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COMMONWEALTH PENNSYLVANIA v. JULIA CARDWELL (09/18/86)

filed: September 18, 1986.

COMMONWEALTH OF PENNSYLVANIA
v.
JULIA CARDWELL, APPELLANT



Appeal from the Order entered on August 13, 1985, in the Court of Common Pleas of Philadelphia County, Criminal Division, at No. M.C. 84-10-797, Misc. 8500-1995.

COUNSEL

Ralph D. Samuel, Philadelphia, for appellant.

Vincent W. Furlong, Assistant District Attorney, Philadelphia, for Com., appellee.

Wieand, Beck and Johnson, JJ. Wieand, J., files a concurring opinion.

Author: Beck

[ 357 Pa. Super. Page 40]

This is an appeal from a denial by the court of common pleas of a writ of certiorari to the municipal court, which had convicted appellant Julia Cardwell of violating 18 Pa.C.S.A. § 4304, endangering the welfare of a child.

We are called upon to decide whether the evidence supports proof beyond a reasonable doubt of the intent element of this offense when the appellant, the child's mother, took only inconsistent and ineffectual steps to protect her child from another's severe abuse.

During the relevant time period, appellant Julia Cardwell (Julia) lived in a house in Philadelphia in a family unit with her daughter Alicia and her husband Clyde Cardwell

[ 357 Pa. Super. Page 41]

(Clyde), Alicia's stepfather. For at least four years, beginning approximately in 1979, Clyde engaged in a pattern of sexual abuse of his stepdaughter Alicia. When Alicia was "about eleven" years old,*fn1 Clyde began to buy her sexually stimulating clothing. He then began to photograph the child while clothed and in sexually explicit positions. Later, these photographic sessions included taking of photographs of Alicia either totally nude or wearing only stockings and garter belts. It was Clyde's habit to write sexually suggestive notes to Alicia on an almost daily basis.

Alicia testified that Clyde had vaginal intercourse with her on four occasions and on one occasion had attempted anal intercourse. Alicia became pregnant by Clyde twice in 1983 and had abortions both times, the second abortion occurring on October 18, 1983. There was also testimony that Clyde had sex with the child with the use of a vibrator. The last instance of intercourse occurred in 1984.

Alicia testified that she did not tell anyone about any of the sexual abuse until she told her mother after the second abortion. On cross-examination, Alicia admitted that at first she "played a sort of guessing game with [her mother]" and that it was not until some time in November, 1983, that Julia clearly understood that Clyde had been abusing Alicia.

Julia wrote two lengthy letters to Clyde in January and February of 1984, indicating her full knowledge of this abhorrent situation and warning him vaguely that she would not tolerate it. We note that Alicia testified that she and Julia were afraid of Clyde, that Clyde beat up Julia on one occasion, that he threw and broke things in the house, that he had punched a number of holes in the walls of the house, and that he carried a .357 magnum pistol, which he kept on the mantelpiece. In February of 1984 Julia moved

[ 357 Pa. Super. Page 42]

    some of her and Alicia's clothes to her mother's (Alicia's grandmother's) house. However, both Julia and Alicia remained at home with Clyde. In March 1984 Julia applied for a transfer of Alicia from her school to a school closer to Julia's mother's house. In April 1984, however, Julia's mother's house was demolished by fire, causing the death of Julia's father. The record reveals Julia took no further steps to relieve the situation until Alicia ran away from home on September 14, 1984.

On October 2, 1984, a criminal complaint was sworn against Julia Cardwell, listing Alicia as complainant and charging Julia with violating 18 Pa.C.S.A. § 4304, stating that she: "as parent supervising [Alicia] . . . knowingly endangered the welfare of said child by violating a duty of care, protection, and/or support, to wit: defendant was aware that Clyde Cardwell was having sex with complainant and taking polaroid pictures of complainant in various sexually explicit positions without reporting this to authorities . . . ."

Julia was tried and convicted in a bench trial in Municipal Court of Philadelphia. She was sentenced to one-year probation and appealed the judgment of sentence to Common Pleas Court by filing a petition for a writ of certiorari. Judge Ned L. Hirsh of the Philadelphia Court of Common Pleas denied the writ of certiorari on August 13, 1985. This appeal of the order denying the writ of certiorari followed. On appeal, appellant challenges the sufficiency both of the complaint and of the evidence.

We reject appellant's allegation that the complaint was defective. On review of the briefs, the record, and Judge Hirsh's opinion filed January 14, 1986, we find that the complaint was sufficient under Pa.R.Crim.P. 132. As to this issue we affirm on the basis of Judge Hirsh's opinion.

Appellant's challenge to the sufficiency of the evidence is that the evidence adduced at trial was insufficient to prove beyond a reasonable doubt the intent element of the offense of endangering the welfare of a child. This challenge is in two parts. The first part concerns the intent required by

[ 357 Pa. Super. Page 43]

    the statute defining the offense and is a matter of ...


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