Com. v. Moyer, J. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JEFFREY MICHAEL MOYER :
:
Appellant : No. 204 MDA 2020
Appeal from the Judgment of Sentence Entered January 15, 2020,
in the Court of Common Pleas of Lebanon County,
Criminal Division at No(s): CP-38-CR-0001274-2018.
BEFORE: KUNSELMAN, J., McLAUGHLIN, J., and STEVENS, P.J.E.*
MEMORANDUM BY KUNSELMAN, J.: FILED DECEMBER 01, 2020
In this matter, Jeffrey Michael Moyer appeals from the judgment of
sentence imposed after a jury convicted him of strangulation1, endangering
the welfare of a child2, and simple assault3. Moyer argues each conviction
lacked sufficient evidence, or in the alternative, that his actions were legally
justifiable, because they constituted parental discipline under 18 Pa.C.S.A. §
509(1). After review, we affirm.
The three convictions stem from a singular incident, which occurred on
the evening of July 31, 2018. According to Moyer, he and his eight-year-old
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* Former Justice specially assigned to the Superior Court.
1 18 Pa.C.S.A. § 2718(a)(1)
2 18 Pa.C.S.A. § 4304(a)(1)
3 18 Pa.C.S.A. § 2701(a)(1)
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son, B.M., were watching television with Moyer’s paramour4, Rebecca (B.M.’s
stepmother), B.M.’s step-sister J.H., and his half-siblings C. and K. Moyer
claimed B.M. misbehaved by holding a plastic baseball bat between his legs
to imitate his genitalia, and then repeatedly poked his step-sister in the
buttocks with the bat, despite her repeated demands that he stop. See N.T.,
8/27/19, at 101. According to Moyer, because B.M. had previously acted out
in a sexual manner, on this night Moyer decided to impose physical discipline.
Id. at 95-97; see also Exhibits 6-7.
Moyer testified that he physically moved B.M. to another part of the
sectional couch, grabbed hold of B.M.’s chin and jaw to raise the child’s face
to make eye contact, and then asked how many times he must be asked to
stop doing something before he complied. Id. at 101-103. B.M. talked back,
saying it would take “a lot” of times. Id. at 103. Moyer then carried B.M. by
the arm and leg over the baby gate and out of the room. Moyer testified that
he gave his son a light kick on his buttocks with the side of his foot and sent
B.M. to his room. Id. at 105-106. Rebecca’s testimony about the altercation
corresponded with Moyer’s. Later that evening, B.M. returned to the custody
of his mother, Kelly Cole, as part of the normal custody exchange. This was
not the version of events the jury believed.
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4 On a tangential note, we observe an ambiguity within the record. The
transcript lists Rebecca’s last name as “Boyer,” while Moyer’s Brief refers to
Rebecca as his spouse. Moyer and Rebecca have two children together, C.
and K.
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According to other testimony, when Moyer dropped B.M. off at Ms. Cole’s
home, Ms. Cole immediately noticed a red mark on B.M.’s neck and questioned
Moyer. Moyer told her he had “gripped him up.” Id. at 36. After Moyer left,
Ms. Cole took B.M. into her kitchen to show her husband. She took pictures
of B.M.’s injury and asked the child what transpired. See Exhibit 1A-H.
B.M. told her that Moyer grabbed him by his neck – first by one hand,
then by two – and moved him to the other end of the couch. He also told her
that Moyer threw him over the baby gate and kicked him in the head and
neck, and that he also hit his head off of a door. Id. at 39. B.M. told Ms. Cole
that he could not breathe while Moyer had his hands around B.M.’s throat.
B.M. also said that he tried to answer Moyer’s questions (“Do you listen?”)
during the incident, but he could not physically respond because he could not
breathe. Id. at 39-40. Ms. Cole called the authorities that same night, and
Pennsylvania State Police Trooper Manuel Cabrera responded.
Trooper Cabrera immediately saw the injuries to B.M.’s neck and jaw.
Id. at 72. Trooper Cabrera testified that B.M. said Moyer grabbed him by the
throat, and lifted him off the ground until he could not breathe. Id. at 73.
B.M. said he could not breathe for about 15 seconds. Id. After meeting with
B.M. and Ms. Cole, Trooper Cabrera went to Moyer’s residence to interview
him. Moyer told Trooper Cabrera that he disciplined B.M., but denied that he
injured B.M. Moyer also told Trooper Cabrera that B.M. frequently makes
things up.
