Com. v. Virgile, J. ( 2017 )

J-S20005-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
JASON VIRGILE
Appellant No. 2523 EDA 2015
Appeal from the Judgment of Sentence July 31, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0000982-2012
BEFORE: BOWES, J., OTT, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY BOWES, J.: FILED MAY 22, 2017
Jason Virgile appeals from the judgment of sentence of eleven-and-
one-half to twenty-three months imprisonment followed by three years
probation that was imposed after a jury convicted him of endangering the
welfare of a child (“EWOC”). We reject his challenges to the sufficiency of
the evidence supporting his conviction and affirm.
Appellant and his co-defendant Leeann Santiago were convicted of
endangering the welfare of Santiago’s son by a previous relationship, I.V. At
the time of the pertinent events, I.V. was living with his sister, Appellant,
and Santiago. Appellant’s two sons, who were one year old and four years
old, respectively, came twice a month to stay at the home.
J-S20005-17
The Commonwealth’s proof was as follows. Aracely Thornton,
Santiago’s mother, testified that on May 2, 2011, she was babysitting the
then two-year-old I.V. at her home in Philadelphia. She noticed bruises on
his face between his forehead and his nose and on the front and back of his
ear. Since the bruising “was in multiple areas,” Ms. Thornton became
alarmed. N.T. Trial, 5/26/15, at 81. She went to the police station to report
the injuries, and, when Santiago retrieved I.V., Ms. Thornton discussed the
injuries with her. Santiago asked I.V. who inflicted the wounds, and he
responded, “Jason did it.” Id. at 105, 106. Ms. Thornton testified that I.V.
referred to Appellant as Jason and that there was no one else involved in
I.V.’s life, other than Appellant, whose name was Jason. Id. at 107.
Santiago took I.V. to the hospital, where he was x-rayed, and called
his biological father, Valerie V., who went to the emergency room and
observed bruises on I.V.’s head and ear area. Prior to May 2, 2011, Valerie
had never observed those types of injuries on his son’s face. Valerie asked
I.V. how he was hurt, but never received a “clear response.” Id. at 199.
The next time that Valerie was called to the hospital for I.V. was October 25,
2011. At that time, I.V.’s injuries were much more extensive. Specifically,
the boy’s harm included: a laceration on the top of his head that required
staples, “bruises on the both sides of his head near his ears,” a “mark, like a
patch on his stomach, miscellaneous marks on his thighs, an open sore on
-2-
J-S20005-17
his leg,” and also a rib fracture. N.T. Trial, 2/27/15, at 51. I.V. again
refused to tell his father how he sustained the wounds.
Due to the nature of I.V.’s harm, on October 25, 2011, hospital
personnel immediately suspected that I.V. was the victim of child abuse and
called police. Philadelphia Detective Manuel Gonzalez of the Special Victims
Child Abuse Unit responded. At the hospital, Detective Gonzalez asked
Santiago what had happened, and she replied that I.V. hit a glass table with
his head. On October 25, 2011, I.V. was removed from the care of
Appellant and Santiago and taken to Ms. Thornton’s home. On November 4,
2011, Detective Gonzalez interviewed Santiago about the matter.
Santiago again represented that I.V. hit his head on a glass table while
he was playing with his sister and Appellant’s two sons, but Santiago was
unable to explain how I.V. incurred the remainder of his wounds. She
informed Detective Gonzalez that I.V. never came home from his day care
center with injuries and stated that she took care of her two children when
they were at home. On November 4, 2011, Philadelphia Detective Edward
Enriquez interviewed Appellant, who indicated that he did not know how I.V.
was hurt.
Melissa Hampton, who worked in Child Protective Services at the
Philadelphia Department of Human Services, was assigned to investigate the
matter. On October 26, 2011, she went to see I.V. at Ms. Thornton’s home.
Ms. Hampton interviewed the child and asked how he had sustained his
-3-
J-S20005-17
wounds. Initially, I.V. merely shrugged. When asked about the head
laceration, “he said mom did it.” N.T. Trial, 5/26/15, at 53. Ms. Hampton
next interviewed Appellant and Santiago. Santiago repeated that I.V.
sustained the head injury by hitting “his head on the table” in the dining
room while he was playing with the three other children in her home and
while Santiago was cooking in the kitchen. Id. at 55. Santiago also
represented that his facial bruising occurred when “she was pulling a T-shirt
down over his head.” Id. at 56. She indicated that she did not know how
the leg sore was caused but said that it must have been from a fall.
