J-A01015-21
2021 PA Super 78
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ALEJANDRO VELA-GARRETT :
:
Appellant : No. 133 EDA 2020
Appeal from the Judgment of Sentence Entered October 3, 2019
In the Court of Common Pleas of Pike County Criminal Division at No(s):
CP-52-CR-0000043-2019
BEFORE: BENDER, P.J.E., OLSON, J., and STRASSBURGER, J.*
OPINION BY BENDER, P.J.E.: FILED: APRIL 23, 2021
Appellant, Alejandro Vela-Garrett, appeals from the aggregate
judgment of sentence of 42 to 96 months’ incarceration, imposed after he was
convicted of, inter alia, driving under the influence of a controlled substance
metabolite (“DUI-metabolite”), 75 Pa.C.S. § 3802(d)(1)(iii), and endangering
the welfare of children (“EWOC”), 18 Pa.C.S. § 4304(a)(1). On appeal,
Appellant challenges the sufficiency of the evidence to sustain his EWOC
conviction, and argues that a new trial is warranted based on the prosecutor’s
references to his co-defendant’s pleading guilty to that offense. After careful
review, we reverse Appellant’s conviction for EWOC, vacate his judgment of
sentence, and remand for resentencing.
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*
Retired Senior Judge assigned to the Superior Court.
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Following a traffic stop, Appellant was arrested and charged with DUI-
metabolite and EWOC, as well as driving under the influence of a drug to a
degree that it impairs the ability to safely drive (“DUI-impaired ability”), 75
Pa.C.S. § 3802(d)(2), tampering with physical evidence, 18 Pa.C.S. §
4910(1), possession of a small amount of marijuana, 35 P.S. § 780-
113(a)(31)(i), possession of drug paraphernalia, 35 P.S. § 780-113(a)(32),
and operating a vehicle without a valid inspection, 75 Pa.C.S. § 4703(a). At
Appellant’s trial for these offenses, the following evidence was presented.
Pennsylvania State Police Corporal Daniel R. Nilon testified that at
approximately 6:30 p.m. on June 11, 2018, he was patrolling in a marked
police cruiser when he observed a white BMW that did not “have the required
Pennsylvania inspection sticker on the windshield….” N.T. Trial, 7/16/19, at
46. The corporal began following the vehicle and activated his lights. Id. The
vehicle pulled over, and “[a]s soon as [Corporal Nilon] went up to the driver’s
door[, he] immediately detected a strong odor of marijuana coming out of the
driver’s window.” Id. at 47. Corporal Nilon identified Appellant as the
individual who was driving the car, and he testified that Appellant’s girlfriend
and co-defendant, Tatyana Figueroa-Garcia, and their three-month-old baby
were also in the vehicle. Id. Corporal Nilon subsequently searched
Appellant’s vehicle, and discovered a digital scale, and an empty “twisted
corner of a baggie[,] which is commonly used to contain some sort of
controlled substance….” Id. at 49. A bag of marijuana was also found in Ms.
Figueroa-Garcia’s pants, which Appellant admitted was his. Id. at 48, 49.
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Corporal Nilon then conducted two field sobriety tests on Appellant,
which he described as follows:
[Corporal Nilon]: I did two tests on [Appellant,] neither of which
are the standardized field sobriety tests. They fall under ARIDE, [1]
or the testing that goes more towards drug[ged] drivers. One is
called lack of convergence. What that does is [that] one effect
THC has on your system is … you are unable to keep your eyes
crossed. … So I … use a pen called the stimulus for testing and I
… go around in a circle and I … bring it in towards … the subject’s
nose and their eyes would cross as they followed the pen in
towards their nose and one eye will not stay crossed. One eye
will bounce back out and it cannot remain crossed. That is a direct
effect of THC being psycho active in their system. … The other test
is one [where] I just ask him to see his tongue. [When s]omeone
… has recently smoked marijuana[,] their tongue is going to be
green and it’s something we commonly see in people who have
recently smoked marijuana[,] and those two things were present
in [Appellant], lack of convergence in his right eye. His right eye
would not remain crossed and then … the green tongue was openly
seen by myself and the other troopers at the scene….
