No. 1616 Philadelphia, 1980, Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Cumberland County, No. 996 of 1979.
Ellen M. Burgraff, Assistant Public Defender, Carlisle, for appellant.
J. Michael Eakin, Assistant District Attorney, Carlisle, for Commonwealth, appellee.
Price, Wieand and Hoffman, JJ.
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Larry E. Wright, Sr. was tried non-jury and was found guilty of willful non-support of his minor son. Post-trial motions were denied, and Wright was sentenced to prison for not less than six nor more than twelve months. On appeal, he contends (1) that the evidence was insufficient to support a finding of "willful" non-support; (2) that a court officer's destruction of his notes of appellant's oral statements precluded his testifying to his recollection of such statements; and (3) that the statute is violative of the Equal Rights Amendment of the Pennsylvania Constitution.
Section 4321(a) of the Crimes Code of December 6, 1972, 18 Pa.C.S.A. § 4321(a) provides: "A person is guilty of a misdemeanor of the third degree if he, being a husband or father, . . . willfully neglects to maintain his wife or children, . . . such wife or children being destitute, or being dependent wholly or in part on their earnings for adequate support."
When the word "willful" was used in a similar context in the Civil Procedural Support Law,*fn1 the Supreme Court held that it meant "an intentional, designed act and one without justifiable excuse." Commonwealth ex rel. Wright v. Hendrick, 455 Pa. 36, 40, 312 A.2d 402, 404 (1973). To demonstrate that a failure to support a child was willful, therefore, the evidence must show directly or circumstantially that the parent acted with the conscious object of withholding maintenance or support. See: 18 Pa.C.S.A. § 302(b)(1)(i). It is insufficient to constitute a violation that a parent was unable, through no fault of his own, to contribute to the support of a child. Commonwealth ex rel. Wright v. Hendrick, supra.
In evaluating the sufficiency of the evidence, we must view the evidence in the light most favorable to the
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Commonwealth, as verdict winner, and draw all reasonable inferences therefrom. Commonwealth v. Smith, 484 Pa. 71, 398 A.2d 948 (1979); Commonwealth v. Smallwood, 465 Pa. 392, 350 A.2d 822 (1976); Commonwealth v. Alston, 269 Pa. Super. 573, 410 A.2d 849 (1979). When the evidence in the instant case is viewed in this manner, the following facts appear. On October 16, 1972, appellant was ordered by the Court of Common Pleas of Cumberland County to pay ten ($10.00) dollars per week for the support of a son who was in the custody of his maternal grandmother. From January 1, 1979 until October 26, 1979, appellant paid only fifty ($50.00) dollars on account of that order. From January 29, 1979 to February 27, 1979, the period in which those payments were made, appellant was employed by Valk Manufacturing Company.*fn2 This employment was terminated when appellant voluntarily stopped reporting to work. Shortly thereafter, he took a job at Hafer's Ice and Cold Storage in Chambersburg, where he worked until November 7, 1979. During this period of time, no payments were made on account of the support order, and no contributions were otherwise made by appellant to or for the support of his son.
This was sufficient to enable the fact finder to infer a willful refusal by appellant to support his son. A state of mind by its very nature is subjective; a person's mind cannot be opened so that his or her intent can be observed. In the absence of a declaration disclosing a person's intent, therefore, one "can only look to the conduct and the circumstances surrounding it to determine the mental state which occasioned it." Commonwealth v. O'Searo, 466 Pa. 224, 238, 352 A.2d 30, 37 (1976).
The trial court's finding that appellant had been employed by Hafer's during the period following his voluntary termination of employment in February until November 7, 1979, was based upon an admission made by appellant to John Rinaldi, the Domestic Relations ...