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Trooper Cabrera also spoke with Rebecca. Trooper Cabrera testified
that, although Rebecca said that she was not present during the incident, she
claimed B.M. was lying. Id. at 84. This testimony comported with B.M.’s
testimony, who also testified Rebecca was not present during the incident.
The next day Trooper Cabrera met with B.M. and Ms. Cole at the police
station, where he noticed that the bruising appeared more pronounced. Id. at
74. Trooper Cabrera also observed that on the left side of B.M.’s face there
were pinpoint marks, red marks along his cheek area that were consistent
with broken blood vessels. He took more photographs, which depicted how
the injury presented over the course of 24 hours. See Exhibit 2. Ms. Cole
also took B.M. to the emergency room the day after the incident occurred.
B.M. was seen by physician’s assistant Linda Wenger, who did not recommend
further treatment.
Moyer was charged with strangulation, endangering the welfare of a
child, and simple assault. Following a jury trial on August 27, 2019, Moyer
was convicted of all three offenses. On January 15, 2020, the court sentenced
Moyer to an aggregate term of incarceration of 12 months to 5 years. Moyer
timely appealed and presents three issues for our review:
1. Whether there was sufficient evidence presented at
trial to enable the fact-finder to find each element
necessary for conviction for the charge of
Strangulation under 18 Pa.C.S.A. § 2718(a)(1) since
the evidence presented at trial was insufficient to
establish that the appellant knowingly or intentionally
impeded the breathing or circulation of the blood of
the alleged victim by applying pressure to the throat
or neck, as required to sustain conviction of the
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offense, where the offense occurred within the
boundaries of parental discipline of appellant’s child?
2. Whether there was sufficient evidence presented at
trial to enable the fact-finder to find each element
necessary for conviction for the charge of Endangering
the Welfare of a Child under 18 Pa.C.S.A. § [4304]
(a)(1) since the evidence presented at trial was
insufficient to establish that the appellant knowingly
endangered the welfare of a child by violating a duty
of care, protection, or support as required to sustain
a conviction of the offense, where the offense
occurred within the boundaries of parental discipline
of appellant’s child?
3. Whether there was sufficient evidence presented at
trial to enable the fact-finder to find each element
necessary for conviction for the charge of Simple
Assault under 18 Pa.C.S.A. § 2701(a)(1) since the
evidence presented at trial was insufficient to
establish that the appellant attempted to cause, or
intentionally, knowingly, or recklessly caused bodily
injury to another as required to sustain a conviction of
the offense, where the offense occurred within the
boundaries of parental discipline of appellant’s child?
Moyer’s Brief at 4-5.
Moyer’s three appellate issues correspond to each of his convictions.
For all the issues, Moyer presents a hybrid argument. In essence, Moyer
contends first that the evidence was insufficient to prove that he committed
the respective offense. Alternatively, he claims even if his conduct was
otherwise criminal, he is entitled to the parental justification defense to escape
criminal liability, pursuant to 18 Pa.C.S.A.§ 509(1). See Moyer’s Brief at 12-
27. “Where applicable, the parental justification defense ‘defines conduct
that is otherwise criminal, but which under the circumstances is socially
acceptable and which deserves neither criminal liability nor even censure.’”
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Commonwealth v. Yachimowski, 232 A.3d 861, 866 (Pa. Super. 2020)
(citing Wayne R. LaFave, 2 SUBSTANTIVE CRIMINAL LAW § 9.1(a)(3) (3d ed.)
(further quotations and citations omitted) (emphasis added).
I.
For ease of disposition, we first determine whether the Commonwealth
presented sufficient evidence to convict Moyer for each of his three offenses.
In reviewing sufficiency challenges, we have said:
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 our 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 defendant's
crimes beyond a reasonable doubt, the appellant's
convictions will be upheld.
Commonwealth v. Franklin, 69 A.3d 719, 722-23 (Pa. Super.
2013) (internal quotations and citations omitted). Importantly, “the jury,
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which passes upon the weight and credibility of each witness's testimony, is
free to believe all, part, or none of the evidence.” Commonwealth v.
Ramtahal, 613 Pa. 316, 33 A.3d 602, 607 (2011).