Santiago maintained that the mark on his stomach was a result of the boy
scratching himself with a toy. At the time, Santiago appeared “somewhat
angry, defensive and somewhat nonchalant about the child’s injuries.” Id.
at 57.
When Ms. Hampton discussed the matter with Appellant, he told her
that I.V. was injured while he was retrieving his children from their mother’s
home. Appellant represented that, when he returned with his two boys,
Santiago “ran up to him to tell him or show him [I.V.’s] injury, and that he
told her to take the child to the hospital.” Id. at 59. Ms. Hampton noted
the discrepancy in Santiago’s and Appellant’s versions of events in that
Santiago said that Appellant’s two children were present when I.V. lacerated
his head while Appellant stated that the injury in question occurred while he
was retrieving his children from their mother’s home.
-4-
J-S20005-17
On October 28, 2011, there was a hearing to determine if I.V. and his
sister should remain in protective care, and Appellant told Ms. Hampton that
he and Santiago were the only adults with “access to [I.V.] in reference to
his injuries.” Id. at 65.
Doctor Maria McColgan testified as an expert medical witness on behalf
of the Commonwealth. She saw pictures taken by emergency room
physicians of the injuries that I.V. sustained on May 2, 2011. He had
“bruises to the right side of his forehead, head, his ear, the bridge of his
nose, under his nose, . . . the side of his face, and his cheek.” Id. at 148.
Dr. McColgan testified to a reasonable degree of medical certainty that the
described wounds were “inflicted injuries and not consistent with accidental
injury.” Id. at 149.
Dr. McColgan also reviewed the medical records from the October 25,
2011 incident and stated that I.V. had a laceration to his scalp, a healing rib
fracture, “linear scars on the back of his legs,” and bruising around the ears
on both sides of his face and the back of his head. There was no innocent
explanation for all these injuries, particularly the rib fracture. She explained
that bruising to the ear was not typical in either accidental or self-inflicted
injury and was indicative of child abuse. Dr. McColgan concluded to a
reasonable degree of medical certainty that the multiple wounds suffered by
I.V. on October 25, 2011, was the result of physical abuse. Id. at 154.
-5-
J-S20005-17
Based on this evidence, Appellant and Santiago were convicted of
EWOC. This appeal followed imposition of the above-described judgment of
sentence. Appellant presents one issue for our review: “Did the [jury]
commit error by convicting Appellant of endangering the welfare of a child
where the evidence at trial was insufficient to establish that Appellant
knowingly violated a duty of care to complainant?” Appellant’s brief at 2.
Before we address this issue, we must resolve a procedural problem.
Appellant was ordered to file a Pa.R.A.P. 1925(b) statement but failed to do
so. The trial court concluded that there were no issues preserved for
appellate review. As we outlined in Commonwealth v. Thompson, 39
A.3d 335 (Pa.Super. 2012), in Commonwealth v. Lord, 719 A.2d 306 (Pa.
1998), our Supreme Court held that issues not raised in a court-ordered
Pa.R.A.P. 1925(b) statement are not preserved for review. Accord
Commonwealth v. Castillo, 888 A.2d 775 (Pa. 2005) (affirming Lord and
holding that all issues are waived where a statement is not filed in a timely
manner).
After Lord and Castillo, Pa.R.A.P. 1925(b) was amended, and it now
states that if an appellant “in a criminal case was ordered to file a Statement
and failed to do so, such that the appellate court is convinced that counsel
has been per se ineffective, the appellate court shall remand for the filing of
a Statement nunc pro tunc and for the preparation and filing of an opinion
by the judge.” Pa.R.A.P. 1925(c)(3). As this Court in Thompson observed,
-6-
J-S20005-17
pursuant to this subsection, when a Pa.R.A.P. 1925(b) is not filed or is
untimely filed, counsel will be considered ineffective per se. See
Commonwealth v. Burton, 973 A.2d 428 (Pa.Super. 2009);
Commonwealth v. Scott, 952 A.2d 1190 (Pa.Super. 2008). In such
scenarios, the case will be remanded for the filing of the statement nunc pro
tunc and the preparation of a trial court opinion in response to the
statement. Where the court does have the benefit of reviewing an untimely-
filed statement and writes an opinion, we do not remand. Thompson,
supra. In Thompson, the appellant’s Pa.R.A.P. 1925(b) statement was
untimely, and the trial court did not have it in time to author a response to
the issues raised. We therefore remanded for the trial court to discuss the
issues presented in the untimely statement.
