J-S39036-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

CELESTIN JULES 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 656 MDA 2023

Appeal from the Judgment of Sentence Entered April 21, 2023

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

No(s): CP-06-CR-0004101-2021

BEFORE: DUBOW, J., McLAUGHLIN, J., and McCAFFERY, J.

MEMORANDUM BY McCAFFERY, J.: FILED: DECEMBER 18, 2023

Celestin Jules (Appellant) appeals from the judgment of sentence 

entered in the Berks County Court of Common Pleas, following his non-jury 

conviction of one count of endangering the welfare of children (EWOC).1 

Contemporaneous with this appeal, Appellant’s counsel, William C. Bispels, 

Esquire, has filed a petition to withdraw from representation and an Anders

brief. See Anders v. California, 386 U.S. 738 (1967); Commonwealth v. 

Santiago, 978 A.2d 349 (Pa. 2009). The Anders brief presents challenges 

to the sufficiency and weight of the evidence supporting Appellant’s 

conviction. In addition, Appellant submitted a pro se answer and 

supplemental response to the Anders brief raising additional claims. Based 

on the following, we affirm.

____________________________________________

1 18 Pa.C.S. § 4304(a)(1).
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On October 6, 2021, Appellant was charged with one count of EWOC in 

connection with the care of his 10-year-old son. The case proceeded to a 

bench trial on March 7, 2023, during which Appellant was represented by 

Corey S. Chwiecko, Esquire.

The trial court summarized the relevant testimony as follows:

Deneida Perez testified that she is a case manager for Signature 

Family Services, which is a contract provider for Berks County 

Children and Youth Services. Ms. Perez testified that she worked 

with . . . Appellant and his son, [S.J.], for two to three months. 

Ms. Perez testified that [S.J.] required services because he is 

nonverbal and was diagnosed with autism and ADHD. On July 28, 

2021, when [S.J.] was ten years old, Ms. Perez had a visit 

scheduled with [S.J.] and was supposed to also meet with . . . 

Appellant. However, . . . Appellant called her and said that he 

would not be coming.

Ms. Perez testified that she went to an apartment located in 

the 600 block of North Fifth Street in the City of Reading to see 

[S.J.] and meet with [S.J.]’s caregiver, who was named Patrick. 

When Ms. Perez arrived, she observed that Patrick was sitting 

outside on a step. Ms. Perez identified herself and asked to see 

[S.J.]. Patrick led Ms. Perez to a room that had what she 

described as a barricade blocking the door.

After Patrick moved a chair, a table, two doors, and a stove 

out of the way, Ms. Perez was able to enter [S.J.]’s room. Ms. 

Perez observed what she described as a disheveled bed on the 

floor and a door that was blocking most of the window to the room. 

[S.J.] was wearing a t-shirt and nothing from the waist down. Ms. 

Perez testified that she observed staining in the room and that 

there was the smell of urine. Ms. Perez did not see any toys, 

books, or food in the bedroom. Photographs of the apartment 

were admitted into evidence as Commonwealth’s Exhibits 1-18.

Ms. Perez told Patrick that it was not appropriate to have 

the items blocking the door to the room and testified that Patrick 

agreed. Because [S.J.] was not toilet trained, Ms. Perez made 

sure that he had a dry diaper as well as a snack and a drink before

she left. After leaving the apartment and speaking to her 
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supervisor Ms. Perez returned and asked to see [S.J.] again. After 

Patrick led Ms. Perez back in, she observed that the barricade was 

up again.

Ms. Perez testified that she then spoke to . . . Appellant and 

informed him of the situation with the barricade. Ms. Perez 

testified that . . . Appellant, whom she described as irate, said that 

he told Patrick to do that. Ms. Perez testified that . . . Appellant 

did not give her any more information about Patrick and said that 

. . . Appellant made no attempt to see his son after she spoke to 

him. Ms. Perez subsequently removed [S.J.] from the residence 

and took him to LIFE House in Reading, which is an after-hours 

facility for Berks County Children and Youth Services. 

On cross-examination, Ms. Perez testified that the entire 

time she was working as [S.J.]’s caseworker, she was aware that 

. . . Appellant lived in Lititz with his wife and other children, while 

[S.J.] lived in the apartment in Reading with a caretaker. 

