J-A03035-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

WILLIAM RICHARD NULPH 

Appellant

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 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 Membrane 

Oxygenation. ECMO is used when a ventilator [is insufficient to

____________________________________________

1 18 Pa.C.S.A. § 4304(a)(1).
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oxygenate] ... the lungs. [N.T., 3/29/22 – 4/1/22 (trial), 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. [Appellant] 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 were 
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extension cords, gas cans, hunting arrows, and razor broadhead[] 

[arrows,] 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. Next 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 2022. The 

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

3/29/22 – 4/1/22, at 100-19. Relevantly, on 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?

[Dr. 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 then renewed his mistrial motion at sidebar, claiming Dr. 
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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. The trial court denied the mistrial motion. Id. at 154-55. 

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, 2022, 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. On January 13, 2023, the trial court entered an order 

denying the PSM by operation of law. This timely appeal followed.2 Appellant 

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

Appellant presents four issues for review:

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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). See 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). Given 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.”).
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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). When 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). 
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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). “Knowingly” 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). “The 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.
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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. We 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 and 
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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 supervisor 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, 251 A.3d 811, which, Appellant argues, is “analogous.” 
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Appellant’s Brief at 15. See also id. at 14-15, 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 court concluded in its opinion that

the 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 there 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 presented 
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evidence of dangerous equipment and materials scattered about Appellant’s 

yard.”). 

Based on the foregoing, 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”). Cf. 

Vela-Garrett, 251 A.3d at 818; 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 evidence does not support his 

EWOC conviction being graded as a first-degree felony,3 where the 

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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)
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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 

circumstance(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). 

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(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). 
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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 felony. See Commonwealth Brief at 20-24. 

The Commonwealth emphasizes the above-mentioned dangerous conditions 

present in Appellant’s yard. Id. 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 Commonwealth 
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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 for

sentencing purposes implicates the legality of the sentence.” 

Commonwealth v. Hoffman, 198 A.3d 1112, 1123 (Pa. Super. 2018)

(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 memorandum4in Commonwealth 

v. Velez-Diaz, 301 A.3d 875, 643 MDA 2022, 2023 WL 3813836 (Pa. Super.

filed 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 

entreaties 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 this Court filed after May 1, 2019 may be cited for 

their persuasive value. 
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Id. (unpublished memorandum at 6, 9). Citing Popow, the defendant argued 

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 the 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 the 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, in 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 time
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“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 Section 

4304(b).

Id. (unpublished memorandum at 13). 

Upon review of the record and the law, we conclude the evidence, when 

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

establish a course of conduct. Initially, the Commonwealth specifically alleged 

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

6/27/19. Further, the 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 of 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,
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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 274-77 (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 mistrial 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 improper, [] 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 counters 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 disregard 
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the comment. See Commonwealth Brief at 25-30. The Commonwealth claims 

that Dr. Berger’s comment “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. 2012) (“the 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 is 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 adequate 
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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. After 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 curative instruction was inadequate to 

cure any 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 again 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.
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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 curative instruction to disregard 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 gave 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 43. 

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

this testimony because it was irrelevant. See Commonwealth Brief at 34-35. 

The Commonwealth disputes Appellant’s claim that the proposed testimony

could tend to disprove “course of conduct,” arguing that
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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. 
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We agree with the 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 260-61. 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