In the present case, Appellant did not file a statement, and the trial
court did not address the question of the sufficiency of the evidence
supporting the EWOC conviction. However, it is established that, “Whether
sufficient evidence exists to support the verdict is a question of law; our
standard of review is de novo and our scope of review is plenary.”
Commonwealth v. Sunealitis, 153 A.3d 414, 419 (Pa.Super. 2016)
(citation omitted). In light of our standard and scope of review, we do not
find it necessary to remand for preparation of a trial court opinion. We can
review the record evidence and decide, as a matter of law, if it was sufficient
to establish that Appellant committed the crime of EWOC.
-7-
J-S20005-17
In addressing the merits of Appellant’s sufficiency challenge, we
observe that:
In reviewing the sufficiency of the evidence, we must determine
whether the evidence admitted at trial, and all reasonable
inferences drawn from that evidence, when viewed in the light
most favorable to the Commonwealth as verdict winner, was
sufficient to enable the fact finder to conclude that the
Commonwealth established all of the elements of the offense
beyond a reasonable doubt. The Commonwealth may sustain its
burden by means of wholly circumstantial evidence. Further, the
trier of fact is free to believe all, part, or none of the evidence.
Commonwealth v. Sunealitis, supra at 419 (citation omitted).
The offense of EWOC is defined, in pertinent part, as follows: "(1) A
parent, guardian or other person supervising the welfare of a child
under 18 years of age . . . 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) (emphases added). In this case, Appellant
challenges that the Commonwealth established the intent element, i.e., that
he knowingly endangered Santiago’s child’s care. He also claims that he did
not have a duty of care toward I.V..
We conclude that intent was established herein. On May 2, 2011, I.V.
sustained multiple bruising on his face and head, and Dr. McColgan testified
that that harm was intentionally inflicted rather than accidentally sustained.
The Commonwealth’s proof also was that I.V. told his grandmother that
Appellant inflicted those wounds. Our Supreme Court has noted that, while
the crime in question is a specific intent crime, the “EWOC statute is
-8-
J-S20005-17
necessarily drawn broadly to capture conduct that endangers the welfare of
a child.” Commonwealth v. Lynn, 114 A.3d 796, 819 (Pa. 2015). EWOC
is committed when an adult takes an affirmative action that endangers a
child by injuring the victim. Commonwealth v. Passarelli, 789 A.2d 708,
716 (Pa.Super. 2001), aff'd per curiam, 825 A.2d 628 (Pa. 2003) (holding
that evidence was sufficient to support EWOC conviction where
Commonwealth presented expert witness who opined that injuries sustained
by child were intentionally inflicted and not the result of an accident). The
Commonwealth’s proof was that Appellant undertook an affirmative action
that endangered I.V.’s welfare by inflicting injuries to his face and the side of
his head on May 2, 2011.
We note that Appellant attempts to deflect our attention from the May
2, 2011 incident by suggesting that this case solely involved the October 25,
2011 injuries. We discount this effort as the Commonwealth’s evidence
clearly pertained to both May 2, 2011, and October 25, 2011. Ms.
Thornton’s testimony solely related to the May 2, 2011 harm, and she
testified that I.V. told her that Appellant had caused the bruising on his face.
The Commonwealth presented specific proof from Dr. McColgan relating to
the May 2, 2011 bruising, and that expert witness reported that the harm in
question was intentionally inflicted. Thus, we conclude that the evidence
was sufficient to establish the intent element of EWOC.
-9-
J-S20005-17
We also reject Appellant’s position that he owed no duty of care to
I.V.. Section 4304 specifically states that anyone who is supervising a
child’s welfare is guilty of the offense. In Lynn, our High Court observed
that a person supervising the welfare of a child is anyone who has a duty to
either care for, protect, or support a child and that definition includes
someone who has been entrusted with the care of a child or exercises a
supervisory role in connection with the child. Appellant was an adult in the
home occupied by I.V. and was involved in his supervision when I.V. was in
that home. Thus, Appellant owed a duty of care to the child within the
meaning of § 4304 where he inflicted the multiple bruises to I.V.’s head and
face on May 2, 2011.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/22/2017
- 10 -