However, Ms. Perez further testified that she met with . . . 

Appellant at the apartment in Reading and that . . . Appellant was 

aware of the physical condition of the apartment and the bedroom 

of the child.

In addition, Ashley Frey, an emergency duty caseworker for 

Berks County Children and Youth Services, testified that she spoke 

to . . . Appellant on the phone the day [S.J.] was removed from 

the apartment and that . . . Appellant was unwilling to come to 

Reading or send a different caregiver. . . . Appellant indicated 

that he was content with the care that [S.J.] was receiving from 

Patrick and stated that Patrick was caring for the child pursuant 

to his instructions. . . . Appellant stated that if [S.J.] were a 

different child, barricading him in the room would not be 

appropriate. However, because he has special needs, barricading 

him in the room is necessary. When Ms. Frey tried to discuss why 

barricading the child in the room was inappropriate, . . . Appellant 

replied, “Says you.”

Finally, Criminal Investigator (hereinafter “C.I.”) Christopher 

Santoro of the Reading Police Department testified that as part of 

his investigation, he executed a search warrant at 631 North Fifth 

Street, Apartment 1F, in the City of Reading. C.I. Santoro took 

photographs of the apartment and testified that the child’s 

bedroom smelled of urine and feces and that there appeared to 

be dried feces on the walls. C.I. Santoro spoke to . . . Appellant 

about the conditions in which the child had been living and
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testified that . . . Appellant was aware that the child had been 

barricaded in the room. . . . Appellant said that he instructed 

Patrick to do that and said that it was for the child’s own good. 

When C.I. Santoro commented that he would not have treated his 

dog in that fashion, . . . Appellant responded, “That is you.”

Trial Ct. Op., 6/22/23, at 3-6 (record citations omitted). 

C.I. Santoro also testified that, as part of his investigation, he reviewed 

the notes of testimony from S.J.’s dependency hearing, which was conducted 

on August 4, 2021. See N.T. Trial, 3/7/23, at 72-73. The transcript from the 

dependency hearing was marked as evidence and admitted at trial. Appellant 

did not testify on his own behalf or present any evidence.

At the conclusion of trial, the court found Appellant guilty of EWOC. On 

April 21, 2023, the trial court sentenced Appellant to a term of 11 1/2 to 23 

months’ incarceration, followed by five years of probation. Appellant did not 

file a post-sentence motion. Instead, on April 28, 2023, Appellant filed a pro 

se notice of appeal. Shortly thereafter, the trial court granted Attorney 

Chwiecko’s request to withdraw because Attorney Bispels had entered his 

appearance.2

When, as here, counsel filed a petition to withdraw and accompanying 

Anders brief, we must first examine the request to withdraw before 

addressing any of the substantive issues raised on appeal. Commonwealth 

____________________________________________

2 Attorney Bispels complied with the trial court’s order to file a Pa.R.A.P. 

1925(b) concise statement of errors complained of on appeal.
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v. Bennett, 124 A.3d 327, 330 (Pa. Super. 2015). An attorney seeking to 

withdraw from representation on appeal must:

1) petition the court for leave to withdraw stating that, after 

making a conscientious examination of the record, counsel has 

determined that the appeal would be frivolous; ) furnish a copy of 

the brief to the defendant; and 3) advise the defendant that he or 

she has the right to retain private counsel or raise additional 

arguments that the defendant deems worthy of the court’s 

attention.

Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa. Super. 2013) (en 

banc). Pursuant to Santiago, counsel must also:

(1) provide a summary of the procedural history and facts, with 

citations to the record; (2) refer to anything in the record that 

counsel believes arguably supports the appeal; (3) set forth 

counsel’s conclusion that the appeal is frivolous, and (4) state 

counsel’s reasons for concluding that the appeal is frivolous. 

Counsel should articulate the relevant facts of record, controlling 

case law, and/or statutes on point that have led to the conclusion 

that the appeal is frivolous.

Id., quoting Santiago, 978 A.2d at 361.

In the present case, the brief and motion to withdraw filed by Attorney 

Bispels substantially comply with the requirements of Anders and Santiago. 

