N.T., 3/29/22

– 4/1/22 , at 154. Specifically, the trial

court stated:

Ladies and gentlemen, since that didn’t affect this witness’s opinion, I’m going to order that stricken from the record. You are

not to consider that testimony in any way. Okay?

So, remember earlier in the trial, I told you anything that I’ve ordered stricken from the record, you are not to consider. 5

So I’m going to ask that you not consider that at all.

Id. (footnote added) . The trial court responded to defense counsel’s mistrial

motion

, and his claim that the court’s c urative instruction was inadequate to

cure a n y prejudice, by stating

, “I have to trust the jury is going to follow my

[cautionary] instructions as I instructed them to.” Id. at 155. Further, in the

trial court’s closing instructions, it a gain told the jury that it

must not consider any testimony

... to which I have sustained an objection or which I have ordered stricken from the record.

_________________ __________ ______ ____ _______

5 The trial court instructed the jury as follows during opening instructions: “If

I order something stricken from the record, you are not to consider that. You

are not to consider any evidence that I have ordered stricken .” N.T., 3/29/22

– 4/1/22 , at 18

- 19.J

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- 19

- As you will recall, I did order some testimony stricken from the record[,] and you are not to consider that testimony.

Id. at 437.

It is presumed that the jury followed the trial court’s instructions.

Speight

, 854 A.2d at 458

. Contrary to Appellant’s claim, the trial court’s

timely c urative instruction to disre gard Dr. Berger’s improper comment was

not inadequate to cure any potential prejudice to Appellant. Thus, a mistrial

was not warranted. Leap

, 222 A.3d at 392 (a mistrial is unnecessary where

the trial court g ave the jury adequate cautionary instructions ). Accordingly,

Appellant’s third issue does not merit relief.

In his final issue, Appellant claims that the trial court abused its

discretion when it denied his request to “present fact witnesses to testify to

personal knowledge that [Appellant’s] children were never outside prior to the

incident. These facts were relevant to the case to rebut elements ” of the

EWOC charge. Appellant’s Brief at 35 ; see also id. at 41 (asserting the “ fact

witnesses would have rebutted at least the element of ‘course of conduct’”

under 18 Pa.C.S.A. § 4304(b))

. According to Appellant, the “ Commonwealth

would not have been prejudiced by the fact witnesses testifying to how seldom

[Appellant’s] children were outside.” Id. at 4 3

.

The Commonwealth counters that the trial court did not err in precluding

this testimony because it was irrelevant. See Commonwealth Brief at 3 4

- 35.

The Commonwealth disputes Appellant’s claim that the proposed testimony

could tend to disprove “ course of conduct, ” arguing thatJ

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the course of conduct engaged in by [Appellant] was the dangerous condition in which he kept his yard and pool, not whether or not he was in the habit of letting his children play

there.

Id. at 35.

Our “standard of review for a trial court’s evidentiary rulings is narrow.”

Commonwealth v. Mendez , 74 A.3d 256, 260 (Pa. Super. 2013) (citation

omitted). Rulings “ on admissibility are within the sound discretion of the trial

court and will not be overturned absent an abuse of discretion or

misapplication of law. ” Commonwealth v. Jackson , 283 A.3d 814, 817 (Pa.

Super. 2022) (citation omitted).

Further,

[t] he threshold inquiry with admission of evidence is whether

evidence is relevant.” Commonwealth v. Collins

, 888 A.2d 564,

577 (Pa. [] 2005). Evidence is relevant if “it has the tendency to

make a fact more or less probable than it would be without the

evidence” and “the fact is of consequence in determining the

action.” Pa.R.E. 401(a)

- (b). “Evidence is relevant if it logically

tends to establish a material fact in the case, tends to make a fact

at issue more or less probable[,] or supports a reasonable

inference or presumption regarding a material fact.”

Commonwealth v. Drumheller

, 808 A.2d 893, 904 (Pa. [] 2002). “ All relevant evidence is admissible, except as otherwise provided by law. Evidence that is not relevant is not admissible.”

Pa.R.E. 402. “The court may exclude relevant evidence if its probative value is outweighed by a danger of one of more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting

cumulative evidence. ” Pa.R.E. 403.

Jackson , 283 A.3d at 817

- 18 (some citations modified).

Upon review, we conclude the trial court did not abuse its discretion in

limiting Appellant’s proposed fact witness testimony , as it was not relevant.J

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-

We agree with t he trial court ’s reasoning at trial

, wherein it explained to

defense counsel

,

we are talking about that day, and I ’ m going to try to orient you

to March 14th, 2019. The allegation is on that date, ... [the victim] was left unsupervised and drown [ed] in the pool. There is no

relevance to what went on in the past. So those witnesses aren ’ t

fact witnesses.

Id. at 2 60

- 61

. Whether Appellant’s neighbors had ever observed the victim

and her sister in Appellant’s yard prior to March 14, 2019, was not relevant to

any issue before the jury . Thus, Appellant’s final issue lacks merit.

Judgment of sentence affirmed.

DATE: 02/12/2024