Id. at 50-51.
Appellant also admitted to Corporal Nilon that he had smoked
marijuana, first claiming he had done so the previous night. Id. at 51. When
the corporal confronted Appellant with the fact that the field sobriety tests
showed marijuana was “psycho active in [his] system[,]” Appellant changed
his story to claiming he had smoked that morning. Id. Corporal Nilon testified
that based on his training and experience, “if you’re still seeing the indicators
of … lack of convergence and the green tongue[,]” it indicates that the
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1
Corporal Nilon testified that he is certified in “what[ is] called ARIDE[,] which
is short for advanced roadside impairment detection….” Id. at 43. The
corporal explained that the certification “is geared toward investigating
drugged drivers instead of alcohol” impaired drivers. Id.
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individual “smoked within the last four to six hours….” Id. at 69. Based on
these circumstances, Corporal Nilon testified that he believed Appellant was
impaired by the influence of marijuana at the time of the vehicle stop. Id. at
70, 75. He also testified that, based on his training and experience, he
believed that Appellant was impaired to a degree to which he was not able to
safely drive his vehicle. Id. at 76. Appellant was taken into custody and
transported to the hospital for a blood draw, to which he consented. Id. at
71, 72. Appellant’s blood test revealed that he had forty nanograms per
milliliter of THC Delta 9 Carboxy metabolite, which is the inactive metabolite
of marijuana. Id. at 139, 152, 153.
At the close of Appellant’s trial, the jury acquitted Appellant of DUI-
impaired ability, but convicted him of DUI-metabolite, EWOC, and the
remaining offenses with which he was charged. On October 3, 2019, Appellant
was sentenced to the aggregate term set forth, supra. He filed a timely post-
sentence motion, which the court denied. He then filed a timely notice of
appeal, and he complied with the court’s order to file a Pa.R.A.P. 1925(b)
concise statement of errors complained of on appeal. Herein, Appellant
presents two issues for our review:
1. Whether the evidence presented by the Commonwealth at trial
was insufficient to sustain a conviction on the charge of
[EWOC]?
2. Whether the trial court abused its discretion and committed an
error of law by not giving a cautionary instruction to the jury
after the prosecutor disclosed the … co-defendant’s guilty plea?
Appellant’s Brief at 8.
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Appellant first challenges the sufficiency of the evidence to sustain his
EWOC conviction. “A challenge to the sufficiency of the evidence presents a
question of law and is subject to plenary review.” Commonwealth v. Hitcho,
123 A.3d 731, 746 (Pa. 2015).
In reviewing a sufficiency of the evidence claim, we must
determine whether the evidence admitted at trial, as well as all
reasonable inferences drawn therefrom, when viewed in the light
most favorable to the verdict winner, are sufficient to support all
elements of the offense. Additionally, we may not reweigh the
evidence or substitute our own judgment for that of the fact
finder. The evidence may be entirely circumstantial as long as it
links the accused to the crime beyond a reasonable doubt.
Commonwealth v. Koch, 39 A.3d 996, 1001 (Pa. Super. 2011) (citations
omitted). The factfinder is free to believe all, part, or none of the evidence
presented. Commonwealth v. Frein,
206 A.3d 1049, 1063 (Pa. 2019).
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). EWOC “is a specific
intent offense which was enacted in broad terms to safeguard the welfare and
security of children.” Commonwealth v. Fewell, 654 A.2d 1109, 1117 (Pa.
Super. 1995) (citation omitted). To be convicted under this statute, the
Commonwealth must prove a “knowing violation of a duty of care.”
Id.
(quoting Commonwealth v. Cardwell,
515 A.2d 311, 313 (Pa. Super.
1986)).
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Moreover, this Court has employed a three-prong standard
to determine whether the Commonwealth has met its burden of
establishing the intent element of the EWOC offense. … [T]o
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.