See Cartrette, 83 A.3d at 1032. However, we point out that counsel’s motion

to withdraw and letter to Appellant state the appeal is meritless, rather than 

frivolous. See Motion to Withdraw as Counsel, 8/22/23; see also Attorney 

Bispels’ Letter to Appellant, 8/22/23. We remind counsel that the correct 

standard required to withdraw from representing a client on direct appeal is a 

determination that the appeal is frivolous. See Cartrette, 83 A.3d at 1032; 

Santiago, 978 A.2d at 361. The two terms are not synonymous. See 
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Commonwealth v. Hipps, 274 A.3d 1263, 1271 n.3 (Pa. Super. 2022) 

(“Frivolousness and meritless are distinct concepts. [F]rivolous is a slightly 

higher standard than lack of merit; an argument may be meritless, but not 

frivolous.”) (citations & quotation marks omitted), appeal denied, 288 A.3d 

1292 (Pa. 2022); Commonwealth v. Smith, 700 A.2d 1301, 1305 n.10 (Pa. 

Super. 1997) (“[A]n appeal is frivolous where it lacks any basis in law or fact.”) 

(citation & quotation marks omitted).

Nevertheless, while Attorney Bispels used the term meritless in his 

motion and letter to Appellant, he concludes in the Anders brief that there 

are “no non-frivolous argument[s]” to support Appellant’s appeal. See 

Anders Brief at 19. Thus, we conclude Attorney Bispels’ motion to withdraw 

and Anders brief substantially meet the requirements of Anders and 

Santiago. Further, Attorney Bispels has provided this Court with a copy of 

the letter he sent to Appellant, advising him of his right to proceed with newly 

retained counsel or pro se, and to raise any additional points for this Court’s 

attention. See Attorney Bispels’ Letter to Appellant, 8/22/23. Thereafter, 

Appellant filed both a response and supplemental response raising additional 

claims which we will discuss infra.

Thus, we proceed to address the substantive claims presented in the 

Anders brief, as well as Appellant’s pro se responses, and then conduct a “full 

examination of all the proceedings, to decide whether the case is wholly 

frivolous.” Commonwealth v. Yorgey, 188 A.3d 1190, 1196 (Pa. Super. 

2018) (en banc) (citation & emphases omitted). If we agree with Attorney 
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Bispels’ assessment, “[we] may grant his request to withdraw and dismiss the 

appeal[.]” Id. (citation omitted).

As mentioned above, the Anders brief presents two substantive issues 

for our review:

1. Whether the evidence at trial was sufficient to support a verdict 

of guilty of [EWOC?]

2. Whether the verdict of guilty of [EWOC] was contrary to the 

weight of the evidence[?]

Anders Brief at 7 (some capitalization omitted).

The first issue on appeal challenges the sufficiency of the evidence 

supporting Appellant’s EWOC conviction. See Anders Brief at 16. We begin 

with our well-settled standard of review: 

As a general matter, our standard of review of sufficiency claims 

requires that we evaluate the record in the light most favorable to 

the verdict winner giving the prosecution 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. Nevertheless, 

the Commonwealth need not establish guilt to a mathematical 

certainty. 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.

The Commonwealth may sustain its burden by means of wholly 

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

establishing a defendant’s participation in a crime is circumstantial 

does not preclude a conviction where the evidence coupled with 

the reasonable inferences drawn therefrom overcomes the 

presumption of innocence. Significantly, we may not substitute 

out judgment for that of the fact finder; thus, so long as the 

evidence adduced, accepted in the light most favorable to the 

Commonwealth, demonstrates the respective elements of a 
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defendant’s crimes beyond a reasonable doubt, the . . . 

convictions will be upheld.

Commonwealth v. Windslowe, 158 A.3d 698, 708-09 (Pa. Super. 2017) 

(citation omitted).

The crime of EWOC is defined, in relevant 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. § 4304(a)(1).

Therefore, to establish a violation of Section 4304, the Commonwealth 

must demonstrate the following:

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.

If the Commonwealth fails to prove any one of these elements, 

there is insufficient evidence to sustain a conviction for child 

endangerment.

Commonwealth v. Pahel, 689 A.2d 963, 964 (Pa. Super. 1997) (citation 

omitted).

Moreover:

The “knowing” element of the crime applies to the general issue 

of whether the defendant knew that he was endangering the 

child’s welfare, not whether the defendant knew that he would 

cause any particular result.
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Commonwealth v. Smith, 956 A.2d 1029, 1038 (Pa. Super. 2008) (en 

banc).