We begin with Moyer’s first conviction, strangulation. The offense of
strangulation is defined as follows:
(a) Offense defined.--A person commits the offense of
strangulation if the person knowingly or intentionally
impedes the breathing or circulation of the blood of
another person by:
(1) applying pressure to the throat or neck
18 Pa.C.S.A. § 2718(a).
Moreover, “[i]nfliction of a physical injury to a victim shall not be an
element of the offense. The lack of physical injury to a victim shall not be a
defense in a prosecution under this section.” 18 Pa.C.S.A. § 2718(b). Still, a
person is not guilty of this offense unless he acted intentionally or knowingly
with respect to each material element of the offense. See 18 Pa.C.S.A. § 302
(minimum requirements of culpability).
Section 302(b) provides:
(1) A person acts intentionally with respect to a material
element of an offense when:
(i) if the element involves the nature of his conduct or
a result thereof, it is his conscious object to engage in
conduct of that nature or to cause such a result; and
(ii) if the element involves the attendant
circumstances, he is aware of the existence of such
circumstances or he believes or hopes that they exist.
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(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.
18 Pa.C.S.A. § 302(b)
Moyer argues:
If [B.M.’s] breathing was in fact impeded within [the]
meaning of the statute, the degree of impediment was still
minimal. Against that backdrop, it cannot be said that the
occurrence of such a minimal impediment, alone, evidences
Moyer’s conscious object to cause that effect or his
appreciation that such an effect was certain to happen.
Moyer’s Brief at 19. Moyer reasons that there were “no additional factors, like
concomitant statements, which prove intentional or knowing conduct designed
to impede the child’s breathing.” Id.
Moyer premises his argument on his trial testimony that he merely took
B.M.’s jaw, and held it up so he could look B.M. in the eye. See id. at 16.
Moyer argues further that B.M. “did not sustain any injuries consistent with
suffering forceful punishment from his father.” Id. However, the record belies
Moyer’s depiction of events.
Here, B.M. testified that Moyer strangled him by grabbing his throat with
both hands with such force that he could not breathe. B.M. tried to answer
Moyer’s questions (“Do you listen?”) but was physically unable to respond.
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See N.T. at 19-20. Afterward, B.M.’s mother, Ms. Cole, immediately observed
– and photographed – the physical manifestations of Moyer’s force. So did
Trooper Cabrera, who noted that the bruising was even more pronounced the
following day, and that on the left side of B.M.’s face, there were pinpoint red
marks that were consistent with broken blood vessels. Exhibits 1A-H and 2
bear this out. B.M. said his throat felt like it had holes in it, and that it caused
him physical pain for weeks. Id. at 22.
In fact, the jury explicitly found Moyer caused bodily injury, even though
such a finding was not necessary to convict Moyer. See 18 Pa.C.S.A. §
2718(b), supra. In rendering these findings, the jury was free to believe all,
part, or not of the witnesses’ testimony. See Ramtahal, supra. On appeal,
we view this evidence and testimony in a light most favorable to the
Commonwealth. See Franklin, supra. Thus, for us to agree with Moyer, we
would have to substitute our judgment for that of the jury’s – a direct
circumvention of our well-established principles. See Franklin, supra.With this factual finding in mind, we cannot accept Moyer’s
characterization that the impediment to B.M.’s breathing was minimal. B.M.
suffered a physical injury that lasted for weeks. Critically, “a minimal
impediment” to one’s breathing is still an impediment. Likewise, we disagree
with Moyer’s argument that a conviction requires “additional factors, like
concomitant statements.” Moyer cites no legal authority for this argument,
and nothing in the statute, or our relevant case law, stands for such a
proposition. Nonetheless, Moyer made concomitant statements during the
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act. After B.M. sarcastically retorted that he would need to be told multiple
times to stop hitting his sister, Moyer grabbed B.M. with both hands around
his throat and asked, “Do you listen?” B.M. attempted to respond but was
physically unable. Moyer acknowledged to Ms. Cole that he “gripped him up.”
As such, the jury was entitled to infer Moyer was aware that the pressure he
applied to B.M.’s throat impeded his breathing. We conclude there was
sufficient evidence to support the strangulation conviction.
Next, Moyer argues there was insufficient evidence that he knowingly
endangered the welfare of the child. See Moyer’s Brief at 20. Our sufficiency
analysis for this offense begins with the statutory definition:
(1) A parent…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.A. § 4304(a)(1) (emphasis added).
