For the Defense - Vol. 6, Issue 4 - 12

Commonwealth v. Howard:
Clarifying The Mens Rea For Ewoc
Jamie Schuman
O
n August 25, 2021, the Pennsylvania Supreme
Court ruled in Commonwealth v. Waylynn Howard
that when a parent allows her child to ride in a
car-for-hire without a car seat, and there are no other
material facts of record, the evidence is insufficient to
support a conviction for endangering the welfare of
children ( " EWOC " ).1
At issue was the mens rea element:
i.e., whether the mother knowingly endangered her
daughter's welfare.
Howard is the first case in which the Pennsylvania
Supreme Court analyzed the mens rea for EWOC,2
and
the Opinion Announcing the Judgment of the Court
( " OAJC " ) offers a more defense-friendly definition of
the knowledge requirement than the Superior Court has
previously used.
The OAJC used the statutory definition of knowingly
under 18 Pa.C.S. § 302(b)(2)(ii), instead of the weaker
three-pronged test that the Superior Court set forth in
Commonwealth v. Cardwell.3
Section 302(b)(2)(ii) requires
the accused to be " aware that it is practically certain
that his conduct will cause " a perilous or dangerous
situation,4
whereas the Superior Court's test required
that the defendant merely be aware that the child is in
circumstances that threaten or could threaten her physical
or psychological welfare.5
12 For The Defense l Vol. 6, Issue 4
The facts in Howard are straightforward. Waylynn
Howard put her three-year old daughter in the backseat
of a car-for-hire that lacked a car seat.10
Ms. Howard was
the front-seat passenger of the car, which got into a threevehicle
accident on a state highway near Pittsburgh.11
one in the car wore a seatbelt, and no one was seriously
No
Justice Wecht's concurrence in Howard is also important.
It suggests that courts should no longer consider whether
conduct offends the " common sense of the community "
and the " sense of decency, propriety and the morality
which most people entertain, " a standard that the
judiciary has long used in determining sufficiency for
EWOC.6
Justice Wecht explained that it invites a non-uniform
application of 18 Pa.C.S. § 4304(a)(1).7
" This is not law. It is chaos, followed by tyranny. Such
a perverse result undermines the precept that laws must
apply uniformly. " 8
Though the OAJC used the " common sense of the
community " standard, it stated that the test's " continued
vitality ... should be deferred to a future case where the
question is squarely before us[.] " 9
Howard thus presents
defense attorneys with a road map for challenging this
outdated and confusing standard.
Calling this test " amorphous " and " fickle, "

For the Defense - Vol. 6, Issue 4

Table of Contents for the Digital Edition of For the Defense - Vol. 6, Issue 4

Contents
For the Defense - Vol. 6, Issue 4 - 1
For the Defense - Vol. 6, Issue 4 - 2
For the Defense - Vol. 6, Issue 4 - Contents
For the Defense - Vol. 6, Issue 4 - 4
For the Defense - Vol. 6, Issue 4 - 5
For the Defense - Vol. 6, Issue 4 - 6
For the Defense - Vol. 6, Issue 4 - 7
For the Defense - Vol. 6, Issue 4 - 8
For the Defense - Vol. 6, Issue 4 - 9
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For the Defense - Vol. 6, Issue 4 - 11
For the Defense - Vol. 6, Issue 4 - 12
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