Commonwealth v. Delamarter

302 A.3d 1195

COMMONWEALTH of Pennsylvania v. Kevin Scott DELAMARTER, Appellant

No. 1045 MDA 2022

Superior Court of Pennsylvania.

Submitted March 20, 2023

Filed: September 6, 2023

Karen G. Muir, State College, appellant.

Christopher R. Torquato, District Attorney, Lewistown, for Commonwealth, appellee.

BEFORE: OLSON, J., McCAFFERY, J., and COLINS, J. ^*

OPINION BY COLINS, J.:

Appellant, Kevin Scott Delamarter, appeals from the judgments of sentence entered in the Mifflin County Court of Common Pleas following his jury conviction of endangering the welfare of a child (EWOC), ¹ and his non-jury convictions of driving under the influence of a controlled substance (DUI) ² and two summary offenses. ³ On appeal, Appellant challenges the weight and sufficiency of the evidence supporting his EWOC conviction. ⁴ Upon careful review, we affirm.

The facts underlying this appeal, as presented during Appellant's jury trial, are as follows. On February 15, 2021, Pennsylvania State Trooper Zachary Yetter was on regular patrol in a marked vehicle in Granville Township, Mifflin County, Pennsylvania. See N.T. 5/16/22, 23-24. The day was clear, and the roads were dry. Id. at 26. At approximately 2:30 p.m., Trooper Yetter was traveling northbound on State Route 103 when he "came up behind a line of traffic that was stopped in the middle of the road[.]" Id. Because of a turn in the road, the trooper could not see why traffic was stopped; however, an individual told him that "there [wa]s a crash up ahead." Id.

Trooper Yetter activated his overhead lights and approached the single-vehicle-involved crash scene. N.T. 5/16/22, 27-29. He saw the driver, later identified as Appellant, "opening the door ... and stepping out of the driver's" side of the car. Id. at 28. The car was stopped "in the northbound lane of State Route 103" but was "still in drive." ⁵ See id. at 28-29, 31. Trooper Yetter also observed a "young girl" – later identified as Appellant's three-year-old daughter – standing in the backseat with her feet on the floor and her hands on each of the front seats. Id. at 29-30. Neither Appellant nor his daughter appeared to have any injuries. See id. at 31. The Commonwealth presented no eyewitnesses to the accident, and no testimony regarding how long before the trooper arrived the accident had occurred.

When Trooper Yetter asked what had happened, Appellant responded that he was traveling northbound toward Lewistown when he "looked over to read a text message." N.T. 5/16/22, 32. At the same time, he "bumped off the northbound guide rail[,]" which the trooper noted was on the "passenger side of his car." Id. at 32-33, 42 (emphasis added). Appellant further stated that he then "came to a complete stop." Id. at 33.

During this interaction, Trooper Yetter observed that Appellant "was very slow with his movements, very sluggish[,] had a thick, slurred speech[, a] low mumbling voice[, and] his pupils were constricted[.]" N.T. 5/16/22, 33. The trooper did not smell an odor of alcohol, but asked Appellant if he had consumed any controlled substances. Id. at 35. Appellant responded that "he was consuming Suboxone [,]" which the trooper was aware is "taken for narcotic addiction." Id. at 35-36. There was no testimony, however, concerning the effect, if any, the consumption of Suboxone has on a person's body. Indeed, the trial court ruled that Trooper Yetter did not have sufficient training to "say unequivocally the Suboxone caused the wreck[,]" but the trooper was permitted to testify that "based on [his] experience" that he believed Appellant was impaired by "some type of substance." Id. at 41, 51-52.

Trooper Yetter testified that his observations at the scene suggested Appellant's version of the guide rail collision was not truthful. See N.T. 5/16/22, 42-44. Specifically, he noticed there was "disabling damage to the driver's side of the vehicle[, but] no damage to the [passenger] side of the vehicle." Id. at 43. The trooper also observed tire marks in the southbound lane , "leading up to the guide rail, marks on the guide rail, and then you could see tire marks coming right to where [the car's] final rest[ing spot] was." Id. at 43-44. Trooper Yetter did not have dash cam video of the accident scene, nor did he photograph any damage to Appellant's car or the tire marks he observed on the road and guide rail. See id. at 55-56. Trooper Yetter included the following diagram of the scene in his crash report:

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Commonwealth Exhibit 2 (police crash report); N.T. 5/16/22, 83-85, 101. Trooper Yetter documented in his crash report that Appellant admitted that he was driving forty-five miles per hour, ten miles per hour over the posted speed limit along State Route 103. Id. at 77.