Moyer narrows his challenge to the knowledge element. Here, too,
Section 302(b)(2) provides guidance. As applied to this offense, our Court
has explained that “the accused must be ‘aware that the child is in
circumstances that could threaten the child’s physical or psychological
welfare[.]’” See Commonwealth v. Smith, 956 A.2d 1029, 1038 (Pa. Super.
2008) (en banc) (further citation omitted). In other words, the “knowing”
element of the crime applies to whether the defendant generally knew that he
was endangering the child’s welfare, not whether the defendant knew that his
actions would cause any particular result. Id.- 10 -
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On this point, Moyer argues the Commonwealth failed to establish that
he knew disciplining of his son would have the opposite effect and endanger
the child’s welfare. In making such an argument, Moyer conflates sufficiency
of the evidence with the parental justification defense. We address the
parental justification defense in detail below, but it is worth reiterating here
that such a defense recognizes that the conduct in question is otherwise
criminal. See Yachimowski, supra.
As Moyer rightly acknowledges, we employ a “common sense of the
community approach” to interpret this element of the statute:
[W]e find an implicit recognition that parents at times can
make mistakes in judgment and that their children may be
harmed as a result. However, for such mistakes to rise to
the level of criminal culpability, parents must knowingly
allow their children to be at risk with awareness of the
potential consequences of their actions or of their failure to
act.
Commonwealth v. Miller, 600 A.2d 988, 992 (Pa. Super. 1992); see also
Moyer’s Brief at 21.
In Smith we reasoned, “[i]t takes nothing more than common sense for
an adult, let alone an experienced father such as [the appellant], to know that
violently shaking an infant child with enough force to cause an abusive head
trauma could threaten the child’s physical and/or psychological welfare.”
Smith 956 A.2d at 1038-1039 (footnote omitted).
In the case at bar, Moyer squeezed B.M.’s throat with such force that he
left nail marks on the child’s neck and caused broken blood vessels on the
child’s face. Moyer also kicked the child in the head and neck. Afterward,
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B.M. became so fearful of Moyer that he told his mother he thought he would
die if he went back to Moyer’s home. See N.T., 8/27/19, at 46. Like in Smith,
we observe “it takes nothing more than common sense” for Moyer to know
that his conduct could threaten the child’s physical and/or psychological
welfare. We conclude that the jury could find Moyer’s actions to be beyond
the “common sense of the community,” thereby satisfying the knowledge
element. Thus, we conclude there was sufficient evidence for the jury to
convict Moyer of endangering the welfare of the child.
Finally, Moyer contests the sufficiency of evidence for his simple assault
conviction. That offense is defined as follows:
(a) Offense defined.—[…] a person is guilty of assault if
he:
(1) attempts to cause or intentionally, knowingly or
recklessly causes bodily injury to another[.]
18 Pa.C.S.A. § 2701(a)(1).
We initially observe that the jury found that bodily injury was actually
caused. Inexplicably, Moyer only contends that “[n]o evidence was introduced
to show that…that in fact bodily injury resulted.” See Moyer’s Brief at 25. We
need not rehash the various evidence and testimony supporting the jury’s
findings, nor the well-established body of law that forbids us from substituting
our judgment for that of the jury’s. It suffices to say there was sufficient
evidence to support this conviction as well.
II.
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Having concluded sufficient evidence supports all three of Moyer’s
convictions, we turn now to the most fervent aspect of Moyer’s appeal –
whether the parental justification defense renders Moyer’s actions statutorily
excusable.
As Moyer correctly notes, Pennsylvania has long acknowledged that
parents have a privilege to subject their children to corporal punishment when
the children misbehave. See Commonwealth v. Ogin, 540 A.2d 549, 554
(Pa. Super. 1988). Our Legislature codified this privilege as a parental
justification defense at 18 Pa.C.S.A. § 509(1). Recently, this Court reiterated
the purpose of this statute.
The parental justification defense found in Section
509(1) attempts to balance competing interests.
Commonwealth v. Ogin, 540 A.2d 549, 554 (Pa. Super.
1988). On the one hand, Section 509(1) furthers the
“primary role of parents in preparing children to assume the
obligations and responsibilities of adults” and society's
“need to ensure that the state through its criminal justice
system does not unduly interfere with the private realm of
family life.” Id. However, balanced against those interests
is the state's “powerful interest in preventing and deterring
the battering of children.” Id.Yachimowski, 232 A.3d at 866.