We also emphasize our commentary in Commonwealth v. Taylor, 471 

A.2d 1228 (Pa. Super. 1984), regarding the legislature’s intent in enacting 

Section 4304: 

The Supreme Court has said that Section 4304 was drawn 

broadly to cover a wide range of conduct in order to 

safeguard the welfare and security of children. It is to be 

given meaning by reference to the common sense of the 

community and the broad protective purposes for which it 

was enacted. Thus, the common sense of the community, as well 

as the sense of decency, propriety and the morality which most 

people entertain is sufficient to apply the statute to each particular 

case, and to individuate what particular conduct is rendered 

criminal by it.

Id. at 1231 (emphasis added; citations & quotation marks omitted).

Appellant contends that the conditions in which his child, S.J., was found 

were necessary and acceptable for S.J.’s protection. See Anders Brief at 16. 

Moreover, in his pro se response to the Anders brief, Appellant insists that 

the Commonwealth failed to establish the knowing element of EWOC because 

“the caretaker [watching S.J.] went way over what [A]ppellant instructed him 

to do, [which was only] to place a gate in front of SJ’s door . . . when [the 

caretaker had] to take a shower or bath” so that S.J. was not left unattended. 

See Appellant’s pro se Answer to Anders, 9/19/23, at 7. He further asserts 

that the “Commonwealth did not establish [he] was aware [that] the nature 

of his conduct certainly will cause such result[.]” See id. at 8.
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Appellant also argues the Commonwealth failed to establish the 

supervising element of the crime because Patrick “was the one supervising 

[S.J.] while [A]ppellant [was] at work.” See Appellant’s pro se Answer to 

Anders at 8. Lastly, Appellant asserts that the Commonwealth never 

presented expert testimony to support its claims. See id.

We agree with the trial court’s determination that the “facts, taken 

together, were sufficient for [the] court as fact-finder to find Appellant guilty 

of” EWOC. Trial Ct. Op. at 6. 

First, Appellant was aware of his duty to protect his son. See Pahel, 

689 A.2d at 964. During the dependency hearing,3 Appellant confirmed that 

he had been S.J.’s primary caretaker for the seven months prior to the incident 

at issue, while S.J.’s biological mother, with whom the child generally resided, 

was hospitalized.

4

 See N.T. Dependency H’rg, 8/4/21, at 27-28.

Second, Appellant was aware that S.J. was in circumstances that could

threaten his physical or psychological welfare. See Pahel, 689 A.2d at 964. 

By his own admission, Appellant was not only aware that the caretaker,

Patrick, barricaded S.J. in his bedroom, Appellant had instructed him to do so. 

See N.T., Trial, at 44, 56, 70-71. Further, the conditions of the room in which

____________________________________________

3 The transcript from the dependency hearing was marked and admitted as 

Commonwealth Exhibit 19 at Appellant’s trial. See N.T., Trial, at 5, 80.

4 Appellant and S.J.’s mother were not together, and he explained that his 

“actual wife doesn’t want to deal with” S.J. See N.T., Dependency H’rg, at 

26.
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S.J. resided were unsanitary, if not deplorable. The child slept on a “heavily”

stained and soiled mattress and box spring, with no sheets, and only a

blanket. See id. at 46. The room was dirty and smelled “strongly of human

feces and urine.” Id. at 45. The only window was “completed boarded over”

so there was no “airflow” and, in July, the room was “extremely warm.” Id.

at 46. Moreover, when Case Manager Perez first entered S.J.’s room, S.J. was

wearing “just a T-shirt and nothing from the waist down.” Id. at 15. 

C.I. Santoro testified that when he “confronted [Appellant] with the

conditions of the home and the barricading[,]” Appellant admitted he knew of

“those conditions” and was “the one who actually directed the caretaker [how]

to care” for S.J. N.T., Trial, at 75-76. Further, Case Manager Perez testified

that Appellant was aware of the “physical conditions of the home and the

bedroom of the child[,]” because he was present during prior visits when they

discussed those conditions. Id. at 37, 39. She explained that although her

team considered consulting with “other agencies[, Appellant] did not want to

put any services in place for assistance that he had to be in the home for.” 

Id. at 40. 