Trooper Yetter placed Appellant under arrest for suspicion of DUI and transported him to a hospital to conduct a blood draw. See N.T. 5/16/22, 45-48. However, Appellant refused to submit to a blood test. See id. at 46-48, 101; Commonwealth Exhibit 1 (implied consent form). He was later charged with DUI, EWOC, and summary offenses for disregarding a single traffic lane and engaging in text-based communications while driving.

On May 16, 2022, Appellant proceeded to a jury trial on the EWOC charge only. ⁶ After the Commonwealth presented its case-in-chief, Appellant moved for a judgment of acquittal on the EWOC charge, which, following argument, the trial court denied. See N.T. 5/16/22, 102, 116-17. Appellant presented no evidence or testimony. Id. at 141-42. That same day, the jury returned a verdict of guilty on the charge of EWOC. Id. at 179-80; Verdict Slip, 5/16/22, 1. The trial court subsequently found Appellant guilty of the remaining offenses. N.T. 5/16/22, 181; Verdict and Order, 5/16/22, 1.

Appellant proceeded to sentencing on June 30, 2022, at which time, the court imposed twenty-four to forty-eight months’ imprisonment for EWOC and a concurrent term of seventy-two hours to six months’ imprisonment for DUI. ⁷ Sentencing Order, 6/30/22, 1-2. Appellant did not file a post-sentence motion. This timely appeal followed. ⁸ Notice of Appeal, 7/26/22, 1.

Appellant purports to raise the following three issues for our review:

I. Whether the trial court erred in denying Appellant's mot[i]on for judgment of acquittal on the [EWOC] count when the Commonwealth failed to prove that the Appellant drove his vehicle in a manner that created a substantial risk of injury which Appellant consciously disregarded[?]

II. Whether the weight of the evidence supported the guilty verdict on the [EWOC] count when the Commonwealth failed to present evidence that Appellant knew the child was placed in circumstances that could affect the child's welfare[?]

III. Whether the evidence was sufficient to sustain the conviction for [EWOC] when the Commonwealth failed to prove that Appellant acted knowingly[; i]n other words, [did] the Commonwealth present[ ] sufficient evidence that the Appellant knew the child was placed in circumstances that could threaten the child's welfare[?]

Appellant's Brief at 5 (suggested answers and some capitalization omitted).

Preliminary, we note that Appellant's second claim is waived for our review. A challenge to the weight of the evidence must be raised before the trial court either orally or in a written motion before sentencing, or in a post-sentence motion. See Pa.R.Crim.P. 607(A)(1)-(3). Here, Appellant did not file any written motions challenging the weight of the evidence, and the transcript from the sentencing hearing is not included in the certified record. ⁹ See Pa.R.A.P. 1911 ("The appellant shall request any transcript required[.]"). Moreover, we note that Appellant does not present any argument concerning the weight of the evidence in his brief. Thus, we conclude this claim is waived. See Commonwealth v. Bryant , 57 A.3d 191, 196-97 (Pa. Super. 2012) ("Failure to challenge the weight of the evidence presented at trial in an oral or written motion prior to sentence or in a post-sentence motion will result in waiver of the claim.").

Appellant's argument focuses only on his challenge to the sufficiency of the evidence supporting his EWOC conviction. ¹⁰ Our review of a sufficiency claim is well settled:

[W]e 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. ...

Importantly, the jury, 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. Sebolka , 205 A.3d 329, 336-37 (Pa. Super. 2019) (citations & quotation marks omitted).

Section 4304 of the Crimes Code provides, in relevant part: "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. § 4304(a)(1). This Court has developed a three-part test for an EWOC conviction. The Commonwealth must prove:

[(]1) [T]he accused [was] aware of his/her duty to protect the child;

[(]2) [T]he accused [was] aware that the child [was] in circumstances that could threaten the child's physical or psychological welfare; and

[(]3) [T]he 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

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