Section 509(1) provides:
The use of force upon or toward the person of another is
justifiable if:
(1) 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 and:
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(i) 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
(ii) the force used is not designed to cause or
known to create a substantial risk of causing
death, serious bodily injury, disfigurement,
extreme pain or mental distress or gross
degradation.
18 Pa.C.S.A. § 509(1) (emphasis added).
The parental justification defense is a three-prong inquiry, which probes
(1) the legal relationship of the actors, (2) the purpose of the force, and (3)
the degree and nature of the force used. Here, it is self-evident Moyer
satisfies the first two prongs of this analysis: Moyer, as a parent of the minor
B.M., is a legally qualified actor; and no one disputes that the force Moyer
used was for the punishment of B.M.’s misconduct, nor that B.M.’s
misbehavior had been an ongoing issue. Only the third prong is in question.
Thus, whether Moyer’s force was justifiable depends upon the nature and
degree of that force.
Moyer cites three cases where the force used was deemed unjustifiable
and attempts to distinguish them from his case. In Ogin, supra, this Court
concluded that appellant’s discipline was not justifiable, after a 17-month old
baby was “flung…like a rag doll” against an outside wall of an apartment
building, backhanded in the face, and had a plate of hot food shoved in her
face when she would not eat her dinner. See Ogin, 540 A.2d at 551. In
Commonwealth v. Douglass, 588 A.2d 52, 55-56 (Pa. Super. 1991), this
Court similarly ruled that a teacher was not justified in his use of corporal
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punishment after paddling a first-grader between 50 and 60 times. In
Commonwealth v. Tullius, 582 A.2d 1, 2 (Pa. Super. 1990) a teacher
shoved a backtalking sixth-grader against a locker, causing the child to have
bruises on his arms, ear, back and neck; we concluded the discipline was not
justified.5
Here, Moyer contends “[B.M.] did not sustain any injuries consistent
with suffering forceful punishment from his father,” and the “only injuries
sustained were faint bruising and minor scratches[.]” See Moyer’s Brief at 16.
Moyer concludes that the evidence lacks any showing of extreme pain, mental
distress or gross degradation. See id. at 25. In other words, Moyer’s only
argument is he inflicted a minimal degree of force. This argument presumes
that he did not actually injure B.M., despite the jury’s finding to the contrary
– a finding firmly supported by the record, and thus a finding we must view in
a light most favorable to the Commonwealth.
Significantly, the analysis does not hinge on the degree of force used.
Section 509(1)(ii) examines whether the force used is either “designed to
cause or known to create a substantial risk of causing death, serious bodily
injury, disfigurement, extreme pain or mental distress or gross degradation.”
18 Pa.C.S.A. § 509(1)(ii) (emphasis added). Therefore, we examine the
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5Although Douglass and Tullius implicate Section 509(2) because the actors
were teachers, these cases are still relevant to our analysis of the third prong.
The criteria to determine whether the degree of force was justifiable is the
same for teachers as it is for parents. See 18 Pa.C.S.A. § 509(2)(ii) (“the
degree of force, if it had been used by the parent…would not be unjustifiable
under paragraph (1)(ii)”).
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nature of Moyer’s force – that is, strangulation – to determine whether such
force was designed to cause, or known to create, inter alia, a substantial risk
of death.
In our review, we are faced with a dearth of case law pertaining to both
strangulation under 18 Pa.C.S.A. § 2718(a)(1), as well as the parental
justification defense’s “substantial risk of death” provision under 18 Pa.C.S.A.
§ 509.6 But we are not without guidance.
Unlawful corporal discipline is a form of domestic violence. See, e.g.,
The Protection From Abuse Act, 23 Pa.C.S.A. § 6102(a).7 While domestic
violence generally refers to violence between family members, it is most often
understood as violence between paramours. Within this realm, strangulation
is “known unequivocally” as one of the most lethal forms of domestic violence,
and it is “one of the best predictors for subsequent homicide of victims of
domestic violence.” G. Strack & C. Gwinn, On the Edge of Homicide:
Strangulation as a Prelude, 26 FALL CRIM JUST 32, 33-34 (2011).8
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6
Although this Court recently decided Yachimowski, supra, the appeal did
not involve strangulation.