Third, Appellant failed to act to protect S.J.’s welfare. See Pahel, 689 

A.2d at 964. As explained above, Appellant was aware of the deplorable 

conditions in the home where his child was residing, and, in fact, directed 
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S.J.’s caretaker to barricade him in the room.5 See N.T., Trial, at 44, 56, 70-

71. Emergency Duty Caseworker Frey testified that when she spoke with

Appellant after taking custody of S.J., she “addressed with him the concerns

and the conditions of the home.” Id. at 56. She noted “[h]e did not seem

surprised by any of it at all[, except] he denie[d] that [S.J.] would be left

without food or water.” Id. Further, as noted above, Case Manager Perez

testified that during previous visits, she and Appellant “discussed” the

conditions of the home as “being problematic[,]” and Appellant “talked about

cleaning it up.” Id. at 40. During the dependency hearing, Case Manager

Perez explained that while she never observed a barricade in front of S.J.’s

room during her prior visits, those visits were all announced ─ the visit on

July 28, 2021, was unannounced. See N.T., Trial, at 10; N.T., Dependency

H’rg, at 15. 

As for Appellant’s claim that the Commonwealth failed to provide expert 

testimony, such testimony is not required. The crime of EWOC does not 

require proof that the child suffered a definitive injury. Rather, the 

Commonwealth must prove the defendant “knowingly endanger[ed] the 

welfare of the child[,]”6 or, in other words, placed the child in circumstances 

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5 With regard to Appellant’s claim that he was unaware his conduct would 

“cause such result[,]” we reiterate that the Commonwealth is only required to 

prove Appellant “knew he was endangering the child’s welfare, not whether 

[he] knew that he would cause any particular result.” See Smith, 956 A.2d 

at 1038. See also Appellant’s pro se Answer to Anders, 9/19/23, at 8.

6 18 Pa.C.S. § 4304(a)(1).
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“that could threaten the child’s physical or psychological welfare.” Pahel, 689 

A.2d at 964. Accordingly, the Commonwealth’s failure to provide expert 

testimony is of no moment, and we conclude the Commonwealth presented

sufficient evidence to support the trial court’s verdict.

The second issue in the Anders brief challenges the weight of the 

evidence supporting Appellant’s conviction. See Anders Brief at 18.

This Court’s standard of review of a weight of the evidence claim is wellsettled:

A weight of the evidence claim concedes that the evidence is 

sufficient to sustain the verdict, but seeks a new trial on the 

ground that the evidence was so one-sided or so weighted in favor 

of acquittal that a guilty verdict shocks one’s sense of justice. On 

review, an appellate court does not substitute its judgment for the 

finder of fact and consider the underlying question of whether the 

verdict is against the weight of the evidence, but, rather, 

determines only whether the trial court abused its discretion in 

making its determination.

Commonwealth v. Lyons, 79 A.3d 1053, 1067 (Pa. 2013) (citations 

omitted).

Here, the trial court found Appellant waived his weight claim. See Trial 

Ct. Op. at 7. We agree. Pennsylvania Rule of Procedure 607 dictates that a 

challenge to the weight of the evidence must be raised with the trial judge 

either:

(1) orally, on the record, at any time before sentencing;

(2) by written motion at any time before sentencing; or

(3) in a post-sentence motion.
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Pa.R.Crim.P. 607(A)(1)-(3). “An appellant’s failure to avail himself of any of 

the prescribed methods for presenting a weight of the evidence issue to the 

trial court constitutes waiver of that claim.” Commonwealth v. Cox, 231 A.3d 

1011, 1018 (Pa. Super. 2020). See also Pa.R.Crim.P. 607, Cmt. (“The 

purpose of this rule is to make it clear that a challenge to the weight of the 

evidence must be raised with the trial judge or it will be waived.”). Because 

Appellant did not advance a weight claim at sentencing or in a post-sentence 

motion, his challenge on appeal is waived for our review.

Next, we address three additional claims Appellant presented in his pro 

se answer and supplemental response to the Anders brief: (1) Appellant’s 

trial and appellate counsel provided ineffective assistance; (2) the parental 

justification defense7 excused his actions; and (3) the Commonwealth failed 

to demonstrate that he engaged in “a course of conduct” to support the 

grading of his offense as a third-degree felony. See Appellant’s pro se Answer 

to Anders at 2-5, 9-10; Appellant’s pro se Supplemental Response Regarding 

Anders Brief, 11/1/23, at 1-2 (unpaginated).