Commonwealth v. Wallace, 817 A.2d 485, 490-91 (Pa. Super. 2002)
(citations and internal quotation marks 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. Commonwealth v. Taylor,
471 A.2d 1228, 1231 (Pa. Super. 1984).
Here, Appellant focuses his argument on the second prong of the EWOC
test, claiming that “the Commonwealth failed to introduce sufficient evidence
to show that [Appellant] ‘knowingly’ placed his child in a situation that would
threaten the child’s physical or psychological welfare.” Appellant’s Brief at 18.
He elaborates:
The evidence introduced at trial showed that [Appellant] was the
subject of a traffic stop that was initiated because the inspection
sticker on [Appellant’s] vehicle did not match the license plate.
Specifically, the inspection sticker was from the [s]tate of New
York while the license plate was registered in Pennsylvania. There
is no evidence that [Appellant] was speeding, driving erratically,
weaving or taking any other action that would indicate he was
under the influence of drugs or alcohol. In fact, Corporal Nilon
testified that [Appellant] exhibited no pre[-] or post[-]stop
indicators of impairment.
The only evidence presented by the Commonwealth regarding
[Appellant’s] alleged impairment was the testimony of Corporal
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Nilon regarding the field sobriety tests given to [Appellant]. The
field sobriety tests were conducted because Corporal Nilon
smelled marijuana in the vehicle, not because [Appellant]
exhibited signs of impairment. There was never testimony that
[Appellant] showed any signs of impairment prior to the initiation
of the test performed pursuant to Corporal Nilon’s ARIDE training.
Corporal Nilon testified that [Appellant] exhibited a lack of
convergence and had a green tongue. In addition to the
[c]orporal’s finding, [Appellant] admitted to smoking marijuana
that morning.
Corporal Nilon testified, pursuant to his training, that the
psychoactive ingredient in marijuana remains in your system and
active for 4 to 6 hours. However, the Commonwealth never
established when [Appellant] last smoked marijuana in relation to
the time of the stop and whether the marijuana would have been
active at any point while operating the vehicle. In fact, [Appellant]
told Corporal Nilon that he smoked marijuana earlier that
morning[,] which was in excess of 6½ hours prior to the time of
the stop. Given [Appellant’s] statement to Corporal Nilon and
Corporal Nilon’s testimony that the psycho-active ingredient of
marijuana remains in the system from 4 to 6 hours, the conclusion
must be drawn that [Appellant] did not drive with a psycho-active
ingredient of marijuana in his system.
Based on the foregoing, the Commonwealth failed to present any
evidence that [Appellant] was aware that the child was in
circumstances that could threaten the child’s physical or
psychological welfare.
Id. at 18-20.
Initially, Appellant is incorrect that there was no evidence to support
that he drove while impaired by the psycho-active effects of the marijuana he
admitted to smoking. As stated, supra, Corporal Nilon testified that
Appellant’s lack of convergence was a “direct effect” of THC being psycho-
active in Appellant’s system. See N.T. Trial, 7/16/19, at 50. The corporal
further testified that, based on the totality of the circumstances and his
observations of Appellant, he believed Appellant was impaired. Id. at 76.
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Nevertheless, based on two cases discussed, infra, we agree with
Appellant that the fact of his impairment, alone, did not demonstrate that he
knowingly placed his child in danger by driving with the child in the vehicle.
First, in Commonwealth v. Mastromatteo, 719 A.2d 1081 (Pa. Super.
1998), the appellant was driving her vehicle with her young son in the car
when a police officer observed her vehicle drift over the middle line three
times.
Id. at 1082. When the officer stopped her car, he observed an open
container of alcohol in the front seat, and the appellant was exhibiting signs
of impairment.
Id. After she failed field sobriety tests, a blood draw was
conducted, which revealed that her blood alcohol content was .168 and she
had 570 nanograms per deciliter of marijuana in her system.
Id. Based on
this evidence, the appellant was convicted of DUI and recklessly endangering
another person (REAP).2 On appeal, we reversed, holding that “driving under
the influence of intoxicating substances does not create legal recklessness per
se[,] but must be accompanied with other tangible indicia of unsafe
driving to a degree that creates a substantial risk of injury which is
consciously disregarded.”
Id. at 1083 (emphasis added).