7“The provisions of 23 Pa.C.S. Ch. 61 (relating to protection from abuse) are
necessary and proper in that they further the Commonwealth’s compelling
State interest to protect victims of domestic violence from abuse.” Historical
and Statutory Notes, Act 2005-66 legislation, at 1. The Protection From Abuse
Act defines “abuse” as “[t]he occurrence of one or more [qualifying] acts
between family or household members, sexual or intimate partners or persons
who share biological parenthood[.]” 23 Pa.C.S.A. § 6102(a).
8Strack and Gwinn define “strangulation” as the “external compression of the
neck [that] can impede oxygen transport by preventing blood flow to or from
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The major findings are now common knowledge:
 most strangulation cases produce minor or no
visible injury;
 many victims, however, suffer internal injuries and
have documentable symptoms;
 most abusers do not strangle to kill – they strangle
to show they can kill; [and]
 victims often suffer major long-term emotional and
physical impacts[.]
Id. (Formatting and emphasis original) (some findings omitted).9
Of course, this study revealed strangulation to be a predictor of
subsequent homicides in cases involving paramours – in fact, the study
indicated that victims of prior attempted strangulation were seven times more
likely to become homicide victims. See id. We are careful not to extrapolate
this prediction to our case involving a parent and child. Our only focus is on
the physical act itself, and whether it was “designed to cause,” or “known to
create,” a substantial risk of causing death. We conclude that it was.
Unquestionably, the degree and nature of force Moyer employed when he
compressed B.M.’s neck was far beyond the justifiable use of parental
discipline.
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the brain or direct airway compression.” Id. This definition comports with
what happened in this case, as well as Pennsylvania’s legal definition of the
offense. See 18 Pa.C.S.A. § 2718(a)(1) (“A person commits the offense of
strangulation if the person knowingly or intentionally impedes the breathing
or circulation of the blood of another person by: (1) applying pressure to the
throat or neck.”).
9
These findings were also published in the Journal of Emergency Medicine
as “Review of 300 Attempted Strangulation Cases” (2001). See id.
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First, we disagree with Moyer that B.M.’s injury was minimal, as the
testimony and properly admitted photographs illustrate otherwise. Moyer
employed such force that the child’s blood vessels ruptured, leaving marks.
He left fingernail indentations in the child’s neck. Linda Wenger, the
physician’s assistant who treated B.M in the emergency room, testified that
the cuts on B.M.’s neck were “consistent with fingernail scratches” and the
bruises on his neck were “consistent with pressure of fingers[;] [t]hey lined
up correctly for finger placement.” See N.T. at 66. B.M. testified that the
bruising and pain lasted for weeks.
Moreover, even minor injuries, when they occur as a result of a
strangulation, are indicative of a substantial risk of death. “Victims may have
no visible injuries, yet because of underlying brain damage due to the lack of
oxygen during the strangulation assault, they may have serious internal
injuries or they may the days – even weeks – later.” G. Strack & C. Gwinn, 26
FALL CRIM JUST at 34-45. Thankfully, there was no evidence of underlying
brain damage in this case, but again, we focus on the risk created by the act,
not the physical result.
Contrary to Moyer’s argument, we are not bound by whether physical
injury occurred. After all, the gravity of a strangulation, with or without injury,
is made apparent by our Criminal Code’s explicit proclamation: “Infliction of a
physical injury to a victim shall not be an element of [strangulation; and t]he
lack of physical injury to a victim shall not be a defense in a prosecution under
this section.” See 18 Pa.C.S.A. § 2718(b). In concluding that Moyer’s conduct
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was both designed to cause and known to create a “substantial risk of death,”
we need not address whether the facts of this case satisfied the other
definitions of unjustifiable force, (i.e., “mental distress,” “extreme pain,” etc.).
We note, however, that B.M. testified that he consequently feared for his life,
and that he suffered pain that lasted for weeks.10
In sum, we conclude the Commonwealth presented sufficient evidence
to allow a jury to convict Moyer for strangulation, endangering the welfare of
a child, and simple assault. Furthermore, we conclude Moyer’s use of force
was both designed to cause, and known to create, a substantial risk of death,
pursuant to Section 509(1)(ii); consequently, Moyer was not entitled to the
parental justification defense.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/1/2020
____________________________________________
10
We also note a conclusion of Strack and Gwinn: “Strangulation is a form of
power and control that can have a devastating psychological effect on victims
in addition to the potentially fatal outcome, which includes the victim
committing suicide.” G. Strack & C. Gwinn, 26 FALL CRIM JUST at 35.
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