First, Appellant alleges that both trial counsel (Attorney Chwiecko) and 

appellate counsel (Attorney Bispels) rendered ineffective assistance. 

Specifically, he contends trial counsel was ineffective for failing to object to or 

challenge the sufficiency of the Commonwealth’s evidence supporting his 

conviction and for failing to file a post-sentence motion, and faults appellate 

____________________________________________

7 18 Pa.C.S. § 509(1).
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counsel for failing to request permission to file a post-sentence motion nunc 

pro tunc after entering his appearance. See Appellant’s pro se Answer to 

Anders at 2-5, 10; Appellant’s pro se Supplemental Response Regarding 

Anders Brief at 1-2 (unpaginated).

“[A]s a general rule, a petitioner should wait to raise claims of ineffective 

assistance of trial counsel until collateral review.” Commonwealth v. Grant, 

813 A.2d 726, 738 (Pa. 2002). Our Supreme Court has recognized three

limited exceptions to the general rule: (1) in extraordinary circumstances 

where claims of trial counsel’s ineffectiveness are “apparent from the record 

and meritorious to the extent that immediate consideration best serves the 

interests of justice;”

8 (2) where there is good cause shown and unitary review 

of the claim is preceded by a waiver of the right to seek review under the 

Post-Conviction Relief Act (PCRA);

9 and (3) “where the defendant is statutorily 

precluded from obtaining subsequent PCRA review[,]” such as, when a 

defendant receives a short sentence or a fine for their crimes.

10

 

None of these exceptions apply to the facts before us. Appellant’s claims

are not apparent from the record and meritorious, Appellant has not waived

his right to PCRA review, and the sentence imposed by the trial court does not

statutorily prohibit him from seeking PCRA review. See Holmes, 79 A.3d at

____________________________________________

8 See Commonwealth v. Holmes, 79 A.3d 562, 563 (Pa. 2013).

9 See Holmes, 79 A.3d at 564; see also 42 Pa.C.S. §§ 9541-9545.

10 See Commonwealth v. Delgros, 183 A.3d 352, 361 (Pa. 2018).
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563-64; Delgros, 193 A.3d at 361. See also 42 Pa.C.S. § 9543(a)(1)(i) (to

be eligible for PCRA relief, the petitioner must "plead and prove by a

preponderance of the evidence [they have] been convicted of a crime under

the laws of this Commonwealth and is at the time relief is granted . . . currently

serving a sentence of imprisonment, probation or parole for the

crime"). Accordingly, we decline to entertain the ineffectiveness claims on 

direct appeal and dismiss them without prejudice for Appellant to raise the 

claims on collateral review.

Next, we address Appellant’s contention that his actions are excused by 

the parental justification affirmative defense “because [S.J.] used to escape 

several times over the years and [Appellant] acted to safeguard [him].” See

Appellant’s pro se Answer to Anders at 9–10.

The parental justification defense may be raised to excuse “conduct that 

is otherwise criminal, but which under the circumstances is socially acceptable 

and which deserves neither criminal liability nor even censure.’” 

Commonwealth v. Yachimowski, 232 A.3d 861, 866 (Pa. Super. 2020) 

(emphasis & citations omitted). As set forth in the Crimes Code, the parental 

justification defense requires proof of the following elements:

1) the actor use[d] “force upon or toward the person of another;” 

2) the actor “is the parent or guardian or other person similarly 

responsible for the general care and supervision of a minor or a 

person acting at the request of such parent, guardian or other 

responsible person;” 3) “the force is used for the purpose of 

safeguarding or promoting the welfare of the minor, including the 

preventing or punishment of his misconduct;” and, 4) “the force 

used is not designed to cause or known to create a substantial risk 
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of causing death, serious bodily injury, disfigurement, extreme 

pain or mental distress or gross degradation.”

Id., citing 18 Pa.C.S. § 509(1).