Second, in Commonwealth v. Hutchins, 42 A.3d 302 (Pa. Super.
2012), Hutchins was driving with his three young daughters in the vehicle
when he made a left turn in front of another car, causing a serious accident.
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2
We noted that the appellant’s REAP conviction seemed to be based both on
the danger she posed to other drivers, as well as “the fact that [the] appellant
had her son in the car.”
Id. at 1082 n.2.
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Id. at 304. A responding police officer smelled, and then found, marijuana in
Hutchins’ vehicle.
Id. The officer also observed that Hutchins’ demeanor was
“unusually calm” and “flat line” after the accident, his “pupils seemed
‘constricted[,]’” and he “admitted to smoking marijuana earlier in the day.”
Id. at 304-05. The officer testified at trial that, “based on his experience and
training, [Hutchins] was under the influence of marijuana and that this had an
impairing effect on his ability to drive.”
Id. The officer did not conduct field
sobriety tests, but Hutchins’ blood was subsequently drawn, revealing
“43ng/ml of carboxy acid[,]” a metabolite of marijuana.
Id. Based on this
evidence, Appellant was convicted of DUI-impaired ability, as well as four
counts of REAP.
On appeal, Hutchins challenged the sufficiency of the evidence to sustain
his convictions. We affirmed his DUI-impaired ability conviction, concluding
that “there was sufficient evidence to establish that the accident was caused
as a result of [Hutchins’] inability to safely operate a vehicle due to the
influence of marijuana.” Id. at 309. Notwithstanding, we reversed his REAP
convictions. We explained:
[Hutchins’] acts in this matter are deplorable; he got high on an
illegal substance and then drove his three young daughters in his
vehicle, resulting in an accident injuring all three of his daughters
and another innocent driver. Nevertheless, we are constrained to
agree that, absent additional evidence of his reckless driving or
conduct, the evidence was insufficient to establish that [Hutchins]
recklessly endangered the lives of others. Based upon our holding
in Mastromatteo and its progeny, the Commonwealth was
required to present evidence of recklessness in addition
to [Hutchins’] intoxication. The only other relevant evidence
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presented in this matter is that an accident occurred. However,
that [Hutchins] exercised poor judgment in negotiating a left turn
does not equate to recklessness. Unlike the defendant’s conduct
in [Commonwealth v.] Sullivan[, 864 A.2d 1246, 1250 (Pa.
Super. 2004) (affirming the defendant’s REAP conviction where,
while intoxicated, the defendant drove one quarter mile in the
wrong direction on an off ramp, which we held “constitute[d]
tangible indicia of unsafe driving and sufficiently established the
mens rea necessary for a[n] REAP conviction”),] and
[Commonwealth v.] Jeter, [937 A.2d 466, 469 (Pa. Super.
2007) (distinguishing the case from Mastromatteo, and holding
that the evidence that Jeter weaved in and out of the roadway and
other drivers for several miles, had a blood alcohol level of 0.21,
and ultimately lost control of his car and striking the center
barrier, was sufficient to sustain his conviction for reckless
driving)], [Hutchins] was not observed acting recklessly, for
example dangerously weaving through traffic in an aggressive
manner, or driving the wrong way on an off ramp. Consequently,
we are constrained to vacate [Hutchins’] judgment of sentence
with respect to his three REAP convictions.
Id. at 312.
Based on Mastromatteo and Hutchins, it is clear we must reverse
Appellant’s EWOC conviction. As in this case, there was evidence establishing
that Mastromatteo and Hutchins were impaired when they drove their
vehicles. While both Mastromatteo and Hutchins exhibited some form of
unsafe driving — with Mastromatteo’s swerving over the middle line three
times, and Hutchins’ causing a serious accident with another vehicle — our
Court held that additional evidence of reckless driving or conduct was
necessary for the Commonwealth to establish that Mastromatteo or Hutchins
had recklessly endangered the lives of the young children in their vehicles.
Here, Corporal Nilon did not observe any unsafe driving by Appellant, or any
other conduct that would constitute a “tangible indicia of unsafe driving to a
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degree that creates a substantial risk of injury which [was] consciously
disregarded.” Mastromatteo, 719 A.2d at 1083. Accordingly, the evidence
was insufficient to demonstrate that Appellant acted recklessly.
Because we cannot conclude that Appellant even recklessly endangered
his child, we certainly cannot conclude that he knowingly did so, as his
conviction for EWOC requires. The terms “knowingly” and “recklessly” are
defined by the Crimes Code, 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.
(3) A person acts recklessly with respect to a material element of
an offense when he consciously disregards a substantial and
unjustifiable risk that the material element exists or will result
from his conduct. The risk must be of such a nature and degree
that, considering the nature and intent of the actor’s conduct and
the circumstances known to him, its disregard involves a gross
deviation from the standard of conduct that a reasonable person
would observe in the actor’s situation.
18 Pa.C.S. § 302(b)(2), (3). It is clear that EWOC’s mens rea of “knowingly”
involves a higher level of culpability than REAP’s mens rea of “recklessly.”
See Commonwealth v. Martir, 712 A.2d 327, 329 (Pa. Super. 1998) (“[A]
conviction for [EWOC] requires proof that the accused acted ‘knowingly,’ i.e.,
that the accused not only knew that he has a duty to protect the child but
also knew that the child was placed in circumstances that could threaten the
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child’s welfare. A conviction for [REAP] obviously requires proof that the
accused acted only recklessly. Thus, a person could never be convicted of
[EWOC] based upon reckless conduct alone.”) (emphasis in original).
Therefore, because Appellant’s conduct did not amount to recklessness under
the reasoning of Mastromatteo and Hutchins, it is clear that the
Commonwealth failed to prove that Appellant knowingly endangered the
welfare of his child. Consequently, we reverse his conviction for EWOC.
Next, Appellant argues that he is entitled to a new trial based on the
prosecutor’s eliciting testimony that Appellant’s co-defendant had pled guilty
to EWOC, and then again referring to his co-defendant’s EWOC guilty plea in
closing arguments. See N.T. Trial, 7/16/19, at 76 (the Commonwealth’s
asking Corporal Nilon if “Miss [Figueroa-]Garcia has already pled guilty to
[EWOC]” and Corporal Nilon’s answering, “Yes”); N.T. Trial, 7/17/19, at 42
(the Commonwealth’s asking the jury to “keep in mind that the co-[d]efendant
… pled guilty already to [EWOC]. So even she recognizes that what [she] and
[Appellant] did that day endangered and violated a duty of protection and care
and support for that baby”). According to Appellant, “[t]his evidence caused
an incurable prejudice against [him] that the [c]ourt failed to attempt to cure
with any cautionary jury instructions.” Appellant’s Brief at 22.
Appellant has waived this claim for our review. He did not object to the
at-issue question and answer by Corporal Nilon, and he did not object to the
prosecutor’s remarks about his co-defendant’s guilty plea during closing
arguments. Appellant also does not point to where he asked the court to
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provide a curative instruction. Consequently, we conclude that Appellant’s
second issue is waived. See Pa.R.A.P. 302(a) (“Issues not raised in the lower
court are waived and cannot be raised for the first time on appeal.”).3
In sum, we reverse Appellant’s EWOC conviction, for which he received
a sentence imposed to run consecutively to his other terms of incarceration.
Because this disposition upsets the trial court’s overall sentencing scheme, we
vacate Appellant’s judgment of sentence and remand for resentencing. See
Commonwealth v. Tanner, 61 A.3d 1043, 1048 (Pa. Super. 2013)
(concluding that our vacating a sentence imposed to run consecutively to
Tanner’s other sentences had “disturbed the trial court’s overall sentencing
scheme” and, thus, a remand for resentencing was required).
EWOC conviction reversed. Judgment of sentence vacated. Case
remanded for resentencing. Jurisdiction relinquished.
Judge Strassburger did not participate in the consideration or decision
of this case.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/23/21
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3
In any event, it would also appear that Appellant’s argument that he was
prejudiced by the admission of this evidence is rendered moot by our reversal
of his EWOC conviction.
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