Here, Appellant’s claim that his decision to barricade S.J. in his room 

was necessary “to safeguard” the child because he had escaped from the home 

“several times over the years” does not support the parental justification 

affirmative defense. See Appellant’s pro se Answer to Anders at 9-10. S.J. 

was not simply locked in his room to prevent him from escaping. Rather, the 

testimony established that he was barricaded in the room ─ his doorway was 

blocked by a stove, a table, a chair, two additional doors, and a plank. See

N.T., Trial, at 13. Moreover, the condition of the room was filthy, and the only 

window was “completely boarded over” so that no light or airflow could come 

through. See id. at 45-46. When confronted with the unsafe conditions, 

Appellant exhibited no concern for his child. Instead, he was “irate” and 

“blam[ed the caseworkers] for the situation.” Id. at 22. Appellant “was not 

willing to come to [the home] or send a different caregiver.” Id. at 44. It is 

evident that S.J.’s living conditions, particularly the fact he was barricaded in 

his bedroom, created a “substantial risk” of “mental distress or gross 

degradation.” See Yachimowski, 232 A.3d at 866. Compare id. at 863-64

(father was entitled to parental justification jury instruction when evidence 

established parents confined five-year old to her room using baby gates 

screwed into wall so that child did not roam house unattended in middle of 

the night, but that home was “not in disarray[,]” there was a “potty chair” and 
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wipes in child’s room, and parents removed gates when confronted with fire 

safety concern).

Lastly, Appellant challenges the grading of his conviction as a thirddegree felony. See Appellant’s pro se Answer to Anders at 9. The offense 

of EWOC is generally graded as a first-degree misdemeanor. See 18 Pa.C.S. 

§ 4304(b)(i). However, if “the actor engaged in a course of conduct of 

endangering the welfare of a child[,]” the offense may be graded as a thirddegree felony. See 18 Pa.C.S. § 4304(b)(ii) (emphasis added). “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).

In support of his claim, Appellant argues that “[e]ven [Case Manager

Perez] stated that [the date of the incident] was the first time she saw such 

thing[s]” since she started working with them four months prior. See 

Appellant’s pro se Answer to Anders at 9 (emphasis added).

We find this argument without merit. Here, it was evident that Appellant

“engaged in a course of conduct” consisting of “multiple endangering acts”

over an extended period. See Kelly, 102 A.3d at 1031. While Case Manager 

Perez acknowledged that the first time she observed S.J.’s door barricaded 

was during her visit on July 28, 2021, she also explained that was her first 

unannounced visit. See N.T., Dependency H’rg, at 15. However, as noted

above, she also testified that during prior visits, she and Appellant “discussed”
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the conditions of the home as “being problematic[,]” and Appellant “talked

about cleaning it up.” N.T., Trial, at 40. See also N.T., Dependency H’rg, at

15 (Case Manager Perez stating “I was always concerned of the quality of the

home and [S.J.’s] quality of life”). However, Appellant was unwilling “to put 

any services in place for assistance that he had to be in the home for.” See

N.T., Trial, at 40. Thus, we conclude the Commonwealth presented sufficient 

evidence for the trial court to determine Appellant engaged in a “course of 

conduct” of endangering the welfare of his child to support the grading of the 

offense as a third-degree felony.11 See Commonwealth v. Barkman, 295 

A.3d 721, 735-36 (Pa. Super. 2023) (determining “confluence of 

circumstances strongly suggested an ongoing pattern of neglect, not merely 

a momentary state of affairs[,]” to support grading of EWOC as third-degree 

felony when if it could be “reasonably inferred” that “unsanitary and 

deplorable conditions” in home “developed over a period of days, weeks or 

months”).

Consequently, we agree with Attorney Bispels’ determination that the 

appeal is frivolous, and the pro se claims raised by Appellant warrant no relief. 

Moreover, our independent review of the record reveals no non-frivolous 

issues to be raised on appeal. See Yorgey, 188 A.3d at 1196. Therefore, we 

____________________________________________

11 We note, too, that Appellant was charged with the crime as a third-degree 

felony, and the Commonwealth explicitly argued that Appellant engaged in a 

“course of conduct” in its closing before the court entered its verdict. See 

Criminal Information, 12/16/21; N.T., Trial, at 83-84.
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affirm the judgment of sentence and grant Attorney Bispels’ petition to 

withdraw.

Judgment of sentence affirmed. Petition to withdraw as counsel 

granted.

Judgment Entered.

Benjamin D. Kohler, Esq.

Prothonotary

Date: 12/18/2023